Tollis v Worldmaster Placements Pty Ltd [1997] IRCA 235

DECISION NO:235/97 C A T C H W O R D S INDUSTRIAL LAW - Workplace Relations Act 1996 ss.170 * CASES: Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200. TOLLIS -v- WORLDMASTER PLACEMENTS PTY LTD AND TREK RECRUITMENT PTY LTD (trading as TREK RECRUITMENT AND MARKETING) No. VI-2220 of 1996 Ryan JR Melbourne 1 August 1997 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-2220 of 1996 B E T W E E N : TOLLIS Applicant AND WORLDMASTER PLACEMENTS PTY LTD AND TREK RECRUITMENT PTY LTD (trading as TREK RECRUITMENT AND MARKETING) Respondent MINUTES OF ORDERS Judicial Registrar Ryan 2 August 1997 THE COURT ORDERS: 1. That the application be dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-2220 of 1996 B E T W E E N : TOLLIS Applicant AND WORLDMASTER PLACEMENTS PTY LTD AND TREK RECRUITMENT PTY LTD (trading as TREK RECRUITMENT AND MARKETING) Respondent Ryan JR Melbourne 1 August 1997 REASONS FOR JUDGMENT THE CLAIM This is an application for relief in respect of termination of employment. When the application was filed in the Australian Industrial Relations Commission the Respondent was named as Worldmaster Pty Ltd. A DISPUTE AS TO THE STATUS OF THE RESPONDENT. WHO WAS THE EMPLOYER? When the Court received a Certificate issued under s170ED Worldmaster Pty Ltd was still the Respondent. The Notice of Employer's Appearance bore the signature of Peter A Ruston who described himself as Managing Director. Mr Ruston identified Worldmaster Pty Ltd as the employer named in the application (i.e. the original application under s170EA) but also indicated that the employee had not given the correct name of the employer and that Worldmaster Pty Ltd was not the true employer. In paragraph 15 of the Notice of Appearance (Form R29), under a heading "Reasons for Termination", Mr Ruston wrote "refer attached". No attachment was referred to the Court with the Notice although such an attachment may well have been with the original file in the Commission. On 5 September the Court's Listing Co-ordinator wrote to the Applicant's solicitors and to Worldmaster Pty Ltd advising that the matter had been set down for Directions Hearing on 17 September. The short title of the action was still stated to be Tollis v Worldmaster Pty Ltd. On 27 September solicitors acting for Worldmaster Pty Ltd filed another Notice of Employer's Appearance (Form R29). This Notice was dated 27 August (i.e. it was dated a month before receipt in the Court). This Notice stated that the employee had given the name of the employer correctly by placing an 'X' in the "yes box" but also an 'X' appeared in the "no box" suggesting that the employee had not given the correct name of the employer. Furthermore, paragraph 8 of the Notice suggested that Worldmaster Pty Ltd was not the true employer but no details as to who was "the true employer" were provided. On 16 September the solicitors for the Applicant filed a request for consent orders. The request referred to Order 35 Rule 10, was dated 16 September and signed by solicitors for the Applicant and solicitors for the Respondent, referred to the matter as Suzanne Tollis, Applicant and Worldmaster Pty Ltd, Respondent and requested that: (i) the case be set down for hearing for one day