Unfair Dismissal Claim Settled in NSWIRComm

An employee applied for unfair dismissal and outstanding superannuation contributions after being dismissed. Despite the company being in receivership, the Commission ordered the company to pay the employee $5,568 within 28 days.

Industrial Relations Commission of New South Wales

CITATION : [NAME] and [COMPANY] [2004] NSWIRComm 286 APPLICANT: [redacted] RESPONDENT: [redacted] CORAM: Sams DP CATCHWORDS : Termination of employment - unfair dismissal - no evidence filed - directions not complied with - claim of outstanding superannuation contributions and compensation for unfair dismissal - applicant's claim not contested - company in receivership - employer's agreement to consent orders - orders made. LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 09/20/2004 EXTEMPORE

JUDGMENT DATE : 09/20/2004

APPLICANT: [redacted] LEGAL REPRESENTATIVES: RESPONDENT: [redacted]

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM : SAMS, DP

22 September 2004 Matter No. IRC04/282 [NAME] and [COMPANY] Application by [NAME] re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION AND ORDERS NSWIRComm 286

1 This is an application, pursuant to s84 of the Industrial Relations Act 1996 ('the Act'), filed by [NAME] ('the applicant'), seeking relief in respect to her alleged unfair dismissal by [COMPANY] ('the respondent'), on 16 January 2004.

2 At directions and conciliation proceedings on 5 March 2004, the applicant appeared in person. There was no appearance by, or on behalf of the respondent. The Commission subsequently re-listed the matter at 9.30am, Monday 15 March 2004. The Commission also put on the record that contact would be made with the respondent, advising that attendance would be required on the next occasion and that an Employer's Reply to the application in accordance with the Commission's practice directions, should be filed by Wednesday 10 March 2004.

3 On the next occasion, [NAME] (Company Director) appeared for the respondent. Following preliminary submissions, the Commission chaired private conferences with the parties. As the conference proved unsuccessful, I set the matter for hearing and issued directions in preparation for the arbitration.

4 On the day of the hearing, it was evident that the Commission's directions had not been complied with. Neither party had filed any evidentiary material and neither party sought to cross examine the other. However, both parties indicated they were ready to proceed with their respective cases.

6 Ms [NAME] sought the payment of unpaid superannuation contributions for a period of six months plus an amount of eight weeks compensation due to the alleged unfair nature of the dismissal.

7 [NAME] did not take issue with the applicant's claim. He conceded that while she may be entitled to monies from the company, the company was now in receivership and could not afford to pay the applicant any amount. However, [NAME] stated that the company would honour any outstanding superannuation, if at all possible.

9 The Commission asked [NAME] if he was prepared to accept a consent order in the applicant's favour. He agreed to this course.

8 On that basis, I make the following orders:

Pursuant to ss89 and 371 of the Industrial Relations Act 1996, the Commission orders that: 1. The respondent, [COMPANY], shall pay to the applicant, [NAME] an amount of $5,568.

2. The amount so ordered shall be paid within 28 days.

3. This matter is now concluded.

Peter J Sams, AM Deputy President

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