Gillett v Andrew Miedecke Motors Pty Ltd [2006] NSWIRComm 1100

Industrial Relations Commission of New South Wales

CITATION: Gillett v Andrew Miedecke Motors Pty Ltd [2006] NSWIRComm 1100

APPLICANT William John Gillett PARTIES: RESPONDENT Andrew Miedecke Motors Pty Ltd

FILE NUMBER(S): 233 of 2006

CORAM: McLeay C

CATCHWORDS: Unfair dismissal - salesperson - application accepted out of time - respondent conceded dismissal - issues in dispute - one month's notice - timing not unfair - application dismissed

LEGISLATION CITED: Industrial Relations Act 1996

HEARING DATES: 16/06/06, 21/07/06

DATE OF JUDGMENT: 08/15/2006

APPLICANT Mr T Fox, solicitor Fox & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr A Miedecke Managing Director

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: MCLEAY C

15 August 2006

Matter No IRC 233 of 2006

William John Gillett and Andrew Miedecke Motors Pty Ltd

Application by William John Gillett re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2006] NSWIRComm 1100

1 This is an application by William John Gillett ("the applicant") re unfair dismissal against Andrew Miedecke Motors Pty Ltd ("the respondent") pursuant to section 84 of the Industrial Relations Act 1996. The application shows that Mr Gillett was dismissed from the position of salesperson on 24 December 2005, having been employed by the respondent since January 2005. 2 The application was filed on 23 January, beyond the 21 days allowed pursuant to s 85(1) of the Act. The delay was due to the Christmas holiday period, the applicant's solicitor's office being closed for the holiday period, and Mr Gillett's ill health. I accept that, in the circumstances of a short delay causing little if any hardship to the respondent, together with the reasons given by the applicant, there is sufficient reason for me to accept the application out of time, pursuant to s 85(3). 3 The applicant had previously worked for the respondent from 2000 until November 2004 and had been a Manager. On commencing employment in 2005, Mr Gillett was a salesperson in the respondent's wholesale yard, reporting to a Manager. However, Mr Gillett said he was in effect managing the wholesale yard. He received salary, commission and a car allowance. 4 The respondent conceded that there was an effective dismissal of the applicant although at the time, on 23 December, he had asked Mr Gillett to retire. The evidence given by Mr Miedecke, the Managing Director of the respondent business, was that he would have dismissed Mr Gillett if he had not agreed to leave. One month's notice period was negotiated, Mr Miedecke said, because he wanted Mr Gillett to be allowed to leave with dignity. 5 There had been an agreement that Mr Gillett could sell two vehicles owned by him through the respondent, provided that the respondent received $1500 out of the proceeds of each sale. Mr Miedecke said this amount was to cover the expected costs of the three year guarantee offered on all used cars sold by the respondent. Costs incurred for registration, a service charge and a repair under warranty on the vehicle substantially reduced the net amount received by the respondent as a result of the sale, which occurred in November 2005.