Pendergast v Clayton Smith Automotive Pty Ltd [1996] IRCA 366

DECISION NO: 366/96 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - failure to discharge the respondent's onus of proving that a "restructuring" occurred by reason of the OPERATIONAL REQUIREMENTS of the company - respondent ceased to trade with director of company recommencing same business from the respondent's premises using respondent's equipment - whether transaction a sham - HARSH, UNJUST OR UNREASONABLE - failure to make bona fide offer to applicant of alternative employment with new corporate entity - failure to take any real steps to ameliorate harshness of alleged restructuring Industrial Relations Act 1988 ss.170DB, 170EE(2), 170EE(3) GLEN PENDERGAST -v- CLAYTON SMITH AUTOMOTIVE PTY LTD (A.C.N. 010 877 022) No. QI 1047 of 1996 Before: Judicial Registrar Millane Place: Melbourne (heard in Brisbane) Date: 13 August 1996

INDUSTRIAL RELATIONS COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QI 1047 of 1996 B E T W E E N : GLEN PENDERGAST Applicant A N D CLAYTON SMITH AUTOMOTIVE PTY LTD (A.C.N. 010 877 022) Respondent MINUTES OF ORDERS Judicial Registrar Millane 13 August 1996 THE COURT DECLARES THAT: 1. The termination of the applicant's employment by the respondent contravened Division III Part VIA of the Industrial Relations Act 1988. AND THE COURT ORDERS THAT: 2. Within 21 days of the date of these orders the respondent pay compensation to the applicant in the sum of $6,908.00 less any sum required to be deducted therefrom by the respondent pursuant to the Income Tax Assessment Act 1936 and actually paid to the Commissioner of Taxation. 3. Within 14 days of the date of these orders the respondent file with the Industrial Relations Court of Australia at its Queensland District Registry at Level 6, Commonwealth Law Courts, 119 North Quay, Brisbane, a copy of any orders made by any Court between October 1995 and 29 July 1996 in any way prohibiting the distribution of or affecting the operation of the bank accounts, the business and the assets of - (a) Clayton Smith Automotive Pty Ltd (A.C.N. 010 877 022); and (b) Clayton Smith Automotive Service Centre. - 2 - 4. Within 14 days of the date of these orders the respondent file with the Industrial Relations Court of Australia at its Queensland District Registry at Level 6, Commonwealth Law Courts, 119 North Quay, Brisbane, a list of the names and addresses of - (a) his wife (or former wife, as the case may be) as at 1 March 1996; (b) the solicitors acting for his wife (or former wife, as the case may be) referred to in part 4(a) of this order; and (c) any person or persons in whose favour the Court orders referred to in order 3 above are or were made. AND FURTHER THE COURT DIRECTS the District Registrar of the Queensland District Registry of the Industrial Relations Court of Australia to - (a) enter these orders; and (b) serve a copy of these orders and reasons for judgment on each person named in the list filed and referred to in the preceding order. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.