Anderson v Darwin Plastic Surgery Trust t/a Gold Coast Plastic Surgery (First Respondent), Hertess (Second Respondent) & Darwin Plastic Surgery Pty Ltd t/a Gold Coast Plastic Surgery (Third Respondent) [2006] QIRC 125 (2006) 183 QGIG 786

[Extract from Queensland Government Industrial Gazette, dated 20 October, 2006, Vol. 183, No. 12, pages 786-787] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 74 - application for reinstatement Jill Anderson AND Darwin Plastic Surgery Trust t/a Gold Coast Plastic Surgery (First Respondent), Dr Isolde Hertess (Second Respondent) and Darwin Plastic Surgery Pty Ltd t/a Gold Coast Plastic Surgery (Third Respondent) (TD/2006/376) DEPUTY PRESIDENT BLOOMFIELD 5 October 2006 Application for reinstatement - Jurisdictional argument - Claim that applicant employed by a constitutional corporation employing less than 100 employees and that the Commission did not have jurisdiction to hear matter - Contract of employment with a business name - Ownership of business name - Other indications as to identity of true employer - Not satisfied on balance of probabilities that applicant employed by a constitutional corporation - Hearing to proceed. REPORT ON DECISION (as edited) In giving his decision from the Bench on 27 September 2006, Deputy President Bloomfield stated: "I can indicate that I am satisfied that Darwin Plastic Surgery Pty Ltd owns the business name Gold Coast Plastic Surgery and has owned that trading name - or business name - since the business was registered on 21 February 2005. However, I am not satisfied on the balance of probabilities that the applicant was employed by Darwin Plastic Surgery Pty Ltd from the time of the commencement of employment and, more particularly, at the time of her termination. Mr Power claims that the contract of employment between the parties makes it clear that the applicant was employed by "Gold Coast Plastic Surgery" and goes on to claim it was always intended that she be employed by that entity and no other. In that regard, he says, her employer could only have been the organisation which owns the business name, namely Darwin Plastic Surgery Pty Ltd. However, the letter of appointment, in its first line, simply confirms the appointment of the employee at Gold Coast Plastic Surgery. Elsewhere, the place of employment is used interchangeably with the (supposed) name of employer, said to be Gold Coast Plastic Surgery. As we all know a business name cannot employ anybody, it is just a sign on the door. The most decisive piece of information at the current time, from my perspective, about who is the actual employer of the applicant is the PAYG payment summary given to the applicant by her "employer" which shows that the employer who was paying the wages, so far as the Taxation Department was concerned, was an entity trading under ABN 59 547 409 063. Whilst the PAYG payment summary claims that the name of that "employer" was Gold Coast Plastic Surgery, the ABN number actually links back to an entity known as Darwin Plastic Surgery Trust. In the circumstances, I propose to reject the respondent's assertion that the applicant was, at the time of her termination, employed by Darwin Plastic Surgery Pty Ltd. It might, ultimately, turn out to be that that was the case but on the material that's presently before me I am not able, as I indicated earlier, to conclude on the balance of probabilities that it is the case. To establish its case the respondent would need to produce the profit and loss statements and balance sheets for both the Pty Ltd company and the Trust and, more particularly, the annual returns and taxation returns for those entities. If, as Dr Doyle asserts, the material on the PAYG summary as to the ABN number is incorrect then that will be borne out by the financial statements. If the financial statements and returns for the Trust show that it merely holds assets and has not traded then the case on behalf of the respondent might be enhanced. If, however, the returns show that the Trust did trade or that wages were paid by it then the respondent's case would, in effect, disappear. In the circumstances, I think it is best that I move now to reinstate the directions for preparation and lodgement of material to allow the applicant's claim for unfair dismissal to be heard and determined on its merits.". -- 1 of 2 -- 2 Dated 5 October 2006. By the Commission, [L.S.] G.D. SAVILL, Industrial Registrar. Released: 5 October 2006 Appearances: Ms J. Anderson, Applicant. Mr G. Power, as agent, instructed by, Mr J. Campbell, of Campbell Muscat Lawyers, for the Respondents. Government Printer, Queensland The State of Queensland 2006. -- 2 of 2 --