Kirwin v BarterCorp Management Pty Ltd [2002] NSWIRComm 149

Industrial Relations Commission of New South Wales

CITATION : Kirwin v BarterCorp Management Pty Ltd [2002] NSWIRComm 149 APPLICANT PARTIES : Christina Maree Kirwin RESPONDENT BarterCorp Management Pty Ltd FILE NUMBER: IRC 397 of 2002 CORAM: Harrison DP CATCHWORDS : Application pursuant to s84 - alleged redundancy for commercial purpose - lack of notice - lack of consultation - failure by respondent to comply with contract of employment. Held - termination harsh unreasonable and unjust - reinstatement or reemployment impractical - compensation awarded LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : Outboard World Pty Limited T/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 HEARING DATES: 06/27/2002 DATE OF JUDGMENT: 07/04/2002

APPLICANT Mr D Brooks, solicitor of Catalyst Partners LEGAL REPRESENTATIVES: RESPONDENT No appearance

JUDGMENT: - 8 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Thursday 4 July 2002 Matter No IRC 397 of 2002

CHRISTINA MAREE KIRWIN AND BARTERCORP MANAGEMENT PTY LTD

Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2002] NSWIRComm 149 1 This matter was subject to proceedings for the purpose of conciliation and directions in March and May 2002. A Statement issued on 22 May 2002, consequent upon failure by the respondent to attend any proceedings, contained directions listing the matter for hearing on 27 June 2002. 2 On hearing Mr D Brooks, solicitor of Catalyst Partners, appeared on behalf of Ms Kirwin, the applicant. There was no appearance for the respondent. 3 The respondent provided a sworn affidavit by facsimile of eight pages with annexures A through H, over covering correspondence which acknowledged that the matter would be heard ex parte. 4 Mr Brooks brought evidence from the applicant. 5 The applicant's evidence is that she commenced employment with BarterBanc Australia Pty Ltd on 1 February 2002 in the capacity of Office Manager pursuant to the Clerical and Administrative Employees (State) Award (1997) 296 IG 619 ('the award'). The terms of employment were further regulated by an employment agreement entered into between the parties (exhibit 1). This agreement describes that the applicant was employed in the capacity of "Trade Facilitator, NSW or such other position held by The Employee from time to time" and specifies payment, incentive bonuses and other conditions of engagement. 6 Exhibit 2 is a newsletter, distributed by BarterCorp, dated 1 June 2001 and addressed to "Dear Trader", advising that BarterCorp had held its inaugural members' function on 24 May 2001, "beginning with the old Barterbanc database…" upon which it would build enhanced benefits for members. 7 The applicant continued to carry out her duties for BarterCorp Management Pty Ltd ('BarterCorp'), the named respondent in the present proceedings.