Allen & New Horizons Enterprises Ltd [2005] NSWIRComm 1217

Industrial Relations Commission of New South Wales

CITATION: Allen & New Horizons Enterprises Ltd [2005] NSWIRComm 1217

APPLICANT Mr Trevor Paul Allen PARTIES: RESPONDENT New Horizons Enterprises Limited

FILE NUMBER(S): 823 of 2005

CORAM: Stanton C

CATCHWORDS: Amended order - Amended order to [2005] NSWIRComm 1179

LEGISLATION CITED: Industrial Relations Act 1996

DATE OF JUDGMENT: 12/07/2005

APPLICANT Mr J Wormington of Counsel

LEGAL REPRESENTATIVES: RESPONDENT Mr Hellyer, Solicitor Workplace Relations Consulting Pty Ltd

DECISION:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: STANTON C

7 December 2005

Matter No IRC 823 of 2005

Trevor Paul Allen and New Horizons Enterprises Limited

Application by Trevor Paul Allen re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. STATEMENT AND AMENDED ORDER [2005] NSWIRComm 1217

1 The decision in this matter was handed down on 7 November 2005 and an Order was made that, pursuant to section 89(5) of the Industrial Relations Act 1996, New Horizons Enterprises Limited shall pay to the applicant an amount of $18460.00 (eighteen thousand four hundred and sixty dollars) within 21 days. 2 The amount of compensation was based on the applicant being in receipt of wages averaging $923.00 per week immediately prior to his dismissal. 3 On 10 November 2005, the respondent's agent, Mr P Amos, of Workplace Relations Consulting, wrote to the Industrial Registrar and advised that the respondent had calculated the applicant's average weekly wage rate over the six months immediately preceding the dismissal to be $728.46. 4 On 14 November 2005, the Commission arranged for the following reply to be forwarded to Mr Amos by the Registry: " At page 2 of the transcript, Mr Wormington sought leave to amend the Application by deleting the amount "$1200.00 - $1300.00 per fortnight" and inserting the amount "$923.00 per week" in lieu thereof, based on information contained in the applicant's group certificate. Mr Hellyer replied, "subject to looking at the group certificate, Commissioner, we may or may not accept that figure." It is apparent from the transcript that Mr Kinkead was present with Mr Hellyer at the time of the above exchange because Mr Wormington subsequently raised an objection to Mr Kinkead sitting through the proceedings on the grounds that he was also a witness in them. Mr Wormington subsequently stated that he had a copy of the applicant's group certificate "to show my friend". Accordingly, it is against the above backdrop that the Commission has used the rate of $923.00 per week in computing compensation. No advice to the contrary has been received. " A copy of pages 2 and 3 of the transcript of proceedings is attached for information. The Commissioner has directed that you confer with Mr Wormington with the view of reaching agreement as to whether the Order should be amended, and if so, the agreed terms should be filed no later than Thursday 5.00pm, 17 November 2005. 5 In correspondence dated 24 November 2005, Mr Wormington, Counsel for the applicant advised the Registry that he had discussed the matter with Mr Amos and both the applicant and respondent had agreed that the proper rate was $728.36 per week. Mr Wormington also advised that the applicant's group certificate relied upon during the proceedings included unused annual leave. 6 The amended Order agreed by the parties is attached to this Statement. ooOoo