Cooper v Quicksilver Diving Services Pty Ltd

[1996] IRCA 435

DECISION NO: 435/96

CATCHWORDS

INDUSTRIAL LAW  - TERMINATION OF EMPLOYMENT - ALLEGED UNLAWFUL TERMINATION  -  WHETHER APPLICANT AN EMPLOYEE OF THE RESPONDENT  -  VALID REASON  -  OPERATIONAL REQUIREMENTS  -  FAILURE TO GIVE ADEQUATE NOTICE

INDUSTRIAL RELATIONS ACT  1988 , s170EA, 170DE, 170DB

PASQUALE COOPER -v- QUICKSILVER DIVING SERVICES PTY LTD

NI 96/1357

BEFORE:   BOULTON JR (HEARD IN CAIRNS)

PLACE:     BRISBANE

DATE:       23  AUGUST  1996      

IN THE INDUSTRIAL RELATIONS             )
COURT OF AUSTRALIA  )       No.  NI 96/1357
QUEENSLAND DISTRICT REGISTRY

BETWEEN:                 PASQUALE COOPER

Applicant

AND:  QUICKSILVER DIVING SERVICES PTY LTD

Respondent

BEFORE:           BOULTON JR

PLACE:             BRISBANE (HEARD IN CAIRNS)

DATE:                23  AUGUST  1996

THE COURT ORDERS THAT:

1.The application be allowed.

2.The respondent pay to the applicant the sum of $1815 within 14 days  

of these orders.

NOTE:       Settlement and entry of orders are dealt with in Order 36 of the   Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS             )
COURT OF AUSTRALIA  )       No.  NI 96/1357
QUEENSLAND DISTRICT REGISTRY

BETWEEN:                 PASQUALE COOPER

Applicant

AND:  QUICKSILVER DIVING SERVICES PTY LTD

Respondent

BEFORE:           BOULTON JR

PLACE:             BRISBANE (HEARD IN CAIRNS)

DATE:                23 AUGUST  1996

REASONS FOR JUDGMENT

Background

This application, having been consolidated with NI 96/1358, was tried with it, Mr Kennington, the applicant in NI 96/1358 being the husband of this applicant.  These reasons should be read in conjunction with those in Mr Kennington's judgment.

The applicant, now aged 31, and her son went to Mexico when Mr Kennington set up the diving operation for the respondent there.  The applicant too is a qualified diver.

Issues

Unlike Mr Kennington's case, where the respondent, whose correct title is Gaincrew Pty Ltd ACN 010 571 892, admitted that it employed Mr Kennington at all material times, it denied that this applicant had ever been employed by it.  It is necessary to say something of the relevant corporate arrangements.  In about July 1994, a company known as International Diving Services Limited entered into a joint venture agreement with OPIMSA, a Mexican company, to conduct the Mexican diving operation.  The joint venture partners operated in Mexico by way of a corporation known as Quicksilver Dive de Mexico SA de CV.  The joint venture agreement came to an end about the end of October 1995.  Thereafter, a company known as Quicksilver Dive Mexico Incorporated SA de CV operated the business.

The respondent claimed that Mr Kennington appeared to have hired his wife as an employee of "the Mexican company". 

Findings

What is clear is that, from October 1995, the respondent was paying the applicant's wages (back-dated to about July 1995).  There are documents in evidence showing the respondent as the applicant's employer - pay slips (part of exhibit A2, and exhibit A25) and a 1996 Group Certificate (exhibit A26).

I find that Mr Moors, the financial controller of the respondent, purported to terminate the applicant's employment on 3 or 4 January 1996.  Moors claimed in evidence that part of the winding-up of the Mexican operations involved the paying-out of staff employed by the Mexican company.  He admitted the applicant had not been so paid out, the only reason he could advance being that she would not co-operate.

Despite the explanations advanced by Moors for the respondent having paid the applicant's wages for at least part of her employment in Mexico, I am satisfied that at the material time the applicant was an employee of the respondent.  In making this finding, I have not overlooked the letter dated 3 January 1996 from the managing director of the respondent to the applicant which refers to terminating "your employment with Quicksilver Dive Mexico".

The respondent had a valid reason to terminate the applicant's employment associated with its operational requirements, being the closure of the Mexican operations.  The termination of the applicant's employment was, however, unlawful because of the respondent's failure to give her proper notice once the decision to close down the Mexican operations had been made.  Proper notice in my view should be co-terminus with that her husband ought to have received, namely, four weeks, given that her role in the business in marketing, account keeping and reporting to Australia was complementary to that of her husband.  She too might have assisted in the orderly winding-up of the Mexican operations, had she been given a proper opportunity to do so, by way of working out the notice period.

The applicant agreed that any employment of her by the respondent would cease when the Mexican operation ceased.  She did not expect to return to a position with the respondent in Australia. 

Remedy

The applicant did not seek reinstatement.  I find reinstatement to be impracticable.  The applicant's earnings averaged almost $454 gross per week from 17 July 1995 to 20 December 1995 (exhibit A29). 

I do not consider it appropriate in the circumstances of this case to order the respondent to pay compensation to the applicant (apart from damages for breach of section 170DB of the Industrial Relations Act 1988).  There was no prospect of her taking up employment with the respondent in Australia.  Had she been given proper notice, she would have been faced with the prospect, in any event, of seeking fresh employment (if she chose to work) upon her return to Australia.

I have allowed for relocation costs of the applicant, her husband and child in Mr Kennington's application. 

Miscellaneous

The remarks I made in Mr Kennington's judgment, about alternative remedy, and the date of filing of his application in the Australian Industrial Relations Commission, are equally apposite in this case. 

Orders :

I order that:

1.The application be allowed.

1. The respondent pay to the applicant the sum of $1815 within 14 days of these orders.  

I certify that this and the preceding three (3) pages are a true copy of my Reasons for Judgment.

Judicial Registrar:

Date:  23 August 1996

Appearing for the Applicant:  Mr Newman

Solicitors for the Applicant:  Newman & Associates

Counsel for the Respondent:  Mr Philp

Solicitors for the Respondent:                   Mellick Smith & Assoc

Dates of hearing:  17 and 18 July 1996

Date of judgment:  23 August 1996