Cree v Everbond Pty Ltd t/a Tiltcorp [1991] ICQ 15 (1991) 138 QGIG 1227

1226 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [7 De cember, 1991 [ 1227] I , I 16 DEC 1991 t ] J r The Queensland Government Industrial GazettePUBLISHED BY AUTHORITY Annual Subscription $ 273 ISSN 0 155-9362 Vol. 138 ] SATURDAY, 14 DECEMBER, 199 1 [No. 29 THE INDUSTRIAL COURT OF QU EENS LAND industrial Rela1ions Acl 1990-1991 s. 9.2(2) - appeal from decision of industrial commission Gregory Robert Cree AND Everbond Ptv. Ltd. trading as Tihcorp. (No. CJ5 of 1991) J USTICE MOYNIHAN, PRESIDENT 25 November 1991 Appeal - Reinstatement - Continuity of Service - Monetary Compensation - Emplover - Definition - Employer/employee Relationship - Appeal Dismissed. JUDGM ENT This is an appeal from a decision of the Industrial Relations Commission (the Commission) dealing with an application for re- instatement. The outcome of the proceedings was that the Commission ordered, pursuant to section 11.11 (2)(c) of the Industrial Relations Act 1990-1991 (the Act) that the respondent " either re-employ (the appellant) in his former position from I July 1991 or pay the sum of$ 1.250''. The issue upon which the appeal turns is as to the period of the appellant's employment by the respondent. The a ppellant contends for a period from I July 1988 to 18 February 1991. The Commission proceeded on the basis of a period from I 6 January I 99 I to I 8 February in that year. So far as the monetary outcome of the proceedings are concerned it was accepted that where an employee has less than one year's servi ce the maximum amount of compen- sation is one mo nth's wages. The issue arises in this way. As the Commission found from I July 1988 to 4 July 1990 the appellant was employed by a company called Joinbridge Pty. Ltd. which traded under the style or finn name of "Tiltcorp." as manager of the business conducted as Tiltcorp. Joinbridge Pty. Ltd. ran into financial difficulties. At a meeting of 3 July 1990 attended by various interested parties, 124387-97 including the appellant, it was determined to form a new company to acquire the plant and equipme nt used in the conduct of the business carried on under the style of Ti ltcorp. and to take over that business. The appellant and others were to be among the directors of the new entity. The proposal to which I have referred was effected. The new entity was Everbond P ty. Ltd. It traded under the style or firm name of Tiltcorp. and employed the appellant, who as I have said was also a di rector, as manager from 4 J uly 1990 to 16 January 1991. Th e financial difficulties which had plagued the old entity seem to have continued to plague the new. On 16 January 199 1 a meeting of directors of Everbond Pty. Lt d. , which the appellant attended, was held. A proposal was put forward that the operations carried on under the style Tiltcorp. would be run by a general manager supponed by an operations manager and a sales manager. The sales manager's position was offered to the appellant who was to be answerable to the general manager. The appellant's salary was not changed at this stage, although he was presented with a service agreement by which he was re quired to accept specific ob ligations. The appellant resigned as a di rector of Everbond Pty. Ltd . on 17 January but continued as sales manager until 18 February when he was advised that the company could not afford 10 pay him any more, although they wished to retain his se rvices for the next three or four weeks to complete some unfinished matters. The Commission determined all issues apart from that which I have identified as being in issue in favour of the appellant. It concluded t hat in respect of the peri od from 4 July 1990 10 16 January 1991 the appellant was an employer rather than an employee. In this context reference was made to section 2.1 of the Act which defines an employer to mean - "(a) a person emp loying, or who usually emplo ys, one or more employees, on behalf of that person or of any ot her person; and includes - (c) a person carrying on a calli ng in which employees are usually employed notwithstanding_ that fo r the time being em ployees are n ot employed therem; (d) a person who is a managi ng director, manager, secretary or member of the governing body (however called) of any body corporate, partnership, firm or association of persons: -- 1 of 2 -- 1228 QUEENSLAND GOVERNMENT IN DU STRIAL GAZETTE (14 December, 1991 (e) i'n relation to persons -referred to in paragraph (c) of the defi,ilition ·employees', the partnership firm constituted, or ~aimed to be constituted, by such persons; (D in relation to proceedings for payment or recovery of mone ys, a former employer;". ' ' There is t'o my mind no doubt that Jo inbridge Pty. Ltd. and Everbond Pty. Ltd. are separate lega l entities albeit that both traded under the style or fi rm name of Tiltcorp. The appellant's engage- ment by Everbond Pty. Ltd. was a fresh contract of employment with a distinct legal entity. The agreement reflected in exhibit 2 does not change that and the provision of the Act in respect of continuity of employment, for example from the point of view of sick leave (section 1 1.1 4) or long service leave (section 11.23) are of li ttle assistance. They are in fact to the contrary in that their necessity contemplates that otherwise there would not be conti- nuity. In any event this aspect does not seem to have been an issue in the proceedings below. On the other hand I am inclined to think that throughout the period of his relationship with the respondent,the ap pellant was an employee. The office of director was separate from being a manager. It is not impossible that the appellant be an employer by statutory definition for some aspects of the Act but not for others. In any event the issue is academic since emp lo yment from 4 July 1990 to 18 February I99 I is less than 12 months - the outcome on th is basis could not be any different. The appeal is therefore dismissed. Dated this twenty-fifth day of November. I 99 I. M.P. MOYNIHAN, Presiden t. Appearances :- Mr R.J. Livingstone for Gregory Robert Cree. Mr L. Catchpole for Ev erbond Pty. Ltd. Operative Date: N/A Appeal - G.R. Cree -v- Everbond Pty. Ltd. trading as Tiltcorp. 14 December, 199 1] QUE ENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1229 -- 2 of 2 --