Doyle v Abel Rent-A-Car [2001] QIRC 29 (2001) 166 QGIG 308

308 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 March, 2001 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Gemma Doyle AND Abel Rent-A-Car (Case No. B1889 of 2000) COMMISSIONER BLADES 8 March 2001 Unfair dismissal – No appearance of respondent – Allegation that business ceased – Change of company name only – Liability found in substituted company – No reasons for termination given – No compliance with s. 77 Industrial Relations Act 1999 – Dismissal harsh unjust and unreasonable – Reinstatement inappropriate – Compensation ordered. -- 1 of 2 -- 23 March, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 309 DECISION Ms Gemma Doyle brings an application to the Commission for reinstatement or compensation because of an alleged unfair dismissal from the employ of Abel Rent-A-Car. The respondent has failed to appear before the Commission either at the hearing or at the conciliation conference on 16 January 2001. The reason for his non-appearance would appear to be that Mr Steve Conn wrote to the Commission on 22 January advising that “Abel Rent-A-Car trading as Aus Fleet Services Pty Ltd ceased trading on 5 January, 2001”. Mr Conn may have been lulled into a false sense of security. Service of the application for unfair dismissal and the Notification for the Conciliation Conference were sworn to be on the 26 December, 2000 but the manner of service is not identified. Service of the Directions Order notifying of the date of hearing was by way of fax on 9 February 2001 and not in apparent conformity with the Rules. However, by way of the letter dated 22 January 2001, Mr Conn admitted receipt of documents on 15 January. In response to his letter my Associate wrote to him on 16 February to the address he had nominated and appraised him of the hearing scheduled for today. In my view, this is an appropriate case for an application of Rule 31 of the Industrial Relations (Tribunals) Rules 2000. I am satisfied that Mr Conn received the application on at least 15 January and was advised of the hearing date on 19 February 2001. I decide under Rule 31 that the possession of that application is service on 15 January and possession of the letter advising of the date of hearing is service of that document on 19 February 2001. Abel Rent-A-Car certainly did not trade as Aus Fleet Services Pty Ltd as Mr Conn suggested. It is not legally possible. The letter dated 22 January is taken to be an admission that Aus Fleet Services Pty Ltd (of which Mr Conn was a Director) traded as Abel Rent-A-Car. There is also Exhibit 5 being the final termination letter under the heading “Aus Fleet Services Pty Limited”. A Business Name search has established that Abel Rent-A-Car is not registered. The registration was cancelled on 16 October, 1997 when a Notice of Cessation of Business was filed but prior to that date, the operator was Aus Fleet Services Pty Limited (ACN 062 661 965). I am satisfied on the balance of probabilities that the employer was Aus Fleet Services Pty Limited trading as Abel Rent-A-Car. Documentation obtained from the Australian Securities and Investments Commission, in the form of Exhibit 3, then indicates that Aus Fleet Services Pty Limited did not cease trading as Mr Conn alleges but changed its name to QSD New Cars Pty Limited from 2 February 2001 by way of documents filed in the ASIC on 6 February. The Australian Company Number of 062 661 965 remains the same. QSD New Cars Pty Limited is the legal entity which is liable under the terms of the employment contract. The applicant was the only witness and her evidence remains uncontested. I accept it on the balance of probability. Her employment had commenced in April, 2000. On Friday 17 November, 2000 she was asked by Mr Conn to complete some reports and he then said to her just before she finished for the day “I’ve been thinking and I think its time you went your way and I went mine”. Ms Doyle had no warning whatsoever that anything was about to happen. There had been no discussions or warnings about conduct capacity or performance and no reason was advanced for the dismissal. The only other conversation was when Mr Conn offered to provide a reference and some week-end work. Understandably Ms Doyle was quite upset. She had been treated like a serf, a chattel or a thing. I am satisfied on the balance of probability, considering those matters set out in s. 77 of the Industrial Relations Act 1999 that the dismissal was harsh, unjust and unreasonable and therefore unfair. Because Ms Doyle would be required to work in close association with Mr Conn, reinstatement or re-employment is impracticable and I consider it appropriate that an award of compensation be made. Ms Doyle has obtained employment, albeit at a lesser rate of pay. She was without work for two weeks. She was paid one week in lieu of notice and that payment will be taken into account. She was paid by way of a gross wage plus commission which varied from week to week. The final week saw a gross payment of $742.20 leaving a net amount after tax of $575.20. The shortfall between what she received at that employment and what she now receives is, I find, about $125.00 per week. I propose to order compensation based on the shortfall between the dismissal and the hearing. I assess this amount at $2625. Being satisfied that the employee was unfairly dismissed and also being satisfied that reinstatement or re-employment would be impracticable, I order QSD New Cars Pty Limited (ACN 062 661 965) to pay compensation in the sum of $2625 to the applicant, forthwith. I order accordingly. B.J. BLADES, Commissioner. Appearances:– Ms G. Doyle, Applicant, on her own behalf. Released: 8 March 2001 ########################################################################################################################## # -- 2 of 2 --