T12690
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Robert Francis Erskine and Omega Computer Industries Pty Ltd, (In Liquidation),
Industrial dispute - severance pay in respect of termination of employment as a result of redundancy - application dismissed REASONS FOR DECISION [1] On 5 June 2006, Robert Francis Erskine (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 Omega Computer Industries Pty Ltd (the respondent), (In Liquidation), (AR Yeo & GM Rambaldi as Joint and Several Liquidators) ABN: 37 006 768 734, Pitcher Partners (Liquidators) re severance pay in respect of termination of employment as a result of redundancy. [2] The matter was listed for hearing on 29 June 2006 (Conciliation Conference) at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania. [3] The applicant was employed by the respondent from 19 April 2004, until he was made redundant on 19 December 2005. The respondent has gone into liquidation and is being administered by (AR Yeo & GM Rambaldi as Joint and Several Liquidators) ABN: 37 006 768 734, Pitcher Partners (Liquidators). [4] The applicant represented himself. The respondent did not attend the hearing (Conciliation Conference). [5] The applicant claimed he was made redundant on or about the 19 December 2005 and that the liquidators for the respondent deemed he was not entitled to redundancy. [6] On 29 June 2006, a written submission was provided to the Commission by Pitcher Partners, Accountants Auditors & Advisors, (the Liquidators) on behalf of the respondent. [7] In it's written submission the liquidators stated in part:
[8] And:
FINDINGS [9] I draw the Liquidator's attention to s.29(1A) of the Act, as it had effect at the time of termination:
[10] There is indeed provision "in legislation" for this Commission to award severance pay. [11] However, I turn to s.500(2) of the Corporations Act 2001, which states:
[12] In his decision in Watervale Pty Ltd (in liquidation) v Abey, Tim, a Commissioner of the Tasmanian Industrial Commission & Manning1, Crawford J found at paragraph 18 of his Reasons for Judgment:
[13] I have relied on the reasoning in this authority. [14] I conclude that until a Court, as defined in the Corporations Act 2001 at s.58AA, having first given leave this Commission does not have jurisdiction in this matter, and I so find. [15] The application is dismissed.
James P McAlpine Appearances: Date and Place of Hearing: 1 [2005] TASSC 67
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