Industrial Relations Commission of New South Wales CITATION : Styles v Port City Bowl [2001] NSWIRComm 210 PARTIES : Vicki Lorraine Styles Port City Bowl FILE NUMBER: IRC 4070 of 2001 CORAM: Harrison DP CATCHWORDS : Application for relief from unfair dismissal - application filed out of time - reason for delay health of applicant's spouse - application admitted out of time. Held - termination resulting from business restruccture for genuine commercial purposes - respondent employed less than 15 employees - application for relief refused. LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 08/21/2001 DATE OF JUDGMENT: 09/10/2001 APPLICANT Mrs V Styles LEGAL REPRESENTATIVES: RESPONDENT Ms E Cooper Solicitor of Priest McCarron Solicitors JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Monday, 10 September 2001 Matter No IRC 4070 of 2001 VICKI LORRAINE STYLES AND PORT CITY BOwl Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2001] NSWIRComm 210 1 This matter was subject to arbitration proceedings on 21 August 2001 consequent upon earlier proceedings which determined that the matter could not be settled by agreement between the parties and which gave rise to directions for the filing and serving of statements of evidence. 2 On hearing Mrs Styles, the applicant, represented herself. Ms E Cooper, solicitor of Priest McCarron Solicitors, appeared on behalf of Port City Bowl, the respondent, with Mr B Avery. 3 Mrs Styles relied upon the information contained in her application (ex 1) and was not required for cross examination thereto. 4 Ms Cooper brought evidence from Mr Avery, Managing Director of the respondent. THE EVIDENCE 5 The evidence discloses that the respondent acquired the business of Port City Bowl on 22 December 2000, the previous employer paying all outstanding leave entitlements up to 18 December 2000 with an adjustment at settlement of the sale of the business for all long service entitlements to employees. The respondent remains liable for payment of long service leave as it falls due. 6 At the time of acquisition the applicant had been employed for some 17 years as a cleaner, working 14 hours per week. 7 During the course of the early months of 2001 Mr Avery undertook restructure of the business operations resulting in the retrenchment of the applicant and another cleaner. Each employee retrenched was given one week's notice as required by the Miscellaneous Workers General Services (State) Award 320 IG 1078 ('the award'). The applicant was paid all relevant entitlements, including long service leave, 8 Mr Avery described the restructure in pts 7to 11 of his affidavit in the following terms: 7. I changed the closing time of the business from 11 pm to 10 pm. 8. I asked the technicians to undertake polishing the floors around the players area. They refused but agreed that the floors around the players areas only needed to be polished every other day or three days a week. This takes about 45 minutes to one hour. 8. The counter staff (or control staff) now undertake duties (I) to (vii) above in the "downtime" when the Centre is quiet and vacuum at night towards closing time. I also do some of the cleaning work. 9. After restructuring the existing employees duties, I only needed someone to polish the floors in the players areas. As this has to be done every other day and takes about one hour, I did not offer the work to the applicant or the other cleaner as it is less than the minimum number of two hours per start I can ask her to work for. 10. I asked the existing Contract cleaner, Window Washers Worldwide to do the work. Window Washers Worldwide (WWW) has cleaned the windows at the business for the last nine years. I asked WWW to do the toilets as well on the days they polished the floors. WWW has its own public liability and personal injury insurance. WWW contracts with other organisations and I do not control or restrict the organisations WWW contracts with. WWW has its own ABN and GST is payable on the invoice. WWW invoices the business once a month. Annexed hereto and marked with the letter "A" are their invoices for May, June and July 2001. 11. By making these structural changes to the business I estimate that there will be a cost saving of $13,489.32 per annum without any real reduction in the standard of cleanliness of the premises. 9 Mr Avery deposed that restructure of the business was essential to provide viable and sustained employment for the remaining staff. 10 The applicant's employment was concluded on 18 March 2001. The applicant deposed in her application that she discovered on or around 15 May 2001 that a casual cleaner had been engaged to do the work she had been undertaking which resulted in the present application as she formed the view that after 17 years service, termination of her employment and replacement by another was unfair. 11 The applicant seeks compensation in the form of loss of wages at a rate of $170.80 per week from 18 March 2001 until an agreement can be reached. 12 Ms Cooper challenged the application as being out of time, submitting that it was filed significantly beyond the 21 days required pursuant to s85(1) of the Industrial Relations Act 1996 ('the Act'). 13 The applicant submitted that shortly after the termination of her employment her husband had suffered a series of heart attacks which had taken her to Sydney to attend to him during the course of medical treatment and consequently it was not until on or about 15 May 2001 that she discovered what she put were grounds for an application. 14 Ms Cooper acknowledged that difficult circumstances, putting that the application remained over 21 days from 15 May 2001. CONSIDERATION 15 In the circumstances facing the applicant I regard the reason for and length of delay to be adequately explained and find no issue of hardship to the respondent to preclude an exercise of discretion to admit the application out of time. 16 The application is admitted out of time pursuant to s85(3) of the Act. 17 The evidence of Mr Avery supports a finding that the termination of the applicant's employment was lawful, executed pursuant to the relevant industrial award as part of a business restructure for legitimate commercial purposes. 18 There is no evidence to support the assertion by the applicant that another employee was engaged to carry out the duties formerly undertaken by her. 19 The evidence of Mr Avery supports a conclusion that these duties were put to contract as part of a larger package of work. 20 On the circumstances of this matter I cannot find that the termination of the applicant's employment was harsh, unreasonable and unjust within the meaning of that term found in Part 2 Chapter 6 of the Act. 21 The application for relief is refused. 22 Matter No IRC 4070 of 2001 is so concluded. oo0oo 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.