Forrester v R & B NSW Pty Ltd t/as Noraville Child Care Centre [2003] NSWIRComm 279 (8 August 2003)

Last Updated: 7 October 2003

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Garth v Newcastle City Spares Pty Ltd [2003] NSWIRComm 245

FILE NUMBER(S): IRC 2416

HEARING DATE(S): 05/08/2003

DECISION DATE: 08/08/2003

PARTIES:

APPLICANT

Gregory John Garth

RESPONDENT

Newcastle City Spares Pty Ltd

JUDGMENT OF: Harrison DP

LEGAL REPRESENTATIVES

APPLICANT

Mr John Wormington, Counsel

RESPONDENT

No appearance

CASES CITED:

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: HARRISON DP

Friday, 8 August 2003

Matter No IRC 2416 of 2003

GREGORY JOHN GARTH AND NEWCASTLE CITY SPARES PTY LTD

Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996.

DECISION

[2003] NSWIRComm 245

1 The application in this matter was filed on 6 May 2003 and subject to Conciliation and Directions proceedings on 21 May 2003.

2 It was established that the matter could not be settled by agreement between the parties and Directions issued to bring the matter to hearing on 5 August 2003.

3 On Hearing Mr J Wormington of Counsel appeared on behalf of the applicant, Mr Gregory Garth. There was no appearance on behalf of the respondent, Newcastle City Spares Pty Ltd. Advice was received by telephone from Mr S Rayfield, solicitor of Rayfield Lawyers informing the Commission that he no longer represented the respondent, but had contacted the respondent on the morning of proceedings, 5 August 2003, who withdrew his instructions and advised him that there was no intention to appear, asserting that the business no longer existed.

4 There is no other communication to the Commission.

5 Mr Wormington pressed the matter to Hearing ex parte by application in those terms. The matter proceeded.

6 Mr Wormington brought evidence from the applicant.

THE EVIDENCE

7 The applicant's evidence is that he was employed by the respondent for fourteen months in the capacity of Manager prior to the termination of his employment by notice on 12 April 2003 to cease employment on 24 April 2003. His evidence is that he had managed the same business for a previous owner from 1993 to 1998 and that from 1998 he was a partner in a firm identified as "Newcastle Auto Dismantlers" operating in the same industry as the respondent.

8 The applicant's evidence discloses that he was a potential purchaser of the respondent business and in that process encountered Mr Brian McKee. The applicant's evidence is that he had paid a $5,000 deposit to purchase the business for $75,000. At the suggestion of Mr McKee he paid $1,800 to register a company known as "Ablefast Pty Ltd" intending it to be the legal entity to complete the purchase. The applicant's evidence is that the following day Mr McKee informed him that he had registered "Newcastle City Spares Pty Ltd" and would buy the business in the name of that company, offering the applicant 20% of the business in consideration of the $5,000 deposit paid. The applicant then commenced an arrangement in which he was a 20% shareholder in the business, the balance of controlling shares held by Mr McKee.

9 The applicant's evidence is that he was then employed by the business as Manager at a wage of $850 per week. The applicant deposed that subsequent to his commencement as Manager Mr McKee proposed a further injection of capital, putting forward several propositions by which the applicant could obtain funding, which he rejected. The applicant's evidence is that some six months after commencement of employment he proposed a salary reduction as an alternative to an injection of capital. The applicant deposed Mr McKee rejected this alternative, asserting that Mr McKee preferred that the applicant maintained earnings which allowed him to borrow money.

10 The applicant's evidence is that he was aware that Mr McKee was offering other employees the opportunity to invest in the business.

11 The applicant deposed that on or about Friday, 11 April 2003 Mr McKee informed him that others had declined to invest in the business and sought a meeting with him on 12 April 2003. The applicant's evidence is that on 12 April 2003 Mr McKee informed him that as a consequence of his decision not to invest further in the business substantial changes would be made and a person identified as Chris Mascord would be the new manager and the applicant was given two week's notice.

12 The applicant's evidence is that he has suffered severe financial hardship as a result of the termination of his employment and has been unable to find alternative employment despite strenuous efforts in response to newspaper advertisements and through the Commonwealth Employment Service.

CONSIDERATION

13 Mr Wormington submitted that the termination of the applicant's employment was harsh, unreasonable and unjust as it arose purely as an act of retribution against the applicant for declining to further invest in the respondent business.

14 The facts are not contested and on the evidence before me I conclude that the termination of the applicant's employment was harsh, unreasonable and unjust.

15 I determine that neither reinstatement nor re-employment are practical and accordingly determine compensation at $20,000 (twenty thousand dollars) having regard to the reasons for termination and the hardship emanating therefrom.

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INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: HARRISON DP

Friday, 8 August 2003

Matter No IRC 2416 of 2003

GREGORY JOHN GARTH AND NEWCASTLE CITY SPARES PTY LTD

Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996.

ORDER

Pursuant to section 89(5) of the Industrial Relations Act 1996 Newcastle City Spares Pty Ltd is ordered to pay Mr Gregory John Garth the amount of $20,000 (twenty thousand dollars) within 21 days of the date of this decision.

I so order.

The Hon. R W Harrison

Deputy President

LAST UPDATED: 02/10/2003