John Anthony Ardino v Count Financial Group Pty Limited [1994] IRCA 109

C A T C H W O R D S INDUSTRIAL LAW - Termination of employment - Claim of unlawful termination - Question whether Subdivisions B and C of Division 3 of the Industrial Relations Act apply to the termination - Whether the "relevant wages" of the applicant exceeded $60,000 during the period of 12 months before termination - Whether computation should include moneys earned but not paid in this period - Whether payments made at the applicant's direction to a superannuation fund should be included - Whether Court should allow proceeding to continue so that applicant may add a claim in the Court's associated jurisdiction. Industrial Relations Act 1988, ss.170CD, 170EA, 170EE, 430. JOHN ANTHONY ARDINO v. COUNT FINANCIAL GROUP PTY LIMITED NO. NI 517 of 1994 CORAM: WILCOX CJ PLACE: SYDNEY DATE: 14 NOVEMBER 1994

IN THE INDUSTRIAL RELATIONS COURT ) ) No. NI 517 of 1994 OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) BETWEEN: JOHN ANTHONY ARDINO Applicant AND: COUNT FINANCIAL GROUP P/L ACN 001 974 625 Respondent CORAM: WILCOX CJ PLACE: SYDNEY DATE: 14 NOVEMBER 1994 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The Application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT ) ) No. NI 517 of 1994 OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) BETWEEN: JOHN ANTHONY ARDINO Applicant AND: COUNT FINANCIAL GROUP P/L ACN 001 974 625 Respondent CORAM: WILCOX CJ PLACE: SYDNEY DATE: 14 NOVEMBER 1994 REASONS FOR JUDGMENT WILCOX J: This is a Notice of Motion, referred to me by a Judicial Registrar, whereby a respondent to an unlawful termination of employment claim seeks an order that the proceeding be dismissed for want of jurisdiction. As a general rule, I do not favour pre-trial applications for dismissal. Ordinarily, it is better for all issues to be determined at the one time. However, sometimes there is no doubt about the relevant facts, but an issue of law that, decided one way, must lead to dismissal of the proceeding. In such a case it may be appropriate to entertain a pre-trial application for dismissal. When the matter came before me, it quickly became apparent that this is such a case. Accordingly, I heard argument on the motion. I have now reached the view that the case is outside the jurisdiction of the Court and must be dismissed. The facts The applicant, John Ardino, was employed for some years by the respondent, Count Financial Group Limited, formerly known as Investment & Tax Service Pty Ltd. His employment was terminated on 24 June 1994. On 8 July 1994 he commenced the present proceeding by filing an Application in which he sought a declaration that the termination contravened Division 3 of Part VIA of the Industrial Relations Act 1988 and an order for payment of compensation. He relied solely on the Act; he did not make any claim based on breach of contract. Affidavits were subsequently filed. One of them was made by Kylie Lambert, financial controller of the respondent. The part of this affidavit that was read by counsel for the respondent in support of this motion said: "8. In relation to the financial year ended 30 June 1994, the Applicant's total remuneration package comprised: (a) a base salary of $75,000.00; (b) 5% superannuation contribution ($3,750.00) paid by the Respondent; and (c) a Christmas bonus of $1,000.00 together with an additional bonus of $5,000.00. 9. In relation to the base salary component, the Applicant, of his own volition, decided to divert some of his income. 10. In early May 1994, the Applicant left a signed note asking me to pay his May salary into the A & N Ardino Superannuation Fund. 11. In early June 1994, the Applicant approached me and we had a conversation to the following effect: He said: Can you please pay my salary into the A & N Superannuation Fund. I said: Okay. 12. Annexed hereto and marked 'C' and 'D' respectively are cheque butts dated 1 May 1994 and 1 June 1994. The cheques to which these butts were attached, were paid into the Applicant's nominated superannuation fund. They were debited to the Respondent's bank account and represented the Applicant's salary for the months of May and June 1994. 13. In view of the foregoing salary certificate, the Applicant was paid $63,000.00 for work performed in the months July 1993 through to April 1994. A copy of the financial spreadsheet detailing payments made to the Applicant for those months is annexed hereto and marked 'E'. 14. Annexed hereto and marked 'F' is a copy of the Applicant's Group Certificate for the financial year ended 30 June 1994. That Group Certificate does not take into account the payments referred to in paragraph 10 of this Affidavit." Annexure "C" is a cheque butt dated 1 May 1994 and endorsed: "John Ardino's salary no tax deducted gross paid into self managed super fund $6,750. This includes $500 from last month". Annexure "D" is a cheque butt dated 1 June 1994 referring to a cheque for $6,250 and endorsed "John Ardino Superannuation". The spreadsheet, annexure "E", contains information relating to several employees, one of them Mr Ardino. The relevant information is: July August September Gross 6,340.00 6,160.00 12,500.00 Tax 2,350.00 2,350.00 4,700.00 Net 3,990.00 3,810.00 7,800.00 October November December Gross 0.00 6,250.00 7,250.00 Tax 0.00 2,350.00 2,259.30 Net 0.00 3,900.00 4,990.70 January February March Gross 6,250.00 6,250.00 6,250.00 Tax 2,259.30 2,259.30 2,259.30 Net 3,990.70 3,990.70 3,990.70 April May June Gross 5,750.00 0.00 0.00 Tax 2,017.30 0.00 0.00 Net 3,732.70 0.00 0.00