Bentley v Power and Power, Lawyers [1996] QIRC 868 (1997) 154 QGIG 53

IO ' 1 GOVERNMENT INDUSTRIAL GAZETTE 53 ()lJEl:NSLAND INDUSTRIAL RELATIONS COMMISSION lni..lusrrial Relutitms Act 1990 295 -· application for reinstatement P:imehr Leuna Bentley AN!J tNo. B1329of 1995) CIHEF lNl}l!STRlAL COMMISSIONER BALL AppEcitiDn Rccetv,"'-f 20 December l 996 Rdn,iartcment - Dissdu!ion of Pm1nersh1p Appointment of R:ason for Dismissal Application Di:,misseJ DECISION ln ILcember alter an absence of :,orne years, the applicant recommenced working within the Bnsb:me office of an established fim1 ol solicitors known as Power and Power, Solicitors. l use the expression within r)ie oflke" hernuse the applicant was not employed hy PowcT and Power. The applicartt was employed (by a ,ucce,sion) of se1v1ce com_panic¾ in which th,~ pi.!rtner;; in Power and Power from ti1nc tirne b.ehl the shares and of whi.:h the partners lft)1n tin1e to t.tnlC were directors. Ultimately, followmg upon a restrncturing of the firm m March of l 995 which !ed to the ren:uning of the fum as Power and Power, the d::vice of taking employment services fr•Jm :r shelf company w,.;s abm1doned and the appliumt, and everyone else who worked Within !he bernme employ!"A."S of !he partm,rship The unph,ymen, came wan end in Jul} 1996. Some attempt has ocen made to persuade me !hat the engagement carne to an end on 7 J~dy ] 996 The significance C'if 7 July h; th<lt 1t -,vas 0n that day that quity parmcr, Mr Fraser Power, gave r;o,ire of di,solwion of the panncrship tv tiff, other, Mr Young. lt wa, also 011 1hat day - there 1s an iw:-onSEqnemial conflict of evidence as to whether the meeting occurred 1-)efore or after lunch - that Mr Fraser Pow~r ;:i_s,,emMcd the staff, informed thcrn of the dissolution and told theru that henceforth they were t(; con3iJe1 themselves as unemploye<l. Dissolution of a partnership does nm necessarily !errninate the employment of all of the partnership's emplovees One must look the terms of the contract and the circumstar,ces cJf .;ase Compare Phillips v iL Ht/1 AL.MBRA Palace Cu [ l 90 i] l QB 55 at 54 per Kennedy J anct T,mstall v Condon tl 980] ICR 787 at 791. Jn this ntse, ,iotwithsr;uiding Mr Fraser Prw:er' s advice that the staff ',honk! con~ider th1cmselws be unemployed, l do not cvnsidcr th~ employment of the staff at lht: meeting, and in part.icu!ai the employment of I.he applicant had reen bmught to an end. Jn fact the staff were asked to attend for work, on \,fonday H' July, Tuesday I I and Wednesday 12 July. In fact, they (and in paniculilI the applicant) so. They w1cre paid for thdr labours. This is not one ot those cases where, upon dissolution of the pai1nersh1p. indefinite hirings are replaced by casual engagements. H is apparent from the t,pplicant', payslips, which have been put in cvideace. thar she was m;at1;d ,._, a-:cming cietiit for annual lea>'e and sick leave on each of 10 July and l i July. The calculahons and the recording of them are mconsistem with the thesis that the applicant had become a casual. On a global view uf the evidenc\: my ,iew that th,, relation;;hip of employer and cmpl,Jyee eontinued to ;;xist between the applicant and Power anJ l'ow;;r, Lawyer, wh,:n the applicant entered the premises of Power and Power, Lawyers on the morning of 12 July 1996 On that day her employment certainly cnmc to an cnJ. Shortly after I (1.00 a.m. the Supreme Court of Queensland made an order apr,oint.ing a receiver to the firm of Power and Power. Lawyers. The receiver immediatd:, to tlic !imi',, office, called ih~ staff together, announced which staff members the receiver intended to retain dunng the receivership and terminated Jll other staff. In ca~cs pf this type there is room for argument whether, for the purposes of Division 5 of P:llt 12 of the fodustria! Relations :\et 1990, the dismissal occurs when the Supreme Coun appoim5 a rt.:eiver and/or notice of the makmg of the order is given to the employee, or whether for the purposes of Division 5 of Part 12 the dismissal occurs when the receiver takes the step of telling the employee thm the employee's engagement is at an end. It is not ne.:e,sary to resoJVt, ihose in!eresting que,tions hen:. lf it was the making ol the order andior the publication of !he order which hrnught lhe engagement an end. the employer did not dismiss the applicant and there ha.s been no comra,emion of Dhision 5 of Pan 12. !fit was the :rct of the recdver in mfonnmg the appl!cam that she was dismissetl which brought the employment to an end, the simple llilswer to the allcgaticm of contrnvemion of s. 29 l is that there Vias a valid reason for !he dismissal brn;ed on rhe operational requin:ments of the undenaking or e~tablishment. The whole purpose of appointing the receiver was to bnng the undenakmg or establishment to a!l end. The di,mis<,al of the staff was an c,sential step in the process There a valid reason for what the receiver did, it is urmecessary to anaiy~e the receive, should properly be regarded as the agent of the partnersh.ip hecause even if tile relationship be found to be !hat of princiral and agent there is no wrongful dismissal to attribute 10 !!w principal There no evidence that the dismissal was harsh, u11,1ust or unreasonable withi,i the meaning of s. 29!(2) The evidence which was led really went lo lht qut·stion of the condud of the partnership leading up w the dissolution rather than to the applicant's dismi;sal Notwithstanding his own difficult situation 'vfr Young, who appears for him,elf and for 1he partnership has, rather generously I think, refrained frcm seekrng an order as to cost,. The applicm1t has not been paid all money 01.ving to her. jurisdiction to do a.."'lything about that. l dismiss the application. D.R BALL Chief Industrial Ccmmissioller. 22220.1 DOC -- 1 of 2 -- 54 GOVERNMENT INDUSTRIAL GAZETTE l O January, 1997 The upplica.nt person Mr J. Y01.mg for him,eif and for 1he respondent Date: NIA - Reinsmtcmem Refused, Released: I 9 December l 996 -- 2 of 2 --