Dump Truck Pty Ltd v Richards [2011] ICQ 6

CITATION: Dump Truck Pty Ltd AND Sally Anne Richards (C/2010/59 and C/2010/60) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 347 - application for stay of decision Industrial Relations Act 1999 - s. 341(1) - appeal against decision of industrial commission Dump Truck Pty Ltd AND Sally Anne Richards (C/2010/59 and C/2010/60) PRESIDENT HALL 22 March 2011 DECISION [1] There was an earlier Application for Extension of Time, Dump Truck Pty Ltd v Sally Anne Richards (C/2010/62)1. It is convenient to reproduce the history of the matter recounted in the Court's reasons for decision on that occasion: "[1] On 16 August 2010, a Deputy President of the Queensland Industrial Relations Commission published a Decision about an application by Sally Anne Richards to recover moneys in lieu of long service leave. The Deputy President determined that Ms Richards had established an entitlement to the payment, but was unable to quantify the amount to be paid. The matter was listed for further hearing. Directions were issued to ensure that at that further hearing any outstanding matters would be resolved. [2] By a Decision dated 7 September 2010 released the same day, the Deputy President quantified the amount of money to be paid and ordered payment of that amount. The Respondent to Ms Richards' application, viz., Dump Truck Pty Ltd, filed an Appeal to this Court against the Decision of 7 September 2010. The Appeal was brought within the time limit of 21 days set by s. 346(1) of the Industrial Relations Act 1999 (the Act). However, the Appeal was, in substance, about the earlier Decision of 16 August 2010. (In part, the confusion arose because Dump Truck Pty Ltd had sought to use the hearing about quantum to persuade the Deputy President to reverse the Decision of 16 August 2010.) Subsequently, Dump Truck Pty Ltd filed an Amended Application to Appeal attacking the Decision of 16 August 2010. The Appeal was filed on 5 November 2010. It was plainly out of time. The time limit had expired before the Decision of 7 September 2010 was released.". In the result, Dump Truck Pty Ltd was granted an extension of time until 5 November 2010, to appeal against the decision of the Queensland Industrial Relations Commission (the Commission). Outlines of argument were submitted and a hearing was conducted on 10 February 2011. Dump Truck Pty Ltd (the Appellant) has a very weak case. [2] As to the Appellant's first point, in a case in which a claim for payment of money in lieu of long service leave is advanced on the basis of transmission of business, failure to name other than the penultimate employer in the Application, is not fatal. Second, the Appellant's attempt to register an agreement opting out of the Property Sales Award Queensland - State 2005 (the Award) could not succeed. The Award had already ceased to apply to Ms Richards' employment. Third, the submission that there was a common law agreement barring Ms Richards' entitlement to long service leave and/or absorbing the money amounts into her commissions, a submission which involves great difficulty in the construction of the alleged agreement, (wrongly) assumes that such a contract may prevail over the Industrial Relations Act 1999 (the Act). The Appellant's claim to set off sums paid to Ms Richards for commission after the termination of her employment is misconceived. It is not a case of a former employer seeking to appropriate a termination payment in excess of entitlements to a previously unrecognised liability. There was an admission by the Appellant at first instance that the commissions related to transactions which settled after the termination of Ms Richards' employment. Only if the so called common law agreement was lawful and had the meaning attributed to it by the Appellant, were the payments in excess of entitlements. [3] I was at one time concerned that the Appellant has yet to have a trial. At first instance, subsequent to a Directions Hearing, the lay advocate who appeared for Ms Richards filed an outline of submissions annexing documents of (in some cases questionable) evidentiary value. The Appellant filed written submissions going to the Commission's jurisdiction. On the resumption of proceedings, the Appellant tendered the purported "Opt- Out Agreement" and the "Employment Agreement". What followed was a discussion about whether the Respondent's submissions and materials were an answer to the claim. Ms Richards was not put to proof. Not a witness was called. The lay advocate for the Appellant did not remonstrate about the process. Perhaps he did not know of his entitlement to object. However, there is nothing to indicate a dispute as to the facts. 1 Dump Truck Pty Ltd v Sally Ann Richards (C/2010/62) - Decision <http://www.qirc.qld.gov.au> -- 1 of 2 -- 2 [4] Section 320 of the Act does not authorise departure from the rules of natural justice. However, in small claims it does authorise the Commission to deal with issues narrowed by oral concessions and oral/written submissions without insisting on proper pleadings or even an agreed statement of facts. No more than that occurred here. [5] I order that the appeal be dismissed. It is unnecessary to deal with the Application for a Stay. I reserve all questions as to costs. Dated 22 March 2011. D.R. HALL, President. Released: 22 March 2011 Appearances: Mr C. Joy of Workplace Consulting, for Dump Truck Pty Ltd in both matters. Ms A. Coulthard, directly instructed for the Respondent in both matters. -- 2 of 2 --