IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

REASONS FOR DECISION

APPEARANCES:

DATES AND PLACES OF HEARING:

4 July 1988 Hobart

This matter concerns a reference of dispute to the Commission pursuant to Section 13(2) of the Long Service Leave Act 1976.

The evidence presented to the Commission is that Mrs Tracey Ann Marie Stewart was first employed by Mr Kevin Palmer of "Kevin's Salon" at Sandy Bay commencing on 7 January 1980. In 1982 Mr Palmer opened a new salon at Glenorchy and Mrs Stewart was transferred by him to the new salon.

However, on 1 November 1987 the salon was sold to Mrs Sandra Lipscombe, now trading as "Hair Mechanix", and the services of Mrs Stewart were retained until she was dismissed on 20 June 1988 as a cost-saving measure.

These facts are undisputed, and because transmission of the business occurred; and there was continuity of employment by an employee for in excess of seven (7) years; and the employee was dismissed for reasons other than serious and wilful misconduct, a clear entitlement to pro rata long service leave was created.

The only factor holding up payment has been a private dispute between Mr Kevin Palmer and Mrs Lipscombe concerning an alleged arrangement to proportionally share the cost of any long service leave entitlement of Mrs Stewart.

Regardless of any other factor the provisions of Section 5(4) of the Act make it abundantly clear that the last employer is responsible for the whole period of employment. That provision is expressed thus:

"5(4) [Transmission of business] Where a business is, whether before or after the commencement of this Act, transmitted from an employer (in this subsection referred to as `the transmittor') to another employer (in this subsection referred to as `the transmittee') and a person who at the time of the transmission was an employee of the transmittor in that business becomes an employee of the transmittee -

(a) the continuity of the employment of that employee shall be deemed not to have been broken by reason of the transmission; and

(b) the period of employment of the employee with the transmittee shall be deemed to include the period of his employment, and any period deemed to be a period of the employment, with the transmittor."

Accordingly, I find in favour of the employee in this matter and Order that Mrs Sandra Kim Lipsombe, trading as "Hair Mechanix", Shop 6, Glenorchy Central Shopping Centre, Glenorchy, pay to Mrs Tracey Ann Marie Stewart of 2 Bramba Street, Roches Beach, the sum of $2,487.17 in full settlement of her long service leave claim.

And I further Order that such sum be paid within seven (7) days from Tuesday 4 July 1989.

A Robinson
DEPUTY PRESIDENT