Baker v Owen Phillip Gould t/as Owen Gould Real Estate Agent [2004] QIRC 203 (2004) 177 QGIG 757

10 December, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 757 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Vocational Education, Training and Employment Act 2000 – s. 230 – application to appeal Julie Mae Baker AND Owen Phillip Gould t/as Owen Gould Real Estate Agent (No. AT8 of 2004) COMMISSIONER FISHER 24 November 2004 Application to appeal – Vocational Education, Training and Employment Act 2000 s. 230 – Cancellation of training contract – Amended Show Cause Notice – Information Notice – Employment Relationship – Performance issues – Financial issues – Financial hardship relied on to cancel training contract – Appellant argues financial hardship cannot be sustained – Commission finds grounds of financial hardship can be sustained – Office of Fair Trading contacted to confirm sale of business – Application denied – Industrial Relations Act 1999 s. 139 – Appellant seeks wages between termination and contract cancellation date – Vocational Education, Training and Employment Act 2000 s. 235 – Compensation awarded equivalent to outstanding wages to be paid within 22 days of decision release. DECISION This is an appeal by Julie Baker against the decision of the Training and Employment Recognition Council (TERC) to cancel the training contract made between her and Owen Phillip Gould trading as Owen Gould Real Estate Agent. The training contract was entered into on 2 December 2003 and cancelled on 11 August 2004. Notice of the decision to cancel the training contract was issued by Thomas Hagan, Training Consultant, Department of Employment and Training (DET), acting under delegation from the TERC. Mr Hagan made the decision in consultation with Peter Langbein, Assistant Regional Director and Tracey Holt, District Manager of DET, Wide Bay. The decision followed the issuing of a Show Cause Notice on 9 July 2004, later replaced by an Amended Show Cause Notice on 12 July 2004, and consideration of submissions by Ms Baker objecting to the cancellation of the training contract as well as consideration of other information about the state of Mr Gould’s business collected as a result of the investigation conducted by Ms Holt. Mr Gould submitted an application on 30 June 2004 requesting cancellation of the training contract on the grounds that the employer was facing financial hardship. On receipt of the application DET considered the relevant sections of the Vocational Education, Training and Employment Act 2000 (the VETE Act) dealing with the cancellation of a training contract and concluded that the application was made pursuant to s. 63(1)(a)(ii), viz: “63(1) If a party to a training contract can not perform the party’s obligations under the contract on any of the following grounds, the party may apply in writing to cancel the contract – (a) if the party is an employer (i) … (ii) there has been a substantial change in the employer’s circumstances and the change has affected the employer’s capacity to perform the employer’s obligations under the contract;”. In the Information Notice provided to the parties to the training contract the key reasons for the decision to cancel the contract were as follows: “ … • Mr Lynton Lewis CPA, Accountant to Owen Gould Real Estate Agent, in his professional opinion advised that Owen Gould Real Estate has extensive outstanding debts and is facing financial hardship and possible bankruptcy. Mr Lewis further provided that Owen Gould Real Estate could not support the trainees wages through to completion. • Senior Inspector Nikolaus Berceanu of the Office of Fair Trading confirmed that Owen Gould Real Estate had sold the business at 426 Charlton Esplanade Torquay on 22/7/04. Furthermore, a client service officer, Hazel Wroe of the Office of Fair Trading notified DET on 27 July 2004 that 3 members of the sales staff from Owen Gould Real Estate Hervey Bay had notified the Office of Fair Trading that they were no longer employed.”. Ms Baker advances six grounds for the appeal. For brevity I do not repeat them here, however in essence, Ms Baker rejects the claim of financial hardship on the part of Mr Gould, suggests that Mr Gould was in a financial position to continue the training contract and submits that Mr Gould had other motivations for trying to cancel the training contract. Nature of the Appeal Section 232(1) of the VETE Act provides that an appeal to the Industrial Commission is by way of rehearing on the record. Subsection (2) provides however that the Commission may hear evidence afresh, or hear additional evidence, if the Commission considers it appropriate to effectively dispose of the appeal. In this matter the Commission decided to hear evidence afresh as this was considered appropriate in the circumstances. The Commission and all parties were provided with a copy of the record in accordance with Rule 109 of the Industrial Relations (Tribunals) Rules 2000. In Murrays v Training Recognition Council (2002) 171 QGIG 93 Hall P considered the function of the Commission under s. 232 of the then Training and Employment Act 2000 (now the Vocational Education, Training and Employment Act 2000). Relevantly, the President decided that the function of the Commission under that section was “to decide for itself whether the training agreement should be cancelled.”. The President held that the responsibility of the Commission in that case was to give the appellant “a full and fair hearing of the case and a decision quite independent of any view formed by any other adjudicators.”. Thus, in an appeal under s. 232(2) of the VETE Act, it is the function of the Commission to decide, whether on the material before it, grounds exist for the cancellation of the training contract and in this case, that grounds exist pursuant to s. 63 of the VETE Act. The Employment Relationship Fundamental to any training contract is the development of a training plan, the provision of on-the-job training and the engagement of a Registered Training Organisation (RTO) to ensure the Training Plan is complied with and to assess the trainee’s competencies. It is common ground that the training plan was not developed and other training obligations were not fulfilled. In particular, while an RTO had been engaged, Mr Gould decided not to proceed with its services and as a result, delays and possible contravention of the VETE Act occurred. The many difficulties experienced with the training fundamentals whilst impacting on the relationship, were not ultimately matters that the Commission could take into account in this appeal. Those deficiencies and any remedies are addressed by other means elsewhere in the VETE Act. -- 1 of 5 -- 758 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 December, 2004 Ms Baker commenced employment with Owen Gould Real Estate Agent in Hervey Bay on 1 December 2003. The relationship between Ms Baker and the second respondent began to sour in April 2004 when Ms Baker became concerned about the lack of provision of training modules to complete. Ms Baker raised her concerns on 19 April 2004 with Mr Gould who responded by asking her whether she would consider working in his Maryborough office. Ms Baker indicated her reluctance at the time but agreed to advise him of her position after the staff meeting the next day. At that time Ms Baker declined to work from Maryborough given her small weekly wage and the travel costs associated with working from that office. The matter was deferred until Mr Gould’s return from New Zealand in early May 2004. On 15 May 2004 Mr Gould advised Ms Baker in writing that he required her to work in his Maryborough office on a fortnightly rotation with the Hervey Bay office. Although Ms Baker objected to this requirement also in writing, she nonetheless complied with it. The fortnightly rotation commenced on 31 May 2004. The requirement to work on a fortnightly rotation coincided with Mr Gould raising performance issues in relation to Ms Baker, the detail of which is unnecessary to outline here. It is apparent again from the notes taken by Training Consultant Hagan, that Mr Gould first notified his intention to cancel the training contract on 15 June 2004 on performance grounds. The notes were taken contemporaneously and were not challenged by Mr Gould. Mr Hagan’s notes further reveal that at that time Mr Gould was unable to establish grounds that would warrant cancellation under ss. 63, 66 Cancelling registration of the training contract or 71 Discipline of the VETE Act. Mr Gould is then recorded as saying, “I don’t want to reveal my financial position to anyone but if that is what it takes to get rid of her I will get a statement from my accountant.”. Mr Hagan then explained the provisions of s. 63 of the VETE Act. It was not until 28 June 2004 that Mr Gould advised he had obtained a letter from his accountant indicating financial hardship. Mr Gould did not want at that time to submit a request for cancellation of the training contract signed by him alone. He advised Mr Hagan that he wished to discuss the matter with Ms Baker to see whether the parties could mutually agree on cancellation. The meeting between Mr Gould and Ms Baker was held on 30 June 2004. It was a disaster. Ms Baker believed that she was being pressured into agreeing to a cancellation and walked out of the office with the intention of lodging a Workcover claim. Later that day Mr Gould advised DET that he wished to apply for a one party cancellation of the training contract. He completed a form requesting cancellation on the grounds of financial hardship. It is apparent again from Mr Hagan’s notes that Mr Gould was angry at and frustrated with Ms Baker. Mr Gould made it clear to Mr Hagan that he (Gould) wished to get rid of Ms Baker. It is equally clear from Mr Hagan’s notes that Ms Baker was distressed by Mr Gould’s treatment of her. The employment relationship was brief and for at least half of it, unhappy for both parties. On 9 July 2004 Mr Gould wrote to Ms Baker advising of his decision to terminate her employment effective 23 July 2004. He further advised that she was not required to attend for work and that she would be paid up to 23 July 2004. Mr Gould sold his Hervey Bay office on 22 July 2004. Financial Issues Mr Hagan relied on the following financial information to help establish the requirements of s. 63 of the VETE Act: • Written advice from Mr Gould’s accountant, Mr Lynton Lewis, CPA, providing four urgent recommendations including the “immediate retrenchment of unproductive staff – i.e. traineeship.”. • Further written advice from Mr Lewis advising Mr Gould to adhere to his recommendations else he faced “immediate financial hardship with the possibility of bankruptcy.”. • Written advice from the Australian Taxatiozn Office (ATO) setting out the extent of Mr Gould’s tax debt. • Two interviews of Mr Lewis by Ms Holt on 30 July 2004 and on 6 August 2004. In those interviews Mr Lewis advised that the sale of the Hervey Bay office would increase Mr Gould’s cash flow in the short term, however, Mr Gould still had several financial issues to face. Mr Lewis was also unable to say whether Mr Gould’s financial situation could support the trainee’s employment through to completion. These, together with the sale of the Hervey Bay office of Owen Gould Real Estate Agent, were the substantial factors that led to the conclusion that the requirements of s. 63(1)(a)(ii) of the VETE Act had been satisfied. The appellant’s case against the issue of financial hardship relied on the following: (1) That the situation of the ATO tax debt must have existed at the time of commencement of her traineeship. In that regard nothing had changed to warrant a claim of financial hardship. (2) That Ms Baker had seen Mr Gould uplift a couple of cheques from the Hervey Bay office of his business. She contended that these cheques had not been banked into the business bank accounts and hence Mr Gould was hiding income from his accountant (and it follows, the ATO). (3) That Mr Gould had lodged a development application with the Maryborough City Council to develop farm stay dwelling houses on land owned by him. (4) The DET had not sufficiently interviewed Mr Lewis or taken a formal statement from him about the financial position of Mr Gould. In the submissions of the appellant, these factors showed that an argument of financial hardship could not be sustained. In this matter, the Commission has had the benefit of direct evidence of the key participants in this sorry chain of events. In particular, the Commission heard extensive evidence from Mr Gould about his financial affairs. As this evidence was suppressed under an order pursuant to s. 679 of the Industrial Relations Act 1999 I do not intend to refer to it in depth. However, in that evidence Mr Gould gave a detailed account of the financial issues affecting him personally and his business. The appellant had the opportunity to view documentary material and to cross-examine Mr Gould on that material and other issues raised in his evidence in chief. In laying himself bare on these financial issues, Mr Gould suffered great distress which was clearly evident to the parties and the Commission. Based on the evidence given by Mr Gould I am satisfied that he owed a substantial tax debt to the ATO at the time of entering into the training contract with Ms Baker. He had been carrying that debt for some time and believed (mistakenly) that the employment of a trainee would assist the productivity of his business. In February 2004, more than a month after the completion of the one month probationary period of the traineeship, the ATO notified Mr Baker of its intention to seek the recovery of the debt. This forced Mr Gould to examine ways of reducing his expenditure to meet his tax obligation otherwise he faced possible bankruptcy. This included deciding to sell his Hervey Bay office, the result of which was to reduce but not eradicate his debt to the ATO. -- 2 of 5 -- 10 December, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 759 I accept therefore that the notification from the ATO in respect to its intention to recover the debt was a circumstance in Mr Gould’s financial situation that did not exist when the traineeship commenced. The allegation relating to Mr Gould uplifting cheques was true to the extent that Mr Gould acknowledged attending the Hervey Bay office of his business and taking with him commission cheques. Mr Gould is a sole trader. It was his evidence that he banked cheques made out to Owen Gould Real Estate Agent into his business accounts. A record of all cheques was kept in the office and his accountant and office administrator of the Maryborough office would work out where the monies came from. He denied absolutely hiding cheques from his accountant or the ATO. There was simply no evidence produced by the appellant to support her allegation that Mr Gould was hiding cheques from his accountant and the ATO. In the absence of any supporting evidence, it is a scurrilous accusation. Mr Gould acknowledged the truth of the third contention that he had lodged a development application relating to his residential property. His evidence was that it was his partner, Ms King, who had paid for the development application as he had insufficient funds of his own to do so. The purpose of the development application was to allow, when funds permitted, the diversification of his business interests. Such a strategy was recommended by his accountant as a means to protect and enhance his assets. It is perfectly understandable that the applicant would be suspicious of a development application made to a Council shortly after an application to cancel her traineeship on financial hardship grounds was made. The lodgement of the development application at such a time would inevitably raise questions about the truth and sincerity about claims of financial hardship. I am satisfied in this instance, again based on the openness of Mr Gould’s evidence on this matter, that he did not expend his own funds in making the application. In that regard it is not a matter that derogated from his claims of financial hardship. The fourth concern raised by the appellant related to the interviews of Mr Lewis by Ms Holt and the subsequent reliance on this information to substantiate Mr Gould’s application for cancellation of the training contract. Ms Holt conceded that her interviews with Mr Lewis were brief –about ten minutes in total. However, she claimed that in that time the information necessary to the consideration of the application was given. Moreover, she stressed that the financial hardship contention was only one part of the matter. It was Ms Holt’s evidence that the sale of the Hervey Bay office was the key factor in proving a change in circumstances under s. 63 of the VETE Act. Ms Holt said that a formal statement was not taken from Mr Lewis as one was not required under the VETE Act. I am satisfied that a formal statement was unnecessary in the circumstances. Ms Holt’s interviews of Mr Lewis could however only be described as cursory. It would have been preferable had Ms Holt sought to gain more detail from Mr Lewis especially about such matters as when he had first given advice to Mr Gould about the restructuring of his business; what steps Mr Gould was taking to reduce his ATO debt (other than the sale of the Hervey Bay office) and what proportion of the wages bill was a trainee’s wage. The information about the business restructuring would have been useful given that the pressure from the ATO was said to have been placed in February 2004 yet the first written advice from Mr Lewis to Mr Gould was dated 21 June 2004. In any event I am satisfied that any deficiencies in Ms Holt’s interviews of Mr Lewis have been cured by the taking of evidence in these proceedings. In summary I reject the appellant’s contentions regarding financial hardship and find that such grounds can be sustained. Other Motivations The appellant contended that the second respondent was motivated by reasons, other than financial ones, to cancel her training contract. In this regard the appellant referred to Mr Gould’s dissatisfaction with her performance, the delay in arranging the provision of training modules because of a desire to change training providers for reasons associated with cost, and Mr Gould’s dislike of her querying her conditions, the provision of training etc. The appellant submitted that Mr Hagan’s notes only confirmed these concerns. The effect of this was said to be that Mr Gould hid behind the grounds of financial hardship rather than pursuing the cancellation of the training contract for reasons that he believed existed, viz, performance, but were less likely to be established. Based on the unchallenged notes of Mr Hagan I consider that evidence shows that Mr Gould wanted to cancel the training contract for whatever reason could be sustained. Mr Gould said in evidence that he initially sought to cancel the training contract on grounds other than financial hardship because he did not wish to reveal his parlous financial position. Given his reaction in the witness box in outlining his financial affairs, I accept that evidence to some extent. However, I believe Mr Hagan’s notes to be the most revealing evidence. Mr Gould was looking for a reason to cancel the appellant’s training contract. He was clearly unhappy with Ms Baker’s performance and did not want her in his employ. The employment relationship had deteriorated to a point of no return, at least from Mr Gould’s perspective. If the only sustainable ground for the cancellation of the training contract was financial hardship, then those would be the grounds submitted. At least he would be able to prove those grounds. In the circumstances, the appellant’s contentions about the motivation of Mr Gould are substantially correct. The difficulty for the appellant is that Mr Gould was able to prove to DET’s, and ultimately the Commission’s satisfaction, that financial hardship did exist. Decision pursuant to s. 63 of the VETE Act Earlier in this decision I set out the provisions of s. 63(1)(a)(ii) of the VETE Act that were relied on by Mr Hagan, under delegation from the TERC to cancel the training contract. In essence what needs to be established is that there has been a substantial change in the employer’s circumstances and that change has affected the employer’s capacity to perform the employer’s obligations under the contract. The first respondent has submitted that there were two elements to the substantial change in the employer’s circumstances. One was the financial hardship that Mr Gould was enduring and the second was the sale of his Hervey Bay office. Both of these elements, and particularly the latter, had been found to have affected the employer’s capacity to perform the employer’s obligations under the contract. In the course of his consideration of this matter, Mr Hagan made enquiries of the Office of Fair Trading in Hervey Bay. Senior Inspector Nikolaus Berceanu of that Office confirmed that Owen Gould Real Estate had sold the business at 426 Charlton Esplanade Torquay (the Hervey Bay office) on 22 July 2004. Further, a client service officer of the Office of Fair Trading notified DET on 27 July 2004 that three members of the sales staff from Owen Gould Real Estate Hervey Bay had notified that Office that they were no longer employed. Mr Hagan concluded that this was a substantial change in the employer’s circumstances as required by s. 63 of the VETE Act particularly as the appellant was employed out of the Hervey Bay office. -- 3 of 5 -- 760 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 December, 2004 In the grounds of her appeal the appellant strongly disputed that three staff from the Hervey Bay office were no longer employed by Owen Gould Real Estate Agent. The appellant further contended in the appeal grounds that this information should not have been relied on to decide the case. In the amended Show Cause Notice dated 12 July 2004 matters relating to the closure of the Hervey Bay office were added. These matters had not been referred to in the original Show Cause Notice. In the amended Show Cause Notice one of the “Facts and Circumstances” relating to the action to cancel the training contract was: “Employer Owen Gould advised DET on 7 July 2004 that he has given notice to his staff that he will close the Hervey Bay office effective 23 July 2004.”. The appellant did not specifically address this matter in her submission to Mr Hagan objecting to the cancellation of the training contract. In my view DET was correct in checking the veracity of Mr Gould’s advice with the Office of Fair Trading. Such matters relating to real estate business are required by law to be registered with that Office. In my view DET was entitled to rely on the information provided by another Government body, especially when it was not challenged by Ms Baker. Finally I would note that the appellant did not produce any evidence to the Commission disputing the advice given by the Office of Fair Trading. There is however one matter which arose out of the evidence of the appellant. Ms Baker said in her evidence that as from 30 June 2004 she had been permanently transferred to the Maryborough office of Owen Gould Real Estate Agent. This contention was rejected by Mr Gould in his evidence and Mr Hagan’s evidence was that no such permanent transfer had been mentioned to him. The import of the appellant’s evidence, if accepted, is, of course, that the closure of the Hervey Bay office, while a substantial change to the employer’s circumstances, is not one that affects the employer’s capacity to perform his obligations under the contract. The difficulty with the appellant’s contention is that it was raised for the first time in her oral evidence. Nowhere is it mentioned in her written statement of evidence, and from the reaction of the first and second respondent at the bar table, the evidence certainly came as a surprise. (While Mr Gould and Ms Holt were at the bar table at the time, Mr Hagan was not). Further, no correspondence exists to substantiate the appellant’s claim. This is an important point, because as Mr Gould said in his evidence, by this time major issues between him and Ms Baker were reduced to writing. The last piece of correspondence relating to the matter was in May 2004 where the fortnightly rotation between Maryborough and Hervey Bay was established. Ms Baker said the variation to her place of employment had been advised orally by Mr Gould to her in a meeting on 30 June 2004. However, I note that in Mr Hagan’s notes of 30 June 2004, when discussing with Mr Gould the setting up of a mediation session between Ms Baker, Mr Gould and himself over the issue of cancellation of the training contract, the matter of location is mentioned. Mr Hagan proposed that the mediation be conducted at Hervey Bay as Ms Baker had requested that it occur there. In response Mr Gould is recorded as saying “no she works in Maryborough now, she can come to Maryborough.”. This statement lends weight to Ms Baker’s evidence. Mr Hagan’s record of this statement was not put to him or to Mr Gould while giving their evidence. Ms Baker’s employment was terminated by Mr Gould as from 23 July 2004, however, her last day of attendance at work was 30 June 2004. On balance I reject Ms Baker’s oral evidence that she was permanently transferred to Maryborough. In addition to there being an absence of documentation to support this evidence, nowhere does she make mention of it. It is not recorded in Mr Hagan’s notes of conversations with Ms Baker, it is not mentioned in her submission objecting to the cancellation of the contract nor is it raised in any other correspondence that Ms Baker sent to DET. For all of these reasons I find that the rotational arrangement would have continued in operation had Ms Baker been fit to attend work and her employment not been subsequently terminated. Appeal re Decision to Cancel Training Contract The decision by Mr Hagan was made pursuant to s. 63(1)(a)(ii) of the VETE Act. The only issues raised by the appellant about the process followed by DET in deciding the appeal were those relating to the interview of Mr Lewis and the consideration of advice provided by the Office of Fair Trading. I have already dealt with those matters. No issue was taken about whether procedural fairness was afforded to the appellant. In case it be necessary I record that I consider the appellant was properly informed in the amended Show Cause Notice of the grounds for the proposal to cancel the training contract and the facts and circumstances supporting the proposed cancellation. The appellant was given the opportunity to object to the proposed cancellation and did so. The record and evidence shows that matters raised by the appellant were considered by DET. After considering the submissions of the appellant, the advice from Mr Lewis and the information supplied by the Office of Fair Trading, Mr Hagan considered that the elements of s. 63(1)(a)(ii) of the VETE Act had been satisfied. The financial hardship being experienced by Mr Gould and the sale of his Hervey Bay office were the factors relied on by Mr Hagan to be satisfied that there had been a substantial change in the employer’s circumstances and that change affected the employer’s capacity to perform his obligations under the contract. I am satisfied that grounds existed for the cancellation of the training contract pursuant to s. 63(1)(a)(ii) of the VETE Act. Those grounds are those relied on by Mr Hagan to cancel the training contract. The appeal as it relates to those grounds is dismissed. Appeal re Breach of s. 139 of the Industrial Relations Act 1999 The appeal raises one further ground. The appellant alleges that the second respondent terminated her employment in writing on 9 July 2004 with the effective date of termination being 23 July 2004. The appellant submits that this is a breach of s. 139(2) of the Industrial Relations Act 1999 (Industrial Act) in that the training contract was not cancelled until 11 August 2004. The appellant seeks the payment of wages between 23 July and 11 August 2004 together with the payment of all superannuation payments required by law. It is contended no superannuation payments have been made since the commencement of employment. The grounds of appeal refer to s. 139(2) of the Industrial Act. This section provides that: “The apprentice’s or trainee’s employment with an employer cannot be terminated unless the apprenticeship or traineeship is completed or cancelled under the Vocational Education, Training and Employment Act 2000.”. In my view any complaint by the appellant under the Industrial Act should be raised in an application made pursuant to that Act. Appeals to the Industrial Commission against decisions of the TERC or other decisions pursuant to the VETE Act are permitted only in respect of the decisions listed in s. 230 of that Act. -- 4 of 5 -- 10 December, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 761 The appellant has confused the powers of the Commission under the Industrial Act and the VETE Act. Being essentially self represented this is understandable. Section 235 of the VETE Act does however give power to the Commission to do certain things where there is an appeal to the Commission about the cancellation of a registered training contract and the Commission decides that the employer has purported to cancel the contract other than in a way allowed under the VETE Act. In effect the appellant contends that this is what occurred. Further, that the relief sought by the appellant is not that provided by the Industrial Act but the VETE Act. For a breach of the Industrial Act as claimed by the appellant, the penalty is the imposition of up to 40 penalty units with each penalty unit valued at $75. As both the appellant and the respondent were representing themselves and I think want the matters between them to conclude, I propose to deal with the issue raised by the appellant. There is merit in the appellant’s contention. Her employment was in fact terminated before the training contract was cancelled. This is not permitted by the VETE Act. Mr Hagan’s notes show that he advised Mr Gould that the training contract remained active until such time as training is completed or the contract is cancelled. In addition, he advised that terminating Ms Baker’s employment before a decision had been made on whether the training contract would be cancelled would be in breach of the VETE Act. Mr Hagan’s advice to Mr Gould was later confirmed by Ms Holt. Mr Gould, however, relied on the provisions of the training contract that state that both parties to the contract agree that the training contract expires when the employer ceases to conduct its business in the normal course or disposes of the whole or any part of its business other than in the normal course of business. He said this is what happened with the sale of his Hervey Bay office on 22 July 2004. Further, he dismissed the other staff employed out of that office as a consequence of the sale. As Ms Baker was also employed out of that office then it followed that she too had to be dismissed. He concluded that the provisions of the training contract obligated the parties to mutually agree to the termination of the contract in these circumstances. The provisions of the training contract cannot override legislation. The relevant legislation provides that the trainee’s employment cannot be terminated unless the traineeship is cancelled. Mr Gould ignored the advice of Mr Hagan and later by Ms Holt to his detriment. I accept it is difficult to continue the employment of a trainee when a business has been sold. In this case however Mr Gould continued to operate the Maryborough office of his business after the Hervey Bay office was sold. As Ms Baker was working out of that office on a fortnightly rotational basis it was possible for the training contract to remain on foot by having her continue to work out of that office until the application to cancel the training contract was resolved. In my view the sale of the Hervey Bay office was used by Mr Gould as a smokescreen for the real reason for the termination of Ms Baker’s employment. Based on the many unsavoury remarks made by Mr Gould to Mr Hagan about Ms Baker, it is clear that Mr Gould simply wished to bring the employment relationship to an end as quickly as possible and that was to be achieved by terminating Ms Baker’s employment. I am satisfied that Mr Gould was attempting to avoid his obligations as an employer of a trainee. Moreover, his actions were in breach of s. 139(2) of the Industrial Act. Accordingly, I find that Mr Gould purported to cancel the contract other than in a way allowed by the VETE Act. The VETE Act provides alternative remedies in such a case. The primary remedy provided is the resumption of training. The alternative remedy is that where that is found to be inappropriate then compensation can be awarded. I am satisfied that the resumption of training is inappropriate for two reasons. Firstly, there has now been an irretrievable breakdown in the relationship between the parties to the training contract. Secondly, while it would have been feasible to have Ms Baker continue to work out of the Maryborough office of Owen Gould Real Estate Agent until the investigation into the application to cancel the training contract was completed, it was not feasible to have that continue on an ongoing basis. The Hervey Bay office was Ms Baker’s principal place of employment and there clearly are cost imposts on her if she was to work out the balance of her traineeship from the Maryborough office. I therefore order that Owen Phillip Gould trading as Owen Gould Real Estate Agent pay to Julie Mae Baker compensation in an amount equivalent to the wages that would have otherwise been payable from 23 July 2004 (the date of termination of employment) until 11 August 2004 (the date the training contract was cancelled). Such amount to be paid within 22 days of the date of release of this decision. The matter of superannuation contributions, if they have remained unpaid, should be pursued by way of separate application or with the ATO. Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2004 5 & 6 October Released: 24 November 2004 Appearances: Mr N. A. Baker for the appellant. Mr R. McColm and with him Ms T. Holt for the Training and Employment Recognition Council. Mr O. P. Gould and with him Ms P. King on behalf of the second respondent. -- 5 of 5 --