North-Coombes Pty Ltd v Reece Pty Ltd

[1996] IRCA 174

DECISION NO:  174/96

C A T C H W O R D S

INDUSTRIAL LAW -  TERMINATION OF EMPLOYMENT - whether correct employer.

INDUSTRIAL RELATIONS ACT 1988 Ss 170EA,

Derek Henry NASH -v-  JOHN McKENZIE & ASSOCIATES  -  WI95/2576

BEFORE:       R. D. FARRELL JR
PLACE:          PERTH
DATE:            3 May 1996

IN THE INDUSTRIAL RELATIONS    )
COURT OF AUSTRALIA                   )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )         No. WI 95/2576

BETWEEN:  Derek Henry NASH
  -         Applicant

AND:  JOHN McKENZIE & ASSOCIATES
  -         Respondent

MINUTE OF ORDERS

BEFORE:               R. D. FARRELL JR

PLACE:                  PERTH

DATE:  3 May 1996

THE COURT ORDERS THAT:

1.         The application is dismissed.

NOTE:          Settlement and entry of Orders is dealt with by Order 36 of the   Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY

WI 2576 of 1995

BETWEEN:

Derek Henry NASH
Applicant

AND:

JOHN McKENZIE & ASSOCIATES
Respondent

REASONS FOR DECISION

3 May 1996  R. D. FARRELL JR

1. This is an application for compensation pursuant to Section 170EA of the Industrial Relations Act 1988 arising out of the alleged termination of the employment of the applicant, Mr Derek Henry Nash (“Mr Nash”), by John McKenzie and Associates (“JMA”) who he claims was his employer. Mr Nash also seeks to claim damages for breach of contract in the accrued jurisdiction of the Court, in that it is alleged that his employer failed to give him reasonable notice of his termination.

1. This application was heard with a similar application against Esther Investments Pty Ltd, (“Esther Investments”). These reasons should be read in conjunction with my reasons for decision in that application, wherein I held after consideration of the evidence before me that Mr Nash was employed by Esther Investments.

1. Mr Schapper, who appeared for Mr Nash, submitted that I might find that Mr Nash was employed by both Esther Investments and JMA. There was no evidence that Mr Nash was employed by Esther Investments at some times times and by JMA at other times. I know of no basis upon which I could find that Mr Nash was simultaneously employed by JMA and Esther Investments. There was no evidence of a joint venture or any sort of partnership arrangement between JMA and Esther Investments.

1. I find therefore that Mr Nash was not employed by JMA, and accordingly I will dismiss this application.

   I certify that this and the preceding page
   are a true copy of the reasons for decision of
   Judicial Registrar R.D. Farrell.

   Associate:
   Dated:

   APPEARANCES

   Solicitors for the applicant:                 Derek Schapper

   Counsel appearing for the applicant:  Derek Schapper

   Solicitors for the respondent:              Hotchkin Hanley

   Counsel appearing for the respondent:    Michael Hotchkin   

   Date of Hearing:  12 April 1996