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. 8 Exhibit 3 is an email communication from Mr David Jackson-Grose, acting on behalf of BarterCorp, to the applicant, dated 6 December 2001, advising, amongst other things: "On Tuesday, I withdrew my financial support for Barterbanc (Australia) Pty Ltd and, thus, it went into liquidation. No, it does not effect BC". 9 The applicant's evidence is that she had experienced delays in payment of wages and stressful working conditions, resulting in deterioration of her health, necessitating some time off work. 10 The applicant's evidence is that on 17 December 2001 she was informed by facsimile communication from Mr Jackson-Grose, as General Manager of BarterCorp, that her employment was concluded. This advice (exhibit 4) states: This letter is also being hand-delivered to you by my representatives. I am writing to inform you of the following : (1) The Central Coast office of Bartercorp Management Pty Ltd is closed until further notice. (2) Consequently, your position has been made redundant forthwith. (3) Please hand over the keys to the Gosford and Sydney offices as well as anything else that belongs to Bartercorp or myself including any agenda that you have been using for your trade exchange work (4) For security reasons, please collect your personal belongings and remove them from the premises as you leave. (5) I would like to ensure that you are paid up-to-date today . So you are welcome to contact me towards the end of the morning with your input. My suggestion is that you meet with my representatives over coffee to work this out amicably. (6) As you know, I am considering appointing a local representative to run the territory. If you wish, I am happy to ensure that you are kept fully informed in case you wish to continue working for him. I wish you all the very best wishes for the future. 11 The applicant's evidence is that she had no prior knowledge, warning or advice of the impending closure of the Central Coast office, or the termination of her employment. 12 The written submissions put by Mr Jackson Grose, within the affidavit conveyed on the date of hearing, 27 June 2002, contend that: (3) Mrs Kirwin was employed by Barterbanc (Australia) Pty Ltd until its liquidation on the 4th December 2002. (4) Mrs Kirwin's last day in the Charmhaven office was on the 30th November 2002. (5) Mrs Kirwin never commenced employment for BarterCorp Management Pty Ltd. (6) If Mrs Kirwin was deemed to have been employed by Bartercorp Management Pty Ltd from the 5th December 2001 to the 17th December 2001, she was not dismissed. On the contrary, she was retrenched as a consequence of the fact that the office was closed. (7) Since the closure of the office, no other office has been opened in NSW nor has anyone else been employed. Nor has any subcontractor been employed for that matter. 13 In his affidavit Mr Jackson-Grose deposes that the applicant remains an employee of BarterBanc, describing the detail of her duties at points 8, 9, 11 & 15: (8) On the 18th May 2001, the database of the trade exchange managed by BarterBanc (Australia) Pty Ltd and known as "BarterBanc" became part of the database of the trade exchange managed by BarterCorp Management Pty Ltd and known as "BarterCorp". Nevertheless, the staff of BarterBanc (Australia) Pty Ltd continued to be employed by BarterBanc (Australia) Pty Ltd. (9) Mrs Kirwin's duties whilst working for BarterBanc (Australia) Pty Ltd were to assist trade exchange Members. She also assisted with the transition of their accounts from BarterBanc to BarterCorp and, whilst employed by BarterBanc (Australia) Pty Ltd also helped to promote the Bartercorp trade exchange. (11) When BarterBanc (Australia) Pty Ltd went into liquidation, I assumed that Mrs Kirwin would continue to work from the Charmhaven office but, from then on, for BarterCorp Management Pty Ltd. However, her absence from work precluded any substantive discussions about this. Nevertheless, by the time I closed the office on the 17th December 2001, I was incorrectly working on the assumption that Mrs Kirwin now worked for BarterCorp Management Pty Ltd. In closing the office, I thought I was obliged to retrench her. On the contrary, I could not end her employment considering the fact that such employment had never commenced in the first place. (I refer to my letter dated 17 December 2001 included in Mrs Kirwin's complaint in which I informed her of the closure of the office and, hence, retrenched her. (15) On the 17th December 2001, I closed the Charmhaven office. If I had been correct in thinking that Mrs Kirwin had commenced working for BarterCorp Management Pty Ltd, my actions would have constituted retrenchment. Even if she had been employed by BarterCorp Management Pty Ltd, she was obviously not dismissed nor were the actions of BarterCorp Management Pty Ltd "harsh, unreasonable and unjust". 14 Mr Jackson-Grose makes written allegations in respect to conduct by the applicant, which he puts were discovered post termination of her employment. 15 The applicant denies the allegations of misconduct. CONSIDERATION 16 Mr Jackson-Grose sought delay in the proceedings, pleading an inability to attend to the matter due to chronic asthma, which he put he had suffered from since childhood. This is contradicted by his action of effecting termination by agents, producing voluminous written submissions, and the filing of a sworn affidavit. 17 Mr Jackson-Grose's final plea was that he would not have been able to attend in any event as he was obliged to appear on behalf of his wife in Coffs Harbour Court House on the same day. Mr Jackson-Grose apparently did not attend the Coffs Harbour proceedings, however, his affidavit was conveyed by facsimile via Coffs Harbour Court House. 18 The pleadings for consideration on the basis of health restrictions are not made out; and are further in contradiction to his treatment of the applicant, whom he dismissed from employment for reasons which he alleges, post termination, included lack of performance, whilst she was on sick leave supported by a certificate from an appropriately qualified medical practitioner. 19 The allegations of misconduct are not made out and are not relevant to the instant proceedings, which turn entirely upon the circumstances of termination of the applicant's employment by Mr Jackson-Grose on 17 December 2001. 20 The evidence establishes that there has been a transmission of business from BarterBanc Australia Pty Ltd to BarterCorp Management Pty Ltd, and in that transmission of business the contract of employment and rights and obligations thereto have been so transmitted. Mr Jackson-Grose gave advice of termination to the applicant from her employment with BarterCorp Management Pty Ltd, from which he can not now resile. 21 The employment agreement (ex 1) provides inter alia at cl8 that: The Company shall be entitled to terminate the services of the Employee at any time on giving thirty (30) days previous written notice to the Employee if at any time: (a) The Employee does not perform or breaches his obligations pursuant to the provisions of this Agreement within seven (7) days after written notice from the Company directing or requiring him to perform such obligations or to rectify any such breach. 22 There was no notice provided, either as to conduct or redundancy. 23 As held by the Full Bench of this Commission in Outboard World Pty Limited T/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 182, a redundancy may, having regard to the circumstances of that redundancy and consequent retrenchment, constitute a harsh, unreasonable and unjust dismissal, invoking the discretion of the Commission to remedy. 24 The applicant seeks recovery of unpaid wages to the amount of $10,664.49, not prosecuted in these proceedings; and compensation pursuant to s89(5) of the Industrial Relations Act 1996 ('the Act'). 25 I find the termination of the applicant's employment to be harsh, unreasonable and unjust. I find reinstatement or re-employment to be impractical, and determine that compensation of twelve weeks' wages at the rate of $754.00 per week is appropriate in the circumstances. The appropriate order issues herewith. 26 Matter No IRC 397 of 2002 is so concluded. oo0oo 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 ORDER [2002] NSWIRComm 149 Pursuant to s89(5) of the Industrial Relations Act 1996 BarterCorp Management Pty Ltd is ordered to pay the amount of $9,048.00 (nine thousand and forty eight dollars) to Ms Christina Maree Kirwin within 21 days of the date of this decision. I so order. The Hon. R W Harrison Deputy President - 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. 8 Exhibit 3 is an email communication from Mr David Jackson-Grose, acting on behalf of BarterCorp, to the applicant, dated 6 December 2001, advising, amongst other things: "On Tuesday, I withdrew my financial support for Barterbanc (Australia) Pty Ltd and, thus, it went into liquidation. No, it does not effect BC". 9 The applicant's evidence is that she had experienced delays in payment of wages and stressful working conditions, resulting in deterioration of her health, necessitating some time off work. 10 The applicant's evidence is that on 17 December 2001 she was informed by facsimile communication from Mr Jackson-Grose, as General Manager of BarterCorp, that her employment was concluded. This advice (exhibit 4) states: This letter is also being hand-delivered to you by my representatives. I am writing to inform you of the following : (1) The Central Coast office of Bartercorp Management Pty Ltd is closed until further notice. (2) Consequently, your position has been made redundant forthwith. (3) Please hand over the keys to the Gosford and Sydney offices as well as anything else that belongs to Bartercorp or myself including any agenda that you have been using for your trade exchange work (4) For security reasons, please collect your personal belongings and remove them from the premises as you leave. (5) I would like to ensure that you are paid up-to-date today . So you are welcome to contact me towards the end of the morning with your input. My suggestion is that you meet with my representatives over coffee to work this out amicably. (6) As you know, I am considering appointing a local representative to run the territory. If you wish, I am happy to ensure that you are kept fully informed in case you wish to continue working for him. I wish you all the very best wishes for the future. 11 The applicant's evidence is that she had no prior knowledge, warning or advice of the impending closure of the Central Coast office, or the termination of her employment. 12 The written submissions put by Mr Jackson Grose, within the affidavit conveyed on the date of hearing, 27 June 2002, contend that: (3) Mrs Kirwin was employed by Barterbanc (Australia) Pty Ltd until its liquidation on the 4th December 2002. (4) Mrs Kirwin's last day in the Charmhaven office was on the 30th November 2002. (5) Mrs Kirwin never commenced employment for BarterCorp Management Pty Ltd. (6) If Mrs Kirwin was deemed to have been employed by Bartercorp Management Pty Ltd from the 5th December 2001 to the 17th December 2001, she was not dismissed. On the contrary, she was retrenched as a consequence of the fact that the office was closed. (7) Since the closure of the office, no other office has been opened in NSW nor has anyone else been employed. Nor has any subcontractor been employed for that matter. 13 In his affidavit Mr Jackson-Grose deposes that the applicant remains an employee of BarterBanc, describing the detail of her duties at points 8, 9, 11 & 15: (8) On the 18th May 2001, the database of the trade exchange managed by BarterBanc (Australia) Pty Ltd and known as "BarterBanc" became part of the database of the trade exchange managed by BarterCorp Management Pty Ltd and known as "BarterCorp". Nevertheless, the staff of BarterBanc (Australia) Pty Ltd continued to be employed by BarterBanc (Australia) Pty Ltd. (9) Mrs Kirwin's duties whilst working for BarterBanc (Australia) Pty Ltd were to assist trade exchange Members. She also assisted with the transition of their accounts from BarterBanc to BarterCorp and, whilst employed by BarterBanc (Australia) Pty Ltd also helped to promote the Bartercorp trade exchange. (11) When BarterBanc (Australia) Pty Ltd went into liquidation, I assumed that Mrs Kirwin would continue to work from the Charmhaven office but, from then on, for BarterCorp Management Pty Ltd. However, her absence from work precluded any substantive discussions about this. Nevertheless, by the time I closed the office on the 17th December 2001, I was incorrectly working on the assumption that Mrs Kirwin now worked for BarterCorp Management Pty Ltd. In closing the office, I thought I was obliged to retrench her. On the contrary, I could not end her employment considering the fact that such employment had never commenced in the first place. (I refer to my letter dated 17 December 2001 included in Mrs Kirwin's complaint in which I informed her of the closure of the office and, hence, retrenched her. (15) On the 17th December 2001, I closed the Charmhaven office. If I had been correct in thinking that Mrs Kirwin had commenced working for BarterCorp Management Pty Ltd, my actions would have constituted retrenchment. Even if she had been employed by BarterCorp Management Pty Ltd, she was obviously not dismissed nor were the actions of BarterCorp Management Pty Ltd "harsh, unreasonable and unjust". 14 Mr Jackson-Grose makes written allegations in respect to conduct by the applicant, which he puts were discovered post termination of her employment. 15 The applicant denies the allegations of misconduct. CONSIDERATION 16 Mr Jackson-Grose sought delay in the proceedings, pleading an inability to attend to the matter due to chronic asthma, which he put he had suffered from since childhood. This is contradicted by his action of effecting termination by agents, producing voluminous written submissions, and the filing of a sworn affidavit. 17 Mr Jackson-Grose's final plea was that he would not have been able to attend in any event as he was obliged to appear on behalf of his wife in Coffs Harbour Court House on the same day. Mr Jackson-Grose apparently did not attend the Coffs Harbour proceedings, however, his affidavit was conveyed by facsimile via Coffs Harbour Court House. 18 The pleadings for consideration on the basis of health restrictions are not made out; and are further in contradiction to his treatment of the applicant, whom he dismissed from employment for reasons which he alleges, post termination, included lack of performance, whilst she was on sick leave supported by a certificate from an appropriately qualified medical practitioner. 19 The allegations of misconduct are not made out and are not relevant to the instant proceedings, which turn entirely upon the circumstances of termination of the applicant's employment by Mr Jackson-Grose on 17 December 2001. 20 The evidence establishes that there has been a transmission of business from BarterBanc Australia Pty Ltd to BarterCorp Management Pty Ltd, and in that transmission of business the contract of employment and rights and obligations thereto have been so transmitted. Mr Jackson-Grose gave advice of termination to the applicant from her employment with BarterCorp Management Pty Ltd, from which he can not now resile. 21 The employment agreement (ex 1) provides inter alia at cl8 that: The Company shall be entitled to terminate the services of the Employee at any time on giving thirty (30) days previous written notice to the Employee if at any time: (a) The Employee does not perform or breaches his obligations pursuant to the provisions of this Agreement within seven (7) days after written notice from the Company directing or requiring him to perform such obligations or to rectify any such breach. 22 There was no notice provided, either as to conduct or redundancy. 23 As held by the Full Bench of this Commission in Outboard World Pty Limited T/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 182, a redundancy may, having regard to the circumstances of that redundancy and consequent retrenchment, constitute a harsh, unreasonable and unjust dismissal, invoking the discretion of the Commission to remedy. 24 The applicant seeks recovery of unpaid wages to the amount of $10,664.49, not prosecuted in these proceedings; and compensation pursuant to s89(5) of the Industrial Relations Act 1996 ('the Act'). 25 I find the termination of the applicant's employment to be harsh, unreasonable and unjust. I find reinstatement or re-employment to be impractical, and determine that compensation of twelve weeks' wages at the rate of $754.00 per week is appropriate in the circumstances. The appropriate order issues herewith. 26 Matter No IRC 397 of 2002 is so concluded. oo0oo 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 ORDER [2002] NSWIRComm 149 Pursuant to s89(5) of the Industrial Relations Act 1996 BarterCorp Management Pty Ltd is ordered to pay the amount of $9,048.00 (nine thousand and forty eight dollars) to Ms Christina Maree Kirwin within 21 days of the date of this decision. I so order. The Hon. R W Harrison Deputy President DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.