Russell and Another v Traders Workshop Pty Ltd [2002] NSWIRComm 122

Industrial Relations Commission of New South Wales

CITATION : Russell and Another v Traders Workshop Pty Ltd [2002] NSWIRComm 122 APPLICANTS Mr Nigel Russell PARTIES : Mr Mark Warwick RESPONDENT Traders Workshop Pty Ltd FILE NUMBER: IRC 5834 IRC 5986 of 2001 CORAM: Harrison DP CATCHWORDS : Unfair dismissal - summary dismissal as device to avoid redundancy and termination payments - Held - termination harsh, unreasonable and unjust - compensation awarded LEGISLATION CITED : Industrial Relations Act 1996 Australian Corporations Act 1990 HEARING DATES: 05/21/2002 DATE OF JUDGMENT: 06/03/2002

APPLICANTS Ms Denise Gardner LEGAL REPRESENTATIVES: RESPONDENT No Appearance

JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Monday, 3 June 2002 Matter No IRC 5834 of 2001 NIGEL RUSSELL AND TRADERS WORKSHOP PTY LTD Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 Matter No IRC 5986 of 2001 MARK WARWICK AND TRADERS WORKSHOP PTY LTD Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2002] NSWIRComm 122 1 These matters were first subject to proceedings for the purpose Conciliation and Directions in Port Macquarie on 18 September 2001 at which time it was established that the applicants wished the matters to be heard together, accordingly the matters were joined. 2 It was further established that the respondent employer had entered a period of administration pursuant to the Australian Corporations Act ('the Corporations Act'). Advice was received from Knights Insolvency Administration ('Knights') invoking S 440D, Stay of proceedings of the Corporations Act which states: (1) During the administration of a company, a proceeding in a court against the company or in relation to any of its property cannot be begun or proceeded with, except: (a) with the administrator's written consent; or (b) with the leave of the Court and in accordance with such terms (if any) as the Court imposes.