TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s29 application for hearing of an industrial dispute

Pania Puarito Tata
(T10387 of 2002)

and

Watts Communications Australia Pty Limited (In Liquidation)

Industrial dispute - severance pay in respect of termination of employment as a result of redundancy - order issued

REASONS FOR DECISION

[1] On 22 August 2002, Pania Puarito Tata (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of an industrial dispute with Watts Communications Australia Pty Ltd (the employer) in relation to severance pay in respect of termination of employment as a result of redundancy.

[2] The matter was listed for hearing in Ulverstone on 19 September 2002.

[3] Ms Tata represented herself. The Liquidator was not represented. Having satisfied myself that the Liquidator had been properly served with the notice of hearing, I determined that Ms Tata should proceed to outline her application.

[4] Ms Tata was employed by the employer from 31 August 1998 until 30 July 2002. She was employed on a full-time basis [38 hours per week] and paid at the rate of $13.25 per hour.

[5] I note that the separation certificate refers to the employer as "Watts Communications [Aust] P/L [Administrators Appointed]". I surmise that at some stage subsequent to Ms Tata's termination the Company moved from the status of "Under Administration" to that of "In Liquidation".

[6] The relevant industrial instrument is The Watts Communications [Australia] Pty Ltd [Tasmania] Agreement 1998.

[7] This Agreement does not contain a provision relating to redundancy.

[8] Ms Tata claimed a redundancy payment based on two weeks' pay for each completed year of service.

[9] At the conclusion of Ms Tata's submission, I wrote to the liquidator in the following terms:

"Dear Sirs

Re: T10387 of 2002

Pania Puarito Tata and Watts Communications Australia Pty Ltd

This matter was listed for hearing on Thursday 19 September 2002 commencing at 10.00am. A Notice of Hearing was faxed to your office on 6 September and I understand my Associate had previously discussed this date with you per telephone.

When the matter commenced the employer was not represented. In the circumstances I determined that the matter should proceed.

Ms Tata presented a claim for a redundancy payment calculated on the basis of two weeks pay for each completed year of service. At the conclusion of the hearing I indicated that the application was not inconsistent with established standards of this Commission, and in the absence of a compelling submission to the contrary, the claim would be granted.

The purpose of this letter is to provide a further opportunity to make representations in respect of this claim. If you wish to take up this opportunity such written submission is to be with the Commission not later than Wednesday 2 October 2002, with a copy to the applicant.

In the absence of any submission an Order will be issued pursuant to section 31 of the Industrial Relations Act 1984, the effect of which will be to grant the application.

A transcript of the 19 September proceedings will be forwarded to your office in the next few days."

[10] Correspondence dated 2 October 2002 was received from Dibbs Barker Gosling, lawyers for the Liquidator.

[11] It was submitted that Ms Tata is not entitled to proceed with the application without the leave of the court. Sections 417B and 500 of the Corporations Act 2001 are relied on to support this contention.

[12] Whilst I note this submission, I point out that the Tasmanian Industrial Commission is an independent tribunal established under its own statute. To the best of my knowledge, the Commission has never been considered to be a "court" [s. 417B above refers].

[13] This application is pursued under s. 29[1A] of the Industrial Relations Act, which, relevantly, states:

"(1A) A former employee may apply to the President for a hearing before a Commissioner in respect of an industrial dispute relating to -

...

(b) severance pay in respect of employment of the former employee terminated as a result of redundancy; or ..."

[14] In my view Ms Tata's application is validly made.

[15] The submission went on to contend that the application lacked merit in that the relevant industrial instrument did not contain provision for redundancy.

[16] This is not a submission that holds up in the Tasmanian context. This Commission has consistently determined redundancy issues on a case-by-case basis. Authority for this approach can be found in the Full Bench decision relating to the Retail Trades Award.1 For this reason prescriptive redundancy clauses can be found in few, if any Tasmanian State Awards.

[17] An examination of decisions of this Commission will reveal a general standard of two weeks' pay for each completed year of service is well established as a prima facie position. Consistent with the case-by-case approach, the general standard is varied, both upwards and downwards, to meet the circumstances of individual cases.

[18] In this particular case, nothing has been put which persuades me to depart from the general standard.

[19] Accordingly, I propose to grant the application and issue an order calculated on the basis of two weeks' pay for each completed year of service. This amounts to a total of six weeks' pay.

Order

Pursuant to Section 31 of the Industrial Relations Act 1984, I hereby order that Watts Communications Australia Pty Limited [In Liquidation], pay to Pania Puarito Tata, 1 Sunset Court, Devonport, 7310, the amount of three thousand and twenty one dollars [$3021] by way of a redundancy payment, such payment to be made within twenty-one days of the date of this decision.

Tim Abey
COMMISSIONER

Appearances:
Ms P Tata, self-represented

Date and Place of Hearing:
2002
September 19
Ulverstone

1 T.125 of 1985 13/9/1985