Thomson and VoIP Pty Ltd [2005] NSWIRComm 17

Industrial Relations Commission of New South Wales

CITATION: Thomson and VoIP Pty Ltd [2005] NSWIRComm 17

APPLICANT Matthew James Leonard Thomson PARTIES: RESPONDENT VoIP Pty Ltd

FILE NUMBER(S): 4499 of 2004

CORAM: Sams DP

Jurisdiction - termination of employment - unfair dismissal application - application out of time - reason for, and length of delay - hardship for applicant and employer - sufficient reason - exercise of discretion - option to resign or be dismissed - legal advice sought - exemption from unfair dismissal provisions - whether applicant was covered by an industrial instrument - nature of work performed - whether applicant covered by employment contract and award free - respondent's business records - applicant's evidence - applicant's annual remuneration - whether remuneration exceeded threshold - salary, commission, car allowance, superannuation and non cash benefits - package of benefits - vehicle business usage - requirement of a vehicle to perform work - leased vehicle - leasing and running costs - contract of employment - tax returns - business records - applicant's evidence - whether superannuation part of remuneration - no Full Bench authority - principles considered. CATCHWORDS: Held, exercise of discretion unnecessary - no decision taken to terminate employment on the date alleged - unfair dismissal application filed within 21 days - respondent's evidence incomplete and unclear - no reliable evidence to rebut applicant's claim - work relevantly covered by an industrial instrument - employer cannot contract out of award - no evidence of change in duties - applicant's evidence preferred - respondent's evidentiary case weak - applicant's work covered by the terms of an industrial instrument - applicant not prevented from bringing an unfair dismissal claim - vehicle required for the job - actual costs of running vehicle greater than car allowance - 90% business usage accepted - business usage applied to car allowance - respondent's evidence incomplete - applicant's evidence accepted - no commission - superannuation part of remuneration - reasons developed in addition to comments of Full Bench - applicant's total remuneration below threshold -applicant's unfair dismissal claim competently before the Commission - jurisdictional challenge not sustained - further proceedings listed - parties directed to confer as to settlement.