Olsen v Webb Bros Pty Ltd [1998] IRCA 12

FOR GENERAL DISTRIBUTION

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

TERMINATION OF EMPLOYMENT - alleged unlawful termination of employment - Respondent embarked on deliberate strategy to obtain services of applicant - applicant dismissed in her absence from office while showing prospective purchasers around site - VALID REASON - not satisfied valid reason for termination of employment established after finding made of employment relationship established between applicant and respondent - EMPLOYMENT CONTRACT - SERVICES CONTRACT - Partner of applicant negotiated salary of himself and applicant with Director of Respondent - Agreement to pay salary to Company owned by applicant and partner - indicia of employment examined - weekly invoices for sales consultancy fees - office expenses paid by employer - LEGAL REPRESENTATION - applicant appeared on own behalf assisted by partner in presenting case - SALES CONSULTANCY - sham agreement for sales consultancy to avoid employment relationship and take advantage of taxation situation of private company - applicant advised after negotiations about salary payment complete - to be referred for further investigation by State and Federal Authorities - WAGES - assessed to include weekly amount for value of company motor vehicle - whole of increased salary attributed to applicant as respondent likely to try to retain her services - CONDUCT AND PERFORMANCE - OPPORTUNITY TO RESPOND - No opportunity to respond to allegation of poor sales performance - TERMINATION PAY - Award for failure to give required Period of Notice - DAMAGES - Compensation assessed by including amount for distress occasioned by termination and period of 13 weeks without employment - PRACTICE AND PROCEDURE - EVIDENCE - Evidence Act - no request made for protection provided by section 128 before applicant answered questions regarding her personal taxation returns and those of the Private Company - SUMMARY DISMISSAL - Applicant terminated without reason or explanation - message passed through partner of advice received from Director of Respondent while away from office - REINSTATEMENT - Impractical to reinstate applicant - certain level of sales to be expected from applicant - applicant failed to produce evidence that would achieve sales criteria in future - applicant in current employment and still bears a sense of injustice - DIRECTION OF COURT - Reasons for judgment, exhibits and transcripts of evidence referred to the Attorney General of the Commonwealth to facilitate investigation by appropriate state and federal taxing authorities. Workplace Relations Act (Cth) 1996 (formerly known as Industrial Relations Act 1988) ss 170DB, 170DC, 170DE(1) Evidence Act 9Cth) 1995 ss 60, 128 Superannuation Guarantee (Administration Act) 1992 (Cth) Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Zuijs v Wirth Bros Pty Ltd (1955)93 CLR 561 Federal Commissioner of Taxation v Barrett (1973)129 CLR 395 Humberston v Northern Timber Mills (1949) 79 CLR 389 Queensland Stations Pty Ltd v Federal Commissioner of Taxation v Barrett (1945)70 CLR 539 Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 Vabu Pty Ltd v Federal Commissioner of Taxation (1996) 33 ATR 537 Ready Mixed Concrete (South East) Ltd v Minister of Pensions & National Insurance (1968) 2 QB 497 at 526 Bertram Daniel v Real Estate Network Pty Ltd (1996) 71 IR 437 Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449 at 454 Petera Pty Ltd v EAJ Pty Ltd (1985) 7 FCR 375 Simon Eric Imberger v Video Classique Pty Ltd (unreported IRCA decision No. 547/96 Millane JR Selvachandran v Peteron Plastics Pty Ltd (1996) 62 IR 371 Gibson v Bostik Pty Ltd (1995) 60 IR 1 Perrin v Des Taylor Pty Ltd (1994) 58 IR 254 at 256-7 Liddell v Lembke (1994) IRCR 466 at page 487 Burazin v The Blacktown City Guardian Pty Ltd (1995)(unreported IRCA (Full Court) decision No.606/96 dated 13 December 1996) May v Lilyvale Hotel Pty Ltd (1995) 68 IR 112