Cox v Photograve Pty Ltd [2008] ICQ 11 (2008) 187 QGIG 127

[Extract from Queensland Government Industrial Gazette, Dated 28 March 2008, Vol. 187, No. 11, pages 127-129] INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 282 - case stated to court David Francis Cox AND Photograve Pty Limited (C/2008/10) PRESIDENT HALL 17 March 2008 DECISION David Francis Cox, an inspector duly appointed under the Industrial Relations Act 1999, is the Applicant in proceedings in the Queensland Industrial Relations Commission. The proceedings have been instituted pursuant to s. 278(3)(c). Photograve Pty Limited, a corporation under the law is the Respondent in those proceedings. The Commission has stated the following questions for determination to the Court: "Whether the Queensland Industrial Relations Commission has jurisdiction to hear and determine an application for a proportionate payment of long service leave pursuant to section 43(4)(c)(ii) of the Industrial Relations Act 1999 (Qld), where the former employee: 1. was employed by a constitutional corporation; and 2. has not pursued an application for reinstatement on the basis of the termination of employment being unfair in either the Australian Industrial Relations Commission or the Queensland Industrial Relations Commission.". The facts agreed between the Applicant and the Respondent are: "1. Fabiola Del Carmen Martinez ('Ms Martinez') was employed by Photograve Pty Limited, the Respondent from 20 January, 1998 to 15 August, 2006. 2. At the time of her termination Ms Martinez was employed under the Clerical Employees Award State - 2002 ('the award') as a Level 4 Clerical employee. 3. As from 26 March, 2006 the award became a Notional Agreement Preserving State Award for the purpose of wages and conditions only. 4. On 10 July, 2006 Ms Martinez was advised by the Respondent in writing that a complaint had been made against her by another worker, which was to be investigated by an independent Industrial Relations Investigator (Document 1*). 5. An investigation was carried out by an employee of The Employment Advisor, at the request of the Respondent. 6. Ms Martinez was interviewed as part of this investigation on 19 July, 2006 and signed a statement (Document 2*). 7. Ms Martinez continued to be employed by Photograve at the workplace until her employment was terminated on 15 August, 2006. 8. Ms Martinez was advised verbally by the employee of The employment Advisor, that her employment was terminated on the basis of misconduct. 9. On 17 August, 2006 Ms Martinez was provided with a letter which specified that her employment had been terminated on the basis of misconduct (Document 3*). 10. Ms Martinez was provided with an Employment Separation Certificate which specified 'misconduct at the workplace' as the basis of her termination (Document 4*). 11. On cessation Ms Martinez was given 4 weeks pay in lieu of notice. 12. It is agreed that Ms Martinez was employed by the Respondent for a period of 8 years, six months, 3 weeks and 5 days and did not serve the ten year period required under section 43 of the Industrial Relations Act 1999. 13. Notwithstanding that, Ms Martinez claims that she is entitled to a proportionate payment of long service leave on the basis that she was unfairly dismissed by the Respondent and is entitled to the payment under section 43(4)(c)(ii). -- 1 of 3 -- 2 14. Ms Martinez commenced an application under section 278 of the Industrial Relations Act 1999 (B2006/188) to the Queensland Industrial Relations Commission claiming pro rata long service leave. 15. Leave was given to withdraw this application on 11 October, 2006 before any determination by the Commission had been given. 16. On 26 September, 2006 Ms Martinez made a complaint to the Department of Employment and Industrial Relations ('the Department'), which was investigated. 17. As a result of the investigation, Inspector David Francis Cox, initiated a section 278 application to the Queensland Industrial Relations Commission, the sole issue being the entitlement to long service leave for the reason of termination under section 43(4)(c) of the Act. 18. The quantum of the claim has been calculated by the Applicant in the amount of $4,234.25. 19. No application for reinstatement on the basis of unfair dismissal has been made to the Australian Industrial Relations Commission or the Queensland Industrial Relations Commission either by, or behalf of Ms Martinez.". [*Documents not reproduced] By s. 265(1)(c) of the Industrial Relations Act 1999, the Queensland Industrial Relations Commission may hear and determine all matters committed to the Commission by the Industrial Relations Act 1999 or another Act. By s. 278(1)(a) application may be made to the Commission for an order for payment of an employee's unpaid wages. By s. 278(8)(a)(i): "(8) On hearing the application,76 the commission or magistrate - (a) must order the employer to pay the employee - (i) the amount the commission or magistrate finds to be payable and unpaid to the employee within the 6 years before the date of the application.". By Schedule (5) "wages" is defined to mean the following: "Wages means - (a) an amount payable to an employee for - ... (iii) leave the employee is entitled to.". Section 43(4) is one of a number of provisions about long service leave. Section 43(4) provides: "However, if the employee's service is terminated before the employee has completed 10 years continuous service, the employee is entitled to a proportionate payment only if - (a) the employee's service is terminated because of the employee's death; or (b) the employee terminates the service because of - (i) the employee's illness or incapacity; or (ii) a domestic or other pressing necessity; or (c) the termination is because the employer - (i) dismisses the employee for a reason other than the employee's conduct, capacity or performance; or (ii) unfairly dismisses the employee.". It has to follow that an employee asserting an entitlement to payment in respect of proportionate long service leave in reliance on s.43(4)(c) may launch proceedings in the commission under s. 278(1)(a) to press the claim. I am unable to identify any language in the Industrial Relations Act 1999, to suggest that an employee relying on s. 278(1)(a) must first or contemporaneously test the fairness of the termination under Chapter 3, Part 2. Because of s. 278(3)(c), that which may be done by an employee may be done by an inspector on his/her behalf. The Workplace Relations Amendment (Work Choices) Act 2005 (Work Choices) does not apply to the exclusion of the Industrial Relations Act 1999 so far as the Industrial Relations Act 1999 deals with long service (see. Work Choices s. 16(1)(a) and (3)(f). The question stated for the determination of the Court is answered "YES". -- 2 of 3 -- 3 Because the issues have not been addressed, I have refrained from all comment about whether "or" at s. 43(4)(c) should be read disjunctively or conjunctively. Neither have I addressed the criteria to be applied in assessing unfairness. Dated 17 March 2008. D.R. HALL, President. Released: 17 March 2008 Appearances: Ms J. Cameron of Legal and Prosecution Services, Department of Employment and Industrial Relations, for the Applicant. Mr M. Heffernan of The Employment Advisor, for the Respondent. Government Printer, Queensland The State of Queensland 2008. -- 3 of 3 --