T12584
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Dennis Raymond Bassett and Ian Graham, McKenzie Street Wreckers, G.B.P. Nominees Pty Ltd
Industrial dispute - application amended - termination of employment - severance - application dismissed REASONS FOR DECISION [1] On 28 February 2006, Dennis Raymond Bassett (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 Ian Graham, McKenzie Street Wreckers, G.B.P. Nominees Pty Ltd (the respondent) arising out of his alleged unfair termination of employment; and severance pay in respect of termination of employment as a result of redundancy. [2] The matter was listed for hearing on 24 March 2006 (Conciliation Conference) and 21 April 2006 at the Supreme Court, Cameron Street, Launceston, Tasmania. [3] The applicant was employed by the respondent from March 2003 until the business changed hands on 28 February 2006. At some point he was given some `managerial' experience. Around 16 February 2006, the two employees of the respondent were informed of the impending sale. One employee was informed he was to be made redundant, while it is asserted the applicant was informed his employment would be ongoing and he would be transferred to the new owner. [4] The applicant challenged this and demanded a redundancy. He claimed he was owed a redundancy payment and outstanding entitlements. BACKGROUND [5] The respondent had informed his staff in February 2005 of poor business prospects and the reality of him having to sell the business. Negotiations for the sale of the business were completed in February 2006. As part of the sale, the respondent negotiated with the purchaser that the applicant would enjoy a role with the new business and maintain continuity of employment. [6] The respondent provided the Commission with a statement from the new owner, Mr T Jory, received on 19 April 2006, that confirmed the agreement as follows:
[7] The applicant was advised of the arrangement and asked to make an appointment to see Mr Jory. This was not challenged. The respondent asserted he spoke to the Department of Infrastructure and Energy, with respect to the payment of redundancy. He asserted he was advised that in the instant situation a redundancy payment was not warranted. The other employee, who did not transfer, was offered a redundancy payment. [8] What followed was a period of what appears to be, the applicant demanding to be paid a redundancy and some heated confrontations, to the point where the respondent had the police remove the applicant from site. It was alleged, and not disputed, the applicant insisted on having the redundancy payment agreed before he would approach the new owner to discuss his employment. [9] At the hearing on 21 April 2006, the applicant produced a copy of correspondence from Mr Jory stating that: "Dennis Bassett started work with me on 1st March 2006 on 3 mths probation."1 [10] The applicant's advocate, Ms D Butler, asserted that the probationary condition did not guarantee ongoing employment and that a redundancy payment was sought. [11] At the conciliation conference on 24 March 2006, the applicant (who represented himself at the conference) asserted he was owed entitlements. He could not quantify how much or for what. [12] The respondent asserted all monies had been paid into the applicant's account. He quoted payment amounts and the dates they were deposited. He subsequently followed this up with corresponding paperwork. [13] At the hearing, through his advocate, the applicant conceded he had indeed received all his entitlements. FINDINGS [14] I found the applicant's approach to the proceedings opportunistic in the extreme. He exaggerated his length of service with the respondent. He asserted he was owed entitlements, but could provide no details. He acknowledged he had significant payments made to his bank account, but asserted they were insufficient to cover his entitlements, however, offered no reasoning. Yet he eventually conceded, he had had all his entitlements paid as was asserted by the respondent at the outset of the proceedings. He aggressively insisted on being paid a redundancy payment and did not acknowledge the respondents goodwill in having his employment transferred with the business. [15] The respondent, as part of the sale of the business, arranged for the applicant to maintain a position with the new owner. He had no obligation to do this. He made redundancy payments to an employee who was genuinely made redundant. In my view, the respondent has conducted himself in quite an acceptable and appropriate manner. [16] No reason was educed for the new employer imposing a probationary period on the applicant. However, that later condition was beyond the control of the respondent. Indeed the successful completion of the probationary period is in the applicant's own hands. [17] The applicant, Dennis Raymond Bassett, was not made redundant and is therefore not entitled to redundancy payments, and I so find. [18] The application is dismissed.
James P McAlpine Appearances: Date and place of hearing: 1 Exhibit A1
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