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Tasmanian Industrial Commission
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Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

Patricia Kathleen Tilyard
(T12582 of 2006)


Sandy Bay Hi-Fi Retail Pty Ltd



HOBART, 16 June 2006

Industrial dispute - severance pay in respect of termination of employment as a result of redundancy - alleged breach of an award or a registered agreement - entitlement to long service leave - Order issued


[1] On 27 February 2006, Patricia Kathleen Tilyard (the applicant), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of a dispute with Sandy Bay Hi-Fi Retail Pty Ltd (the respondent) re: severance pay in respect of termination of employment as a result of redundancy; alleged breach of award or registered agreement; and, a dispute over the entitlement to long service leave, or payment instead of any such leave, or the rate of ordinary pay at which any such leave or payment is to be paid.

[2] On 1 March 2006, a notification was sent to the applicant and the respondent notifying of the Commission's intent to conduct a hearing (conciliation conference) at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania on 21 March 2006 at 9.30 am.

[3] On 9 March 2006 the Commission received correspondence from Mr Nigel Dreaver (the Director and Secretary of Sandy Bay Hi-Fi Retail Pty Ltd), for the respondent, outlining his views of the application.

[4] On 20 March 2006 a medical certificate was delivered by hand, by Mr Dreaver to the Commission, expressing that he would be unfit to attend the conference.

[5] The Commission chose to hear submissions from the applicant.

[6] On 27 March 2006, a copy of all exhibits and a verbatim transcript was forwarded to the respondent requesting a response within a period of time. No response was forthcoming. A further hearing was set down for Tuesday, 9 May 2006 at 9.30 am.

[7] At the commencement of the hearing it was agreed by Ms Tyson that this matter be heard in parallel with T12589 of 2006 (Mr SC Trotter), T12592 of 2006 (Mr JP Cooper) and T12599 of 2006 (Mr S Reidy). The evidence educed with respect to the events leading up to the closure of business is common to the four matters.

[8] At the hearing the applicant was represented by Ms K Tyson, Working Women's Centre Tasmania. Mr Benson, Ogilvie Jennings, Barristers & Solicitors, sought and was granted leave to appear for the respondent.

[9] At the commencement of the hearing Mr Dreaver, for the respondent, had not appeared. The Commission was informed by Mr Benson that:

"... I have met with the representative of the employer, Nigel Dreaver, as recently as yesterday afternoon in my office expecting him to be here today."1

[10] Mr Benson presented a threshold matter with respect to the applications of Mr Trotter, Mr Reidy and Mr Cooper being out of time.

[11] Mr Benson then sought and was granted a short adjournment to attempt to locate Mr Dreaver. After approximately forty-five minutes the hearing was reconvened. Mr Benson informed the Commission that he had located Mr Dreaver and, although "only twenty minutes away", at the commencement of the adjournment had still not arrived. The Commission elected to continue with the hearing. Mr Benson sought and was granted leave to withdraw.

[12] Approximately one and a half hours after the original commencement of the hearing Mr Dreaver arrived. He offered no apology or explanation for his tardiness. Mr Dreaver continued the representation of the respondent.

[13] The applicant was employed as an Administrator by the respondent on a permanent basis from 3 August 1995, until her alleged retrenchment 6 February 2006. The applicant cited the closure of the business as the reason for her termination.

[14] Mr Dreaver said the applicant left her employment of her own volition when two key employees left. He stated that as a result of these two employees leaving the business could not function and had to close down

[15] The applicant sought pro-rata long service leave, payment of outstanding annual leave, payment in lieu of notice and redundancy commensurate with her 10.5 years of service.

[16] Mr Dreaver sought forfeiture of one weeks wages in lieu of notice.


[17] In evidence it was stated by both Mr Reidy and Mr Cooper that they were made aware, some time prior to Christmas 2005, that there was a probability that the respondent would cease operation in the foreseeable future. It was alleged by Mr Cooper that Mr Dreaver had confided in him at that time, that due to poor health he would be forced to close the business. This was not challenged.

[18] It was further alleged by Mr Reidy that the respondent had been given notice to quit the premises by the property's landlord.

[19] Mr Dreaver initially denied there was an issue with the lease. Subsequently however, in his further evidence, he alluded to "ongoing negotiations" with the landlord, which facilitated him still occupying the premises. He further denied the business was in danger of closing at that time. He cited another local business, Danny Burkes, which ran a closing down sale "for a very extended time".

[20] Mr Dreaver broached the subject of starting a sale on Boxing Day with some of the employees. Mr Cooper, Mr Reidy and Mr Trotter all said Mr Dreaver wanted to conduct a sale during that time, but would not pay penalty rates. Although some agreed to work for ordinary time payment, the sale did not eventuate.

[21] There were general discussions with the employees and the respondent, and between the employees themselves, regarding setting up a `closing down' sale for January.

[22] Mr Reidy said that he approached Mr Dreaver asking for all the staff to be given time off around the post Christmas - New Year period. He said he reminded Mr Dreaver that the staff had worked for an extended period without time off and that he, Mr Dreaver, would require that time to organize the sale. He also said he discussed with Mr Dreaver that the break would help the employees get motivated to maximize the sales effort in the proposed closing-down sale.

[23] Although challenging Mr Reidy's evidence as to why time off was given to the employees, Mr Dreaver conceded he had charged Mr Reidy with boosting morale.

[24] The applicant, and the other three employees, claimed Mr Dreaver was evasive when challenged on issues of the business closure and of payment of entitlements. Mr Reidy, Mr Cooper and Mr Trotter all said that at various times they spoke to Mr Dreaver, either personally or by telephone, regarding closure of the business and payment of entitlements. This was not challenged.

[25] Indeed, evidence was presented that Mr Dreaver had been in negotiations with a representative of Bartertrade to have entitlements paid out in vouchers redeemable for goods and service.2 The employees rejected this notion.

[26] It was alleged the situation became so frustrating the employees, including the applicant, en masse penned a letter on 16 January 2006 demanding answers to their concerns3.

[27] The main points of the letter were as follows:

"1) Are you closing the business down or are you just closing the shop front as brought about by the landlord foreclosing the lease?

2) What date does our termination of employment come into effect.

3) If termination is not Jan 31st, what are your expectations / requirements of us as employees after that date?

4) Can you please provide written notices of your intentions? (As previously requested by John and Steven!)

5) What are your intentions regarding the payment of accrued entitlements ... may be legally binding on you?

6) Is paying of these entitlements entirely dependent on the sale of stock and fixtures ...?

7) If it is not dependent on that sale, what is the likely date that these termination payments will be made?

8) ..."

[28] The gist of Mr Dreaver's curt scribbled reply4, was as follows:

"1) Closing down as discussed.

2) ... will be Feb - will advise definite date by Friday ...

3) Employed as normal if available

4) This is it & as discussed

5) They are legally binding as you say

6) Yes. - ...

7) See above

8) ..."

[29] As a result of alleged evasiveness by Mr Dreaver, after he had replied to their letter of 16 January, it was stated by the applicant, Mr Reidy, Mr Trotter and Mr Cooper that another letter was sent requesting further clarification. This letter, composed by Mr Cooper, was dated 31 January 20065. Again, in that letter the applicants sought some commitment from the respondent:

"... I once again am asking that you tell us, on what date our Termination of Employment is, and if accrued entitlements will be paid on that date.

In answer to our letter of 16th January you gave 2 dates for termination, is it either:-

1) Some time in February ... or,

2) February 4th

... If it will not be on the date of termination, on what date do you expect it will be. ...

We are also requesting that you provide each of us with a redundancy package, ... that being 2 weeks pay for each year of employment.

We require a firm commitment and definitive answers, ... no later than the close of trade on Thursday 2nd February."

[30] The respondent did not reply to this letter.

[31] Mr Reidy gave evidence that he took a telephone call from Mr Dreaver on the afternoon of the 2 February 2006. The gist of which was that he was told that his last day of work would be Friday, 3 February 6006. He was also asked to notify the applicant that her last day of work would also be Friday, 3 February 2006; and to inform Mr Trotter his last day of work was to be Saturday, 4 February 2006. The applicant and Mr Trotter confirmed that Mr Reidy did, indeed, inform them of the date of their last workday.

[32] At paragraph 732 of transcript, Mr Dreaver said:

"In fact, Mr Reidy would have been the last person I would have informed. ... I would have spoken to Mr Cooper or I would have spoken to Ms Tilyard ..."

[33] Mr Dreaver did not deny a conversation took place, but denied the content.

[34] It followed that: Mr Reidy finished on 3 February 2006; Mr Trotter finished on 4 February 2006; but the applicant did not finish as expected on the 3 February 2006.

[35] The applicant stated she spoke to Mr Dreaver on the afternoon of 3 February 2006. She said she had expressed her grievance at hearing of the demise of her employment from a third party.

[36] Mr Dreaver acknowledged a conversation took place between himself and the applicant. However, he evaded committing to the applicant's account of that aspect of the conversation.

[37] The applicant further stated that during this conversation she, with Mr Dreaver's permission, arranged to work on Monday, 6 February 2006 to complete important bookwork. On 4 February 2006, the applicant said she cancelled a cheque to herself for wages and re-issued another to include pay for 6 February 2006. She left a note for Mr Dreaver explaining what she had done.

[38] The hand-written note dated 4/2/06 (referred to, together with a copy attached, in the correspondence to the Commission by Mr Dreaver dated 9 March 2006) reads:


I have cancelled my cheque & written this one to include Monday. So my termination date will be 6/02/06.

I will come in on Tuesday (in my own time) to finish entering invoices & do some filing.

John has not got his cheque, because he doesn't know how many days he will be here.

K" (signed)

[39] Mr Dreaver stated that this note was evidence the applicant had resigned her position. He said he did not terminate her employment. It was stated by Mr Benson, during the course of submissions on behalf of the respondent:

"At no stage, as I say, were the employees told, "Your job will finish on this date," at no stage were they told, "You are to go home, there's no further work," or anything like that. In each of the cases of the four applicants, although it occurred on various days, they in some cases, advised Mr Dreaver that they were going to finish on a certain date. ... in the cases of Mr Cooper and Mrs Tilyard, on my instructions they attended work on Monday, 6 February, and the first Mr Dreaver knew that they were no longer working there was when he rang the store mid afternoon and found that there was no one there to answer the phone and that the store had been shut up early."6

[40] When challenged as to why a 63-year old employee would just walk out of a job leaving a note, Mr Dreaver replied:

"THE COMMISSION: So can you tell me why a 63-year-old woman would just walk away from a job?---I don't think she had any choice after Mr Reidy and Mr Trotter had left. She realised that, I mean, she knew the position of the company as well, that she just had no choice after that because the decision was made on the Monday to close the store."7

[41] The applicant continued to work for some days for no remuneration.

[42] Mr Dreaver stated8 that no one was given notice to quit:

"... they have all said that they were given notice to quit?---Oh, but they haven't received any notice to quit at all."

[43] Mr Dreaver cited his response #3 to the letter of the 16 January as evidence of his intention to maintain the employment of his staff.


[44] There was a strong and consistent case put by the applicant and the three other employees, that it was common knowledge the respondent was in the final stage of closing the business down in January and February of this year. Mr Dreaver's assertion that the business only closed because two key employees left is outweighed heavily by evidence from the applicant and the other employees and his own evidence contradicting his stated position. The respondent's reply to the letter of 16 January 2006 clearly shows the process of closing the business was well progressed.

[45] Mr Dreaver said he was aware of the two employees intent to leave yet made no attempt to mitigate the impact on the business by either recruiting to fill the potential voids or negotiating with either or both employees to stay.

[46] In the entire matter of dealing with this application, I found Mr Dreaver to be evasive, deliberately obtuse and much of his assertion to be calumnious. Indeed, his response #3 to the letter of the 16 January 2006, in my view, further confirms his evasiveness and duplicity.

[47] Mr Dreaver would not admit he had given instructions to Mr Reidy to inform the applicant of the demise of her employment. He did admit to speaking with the applicant after she had been given the news.

[48] I accept the applicant's recollection of her conversation with Mr Dreaver on 3 February 2006, in that she discussed her termination and her desire to complete outstanding work before she finally ceased employment.

[49] At no stage did Mr Dreaver withdraw the notice of termination relayed by Mr Reidy to the applicant.

[50] Mr Dreaver's assertion that the note (as previously mentioned, a copy of which formed part of his reply to the Commission, on behalf of the respondent of 9 March 2006) left by the applicant explaining her actions in changing a cheque was a notification of resignation is absurd. His further assertion that an employee of more than ten years would walk out of a job because she realized " she had no choice" is fanciful in the extreme.

[51] It was stated by Mr Benson:

"... in the cases of Mr Cooper and Mrs Tilyard, on my instructions they attended work on Monday, 6 February, and the first Mr Dreaver knew that they were no longer working there was when he rang the store mid afternoon and found that there was no one there to answer the phone and that the store had been shut up early."

[52] I find this assertion to fly in the face of any credibility in Mr Dreaver's version of the events.

[53] Mr Dreaver's statement that the business need not have closed down at the time it did, is contradictory to his own evidence in the reply to the letter of the 16 January 2006. In it he mentioned early February as an expected time for closure. He also stated that the payment of employees' entitlements was dependent on the sale of stock. It was common knowledge that Mr Dreaver was in negotiations with Bartertrade to broker a deal with respect to employee entitlements. No other conclusion can be drawn; the respondent had chosen to wind up his business around February of this year.

[54] I find the applicant's employment was terminated on or around the 6 February 2006 as a result of redundancy. I further find that the applicant is entitled to payment of outstanding leave, one week's pay in lieu of notice as per the Clerical and Administrative Employees (Private Sector) Award, pro-rata long service leave, redundancy of two weeks wages for each completed year of service.


I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, that Sandy Bay Hi-Fi Retail Pty Ltd, pay to Patricia Kathleen Tilyard, the sum of twenty eight thousand seven hundred and fifty four dollars and eighty-one cents made up as follows:

Accrued leave of 88 days


Notice of one week

$ 602.65

Redundancy of 2 weeks for each completed year of service


Pro-rata long service leave for 10.5 years

$ 5,492.52



The above amount of twenty eight thousand seven hundred and fifty four dollars and eighty-one cents to be paid to Patricia Kathleen Tilyard by no later than 5.00 pm on Friday, 7 July 2006.

James P McAlpine

Ms K Tyson, Working Women's Centre Tasmania, for Patricia Kathleen Tilyard
Mr R Benson, Ogilvie Jennings, Barristers & Solicitors, and Mr N Dreaver, for Sandy Bay Hi-Fi Retail Pty Ltd

Date and place of hearing:
March 21
May 9

1 Transcript, PN225
2 Exhibit AC1 (T12599)
3 Exhibit AB1 (T12589)
4 Exhibit AB2 (T12589)
5 Exhibit AB3 (T12589)
6 Transcript PN276
7 Supra 735
8 Supra 742