Industrial Relations Commission of New South Wales CITATION: Barrell v. Geekie (No.2) [2006] NSWIRComm 1147 APPLICANT Anna Barrell PARTIES: RESPONDENT Andrew Geekie and Janet Geekie, trading as Janet Manly Clinical Skin Care FILE NUMBER(S): IRC 1116 of 2006 CORAM: Connor C CATCHWORDS: termination of employment - closure of business - bankrupt employer - ex parte proceedings - difficulty in recovering entitlements or orders for monetary compensation - identity of employer LEGISLATION CITED: Industrial Relations Act 1996 Busways v. Johnson (1994) 55 IR 255 CASES CITED: Grimshaw v. Dunbar (1953) 1 All ER 350 Healy v. Johnston - unreported HEARING DATES: 05/10/2006 DATE OF JUDGMENT: 10/05/2006 EXTEMPORE JUDGMENT DATE : 10/05/2006 APPLICANT no appearance LEGAL REPRESENTATIVES: RESPONDENT no appearance DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Thursday, 5 October, 2006 Matter No IRC 1116 of 2006 Anna Barrell and Andrew and Janet Geekie, trading as Janet Manly Clinical Skin Care Application under S.84 of the Industrial Relations Act, 1996 SUPPLEMENTARY DECISION [2006] NSWIRComm 1147 1 On Wednesday, 26 July, 2006 I handed down my decision on an application by Mrs Anna Barrell under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act. Mrs Barrell had been employed by Mr Andrew Geekie and his wife, Janet Geekie, in a skincare clinic for nine years until the business closed down. The clinic apparently traded under a range of titles - Janet Beauty Salon, Janet Manley Aesthetic Centre, Janet Manley Looking Good, Janet Manley Clinical Skin Care, Janet Skincare and Beauty and Janet Manley Clinical Skincare. Mrs Barrell's services were terminated on Saturday, 11 February, 2006. 2 In her Part 6 application Mrs Barrell had claimed that the termination of her services was unfair and she sought monetary compensation over it. Her Part 6 application was allocated initially to Tabbaa C for conciliation but there was no representative in the proceedings representing the skincare clinic. Consequently, Tabbaa C concluded that conciliation would be unsuccessful and, in conformity with Practice Direction No.17, she programmed the matter for arbitration. The file was allocated to me to arbitrate Mrs Barrell's claim on Wednesday, 26 July, 2006. 3 In the hearing on Wednesday, 26 July, 2006 there again was no appearance on behalf of Mr Geekie or Mrs Geekie. Nor had they responded to the directions made by Tabbaa C in accordance with Practice Direction No.17. I therefore proceeded ex parte to determine Mrs Barrell's Part 6 claim. Mr Geekie and his wife have, in fact, been declared bankrupt, although Mrs Barrell asserted that they are continuing to trade under another name in a beauty salon in Campbelltown. It is also Mrs Barrell's understanding that Mrs Geekie travels to Sydney from interstate (Hobart) regularly - twice a month - to work in the beauty salon. 4 I indicated in my decision of Wednesday, 26 July, 2006 (at pp.2 and 3) that: "...In proceeding ex parte I must be satisfied that proper notice was provided to Mrs Barrell's former employer that her Part 6 application was set down for hearing. It is essentially a question of ensuring natural justice. A party to any litigation is prima facie entitled to have it heard in his presence. He is entitled to dispute his opponent's case, cross-examine any of his opponent's witnesses, call his own witnesses and give such other relevant evidence before the court. Common justice demands, so far as can be given effect to without injustice to the other party, that the litigant who is absent should be allowed to come to court and address issues in dispute [ Grimshaw v. Dunbar (1953) 1 All ER 350 at p.355]. But a party may not simply ignore a claim made against it and expect the proceedings to be aborted. I am satisfied that there was proper notice to Mr Geekie and his wife that Mrs Barrell's Part 6 application would proceed to hearing on Wednesday, 26 July, 2006. Registry staff forwarded a notice of the hearing by mail and by facsimile transmission to the business address of the beauty clinic..." 5 Mrs Barrell has made many fruitless attempts to recover her entitlement - compensation for lost annual leave, pro-rata long service leave and superannuation. As I explained to her and as I outlined in my decision (at p.6), that was not something I could consider in arbitrated Part 6 proceedings which were confined to the question of identifying whether or not her dismissal was unfair. She would be obliged to pursue her claims to recover her unpaid entitlements elsewhere. I understand she attempted to do so. However, I nevertheless also concluded from the evidence before me that the termination of Mrs Barrell's services was unfair - "harsh", "unreasonable" or "unjust", to use the language of S.84(1) [Busways v. Johnson (1994) 55 IR 255 at p.261]. 6 I commented in my decision (at pp.6 and 7) that: "...Whilst there should have been little room for doubt that Mrs Barrell's employment in the beauty salon was coming to an end shortly, Mr Geekie and his wife were prepared to leave Mrs Barrell and her working colleagues with much uncertainty concerning the actual date of closure of the salon. As she indicated in her submissions in the hearing, she received no notice of the termination of her services. I believe that any employee, especially one with a lengthy period of employment as was the position with Mrs Barrell, is entitled to considerably more courtesy than that from her employer. Moreover..., I also regard it as unfair that she has been put to the efforts and legal costs ($550.00) - so far unfruitful - that she has to recover any of (her) entitlements...." I therefore made an order for monetary compensation under Ss.89(5) and (6) for the sum of $5,050.00 to Mrs Barrell within 21 days effective on and from Wednesday, 26 July, 2006. 7 There remained some uncertainty over the actual identity of Mrs Barrell's actual employer, however - Mr Geekie or his wife, singularly or together as a partnership or as a corporate body. I made the order against Mr Geekie. But on Wednesday, 27 September, 2006 Mrs Barrell wrote to me indicating that she was continuing to experience considerable difficulties in enforcing my order, viz: "... Trustees of the estate of both Janet Geekie and Andrew Geekie...have encountered considerable difficulty in obtaining any co-operation with either of them. They are having considerable difficulty in unravelling who and when each of the parties were directors of any entity they were illegally trading under. It has been recommended to me, as a creditor, that I complete a statement of claim, exactly the same - one to Janet and the other to Andrew Geekie. Therefore, I am requesting that you, if possible, either reword the order so that Janet and Andrew are separately or equally liable for the amount which was awarded to me or, alternatively, make a duplicate order that Janet Geekie is also responsible for the amount awarded to me..." 8 This is a case where the actual identity of the employer remains uncertain, despite Mrs Barrell's best efforts to enforce my order. But one thing is clear, however: Mrs Barrell was employed by Mr Geekie and/or his wife, Janet Geekie, in whatever capacity they chose to trade - in the name of Mr Geekie, in the name of Mrs Janet Geekie, as a partnership or as a corporation. I believe that it is open to me to direct the order in a manner which would assist Mrs Barrell. 9 In that respect I note that in his unreported decision of Friday, 11 March, 1977 in Healey v. Johnston [Matter No.142 of 1976] Sheehy J of the former State Industrial Commission heard an appeal against a decision at first instance where the actual identity of the employer remained in some doubt - either an individual or a corporate body which he had formed. His Honour commented (at pp.3 and 4) that: "...on the question (of whether the appellant or a company he had formed was the employer), the evidence was ambiguous, although it was clear that the appellant performed many acts which are consistent with those of an employer... Halsbury's Laws of England (Vol.25 at p.447) states '...whether or not, in any given case, the relationship of master and servant exists is a question of fact...' and in the present case the magistrate said: '...I am quite satisfied that (the appellant), in that situation, was the employer for the purposes of the Act...'. In my view it was quite open for the magistrate to come to that conclusion on the facts. In doing so, I do not think that he fell into any error, manifest or otherwise..." 10 In the circumstances, I propose to amend my order in the following terms to assist Mrs Barrell, replacing my previous order in that respect. O R D E R 1. Mr Andrew Geekie and Mrs Janet Geekie, either collectively or separately, shall pay the sum of $5,050.00 to Mrs Anna Barrell within 7 days. 2. This order shall take effect on and from Thursday, 4 October, 2006. P J CONNOR Commissioner 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.