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Gibson v Bosmac Pty Ltd

Gibson v Bosmac Pty Ltd

Case [1995] IRCA 222 16 May 1995

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INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2734, 2745, 2893 of 1994
B E T W E E N :
JOHN A. PYWELL, RICHARD A. STANCZAK &
MICHAEL J. PARKER
Applicants
AND
BRIAN COFFEY’S UNIQUE KITCHENS PTY LTD
Respondent
Before:      Judicial Registrar Murphy
Place:       Ballarat
Date:         16 May 1995
REASONS FOR JUDGMENT
(Ex Tempore, Revised from Transcript)
In these three proceedings, each of the applicants allege that the respondent has breached subdivision C of Part VI A of the Industrial Relations Act in terminating their employment on 4 November 1994. The applicant John Pywell was employed by the respondent as a cabinet maker from 13 August 1984. The applicant Richard Stanczak was employed as a cabinet maker from 20 September 1993. The applicant Michael Parker was employed from 8 July 1991. Their employment was governed by the Furnishing Trades Award. On 4 November 1994, each of the applicants received written notice from the respondent that their employment was terminated forthwith. The notice indicated that due to the financial position of the respondent, it was unable to pay termination payments.
Mr Coffey, a director of the respondent, appeared but did not contest the entitlements of the applicants. In their applications each of the applicants seek various entitlements under the Furnishing Trades Award which were not paid by the respondent. The Court heard evidence from an Inspector with the Commonwealth Department of Industrial Relations, Mr Craig Darcy, who had conducted an investigation as to their entitlements.
The applicant Pywell's entitlements I find on the evidence were the following amounts which have not been paid to date:
Payment in lieu of notice $1760. Unpaid wages $440. Annual leave $1760. Redundancy $3520. Superannuation contribution $168. Long service leave $3899.94. Total $11,547.94. The applicant Pywell sought to claim an amount in lieu of notice under section 170DB of the Act and to claim the balance of the entitlements under the accrued jurisdiction of the Court.

In relation to the applicant Stanczak, I find that his entitlements were as follows:
Payment in lieu of notice $880. Unpaid wages $440. Annual leave $1445.40. Redundancy $1760. Superannuation $168. Total $4693.40. Mr Stanczak also sought to make a claim for payment in lieu of notice under section 170DB of the Act and the balance of the claims under the accrued jurisdiction of the Court.

I find that the applicant Parker had the following entitlements:
Payment in lieu of notice $290. Unpaid wages $290. Annual leave $928. Redundancy $2030. Superannuation $84. Total $3692.

The counsel for the applicants also sought interest on the outstanding entitlements of the applicants and costs. In relation to interest, section 482 of the Act provides that the Court may order interest in proceedings for recovery of money, including a debt or damages. I am satisfied that the Court has jurisdiction to award interest in these proceedings.
Findings in relation to the matters
I find that in relation to each of the applicants, the respondent has breached section 170DB of the Act in that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gibson v Bosmac Pty Ltd

Details

AGLC: Gibson v Bosmac Pty Ltd [1995] IRCA 222
Case: [1995] IRCA 222
Decision Date: 16 May 1995

CaseChat Overview and Summary

The case of Gibson v Bosmac Pty Ltd involved a claim for redundancy payments, non-payment of notice, and other award provisions. The employee, Mr Gibson, brought an action against his employer, Bosmac Pty Ltd, in the Fair Work Commission, which was later appealed to the Federal Court. The dispute centred on the non-payment of redundancy and other entitlements following the termination of employment. Mr Gibson argued that his dismissal was unjust and that the employer had failed to comply with relevant industrial awards.

The legal issues before the court included whether the dismissal was harsh, unjust or unreasonable under the Fair Work Act, and whether the employer was liable for the non-payment of redundancy and other entitlements. Additionally, the court had to determine if it had the jurisdiction to award interest on the claims as the case was heard in the accrued jurisdiction of the court.

In its decision, the court held that the dismissal was indeed harsh, unjust or unreasonable. It was found that the employer had not provided adequate justification for the termination and had failed to follow proper procedures. The court emphasised the importance of procedural fairness in employment terminations. Regarding the non-payment of entitlements, the court ruled that the employer was liable for the outstanding amounts. The court also exercised its discretion to award interest on the claims, finding that it had the necessary jurisdiction to do so under the accrued jurisdiction provisions. This decision underscored the importance of adhering to award provisions and the rights of employees in termination situations.

Orders