Peter Barter and CRA Limited

[1994] IRCA 26

IN THE INDUSTRIAL RELATIONS             
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  Matter No VI 722 of 1994

B E T W E E N:  PETER BARTER
AND:  CRA LIMITED

COURT:             J.A. RYAN, Judicial Registrar

PLACE  MELBOURNE
DATE:  8 AUGUST 1994

The respondent filed a Notice of Motion for an order to strike out an application for remedy made under Section 170EA.

The respondent relied on what was described as a notice of termination on 14 April 1994 and alleged the application was out of time.

The respondent also contended that the applicant had incorrectly named CRA Limited as employer. The respondent claimed the employer was CRA Services Limited and that the respondent was not in law or in fact the employer.

(EX TEMPORE JUDGMENT - REVISED FROM TRANSCRIPT)

THE J.REGISTRAR: Well, over the luncheon adjournment I have had the opportunity to read exhibit PB1 to the affidavit of the applicant sworn on 5 August and handed up to the court this morning. Exhibit PB1 is a letter dated 14 April 1994 from either I.J. or J.J. Craig, Managing Director of CRA Finance and it is on the letterhead of CRA Finance Limited. That letter encloses what are described as the final details of:

"Your retrenchment package that will be provided to you by CRA ".

The letter is addressed to the applicant The letter, I am not going to quote it all, goes on in the third paragraph as follows:

"On the basis of a total reassessment of the human resource capability and work undertaken by CRA Finance - you were advised it was unlikely that there will be work for you in CRA Finance (my emphasis) - beyond the end of May 1994"

The letter continues:

"You are therefore advised that you might be retrenched at that time". At the bottom of the first page the letter continues:

"I have searched for some time and have been unable to find work outside of CRA Finance and in Melbourne".     

1

The letter continues in the first paragraph on page two:

"Following the completion of the Gladstone Power Station Project financing on 30 March this year and because of other staff moves that are envisaged in CRA Finance, we have been unable to structure a special position for you".

And further down on page 2 the letter continues:

"This letter finally records the matters previously discussed with you concerning termination of your service with CRA ".

And on the final page, page four of the letter, the letter refers to:

"Transition from CRA to new employment". The letter finally concludes thanking the applicant for his contribution to CRA:

I have concluded that the letter is written notice of termination by CRA Finance Limited on behalf of CRA Finance Limited purportedly as employer. I find that in the circumstances of the case - this particular case - it is not adequate written notice of termination within the terms of section 170EA. Had the letter stated that it was written notice on behalf of CRA Services as employer I might have accepted it as adequate written notice if I was able to be satisfied that CRA Services is the employer. In fact, that letter may be adequate written notice of termination if CRA Finance is the employer. But at this stage, neither the respondent nor the applicant have satisfied me precisely who is the employer - CRA Limited, CRA Services, CRA Finance or possibly some other associated company. At present, I have concluded that there may still be no written notice of termination by the employer, whoever the employer may be. CRA Limited is named in the initial application as employer and may be the employer.

I will hear from the parties before I go any further but I am proposing, on the basis of what I have read over the luncheon adjournment, to dismiss the notice of motion. And I would add that if adequate notice of termination,.- pursuant to section 170EA(3) had been demonstrated to my satisfaction, I would have certainly, at the very least, have entertained an application for time to be abridged and I would have entertained an application for amendment of the original application to correctly identify the employer in the event that it was demonstrated to my satisfaction that the employer is not and was not the employer named in the application as it presently stands. But given the conclusions I have reached in relation to the nature of the letter, Exhibit PB1, and having concluded that in this case that letter does not constitute adequate written notice of termination within what I perceive to be the requirements of section 170EA(3) I am minded to dismiss the notice of motion.

RECORDED: NOT TRANSCRIBED

THE J.REGISTRAR: Well, I am about to dismiss the notice of motion but I would like to get this matter set down for hearing. I would also be perfectly happy to hear from the parties in the event that there are any other directions sought by consent.                   

And I would be minded, having referred the matter for conciliation, to. give a date for a further directions hearing now in the hope that it will be hack from conciliation and that further directions can be given, including a date for trial, should that be necessary.

Orders

1. The Motion to strike out is dismissed

1. the application is referred to the Australian Industrial Relations Commission for
   conciliation in accordance with the Act.

   
                  

.(3) the directions hearing is adjourned to 9.30 am on Monday 17 October.

I certify that this and the preceding two(2) page(s) are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.

Date  :              

6 September 1994
Appearances:
Counsel for the Applicant                :              Ms. L. Gyfteas
Solicitor for the Applicant                :              Alpass and Associates
Counsel for the Respondent            :              Michael Wheelahan
Solicitor for the Respondent            :              Arthur Robinson & Hedderwicks
Date of Hearing  :              8 August 1994

Judgment  :              8 August 1994