Coxon - V - Mi Leisure Pty Limited [2005] NSWIRComm 1032

Industrial Relations Commission of New South Wales

CITATION: Coxon - V - Mi Leisure Pty Limited [2005] NSWIRComm 1032

APPLICANT Murray John Coxon PARTIES: RESPONDENT Mi Leisure Pty Limited

FILE NUMBER(S): 6353 of 2004

CORAM: Cambridge C

CATCHWORDS: Unfair Dismissal - termination of employment - s.83(3) - engagement as a Trainee - jurisdiction not established - claim dismissed.

Industrial Relations Act 1996 LEGISLATION CITED: Apprenticeship and Training Act 2001

HEARING DATES: 02/15/2005 EXTEMPORE JUDGMENT DATE : 02/15/2005

APPLICANT self represented

LEGAL REPRESENTATIVES: RESPONDENT Mr C Serow, solicitor Borthwick & Butler, Solicitors

DECISION: - 2 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

COMMISSIONER CAMBRIDGE 18 March 2005

Matter No IRC 6353 of 2004

Murray John Coxon - V - Mi Leisure Pty Limited

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

DECISION - EXTEMPORE

[2005] NSWIRComm 1032

1 This Decision is issued as confirmation of the Extempore Decision made in this matter on 15 February 2005, in Armidale. 2 The Commission makes the following Extempore Decision in this matter. This matter involves an application taken under section 84 of the Industrial Relations Act 1996 [NSW], (the Act). The claim for unfair dismissal was filed on 29 October 2004 by Murray John Coxon (the applicant). The respondent employer is MI Leisure Pty Ltd, (the employer).

3 This Decision is made in respect to a discrete issue concerning the Commission's jurisdiction to hear this claim. The applicant was employed as a Trainee within the meaning of the Apprenticeship and Training Act 2001. The engagement of the applicant as a Trainee was an uncontested fact. It should be noted that the hand written Reasons for Application appearing on page 7 of the application document commences with the following words: "Although I was employed as a trainee, I believe I am eligible to make a claim as when my training contract was cancelled on 12.10.04, I became an employee under common law." 4 The cancellation of the applicant's training contract was made by Determination of the Vocational Training Tribunal comprised of Messrs Andrew Mavrakakis, Peter Ody, Paul Hennessy and Jon Williams. The Tribunal's Determination was made in Inverell on 12 October 2004. A copy of the Tribunal's Determination was attached to the Employer's Reply. 5 Section 83(3) of the Act states as follows: "(3)This Part does not apply to the dismissal of any such employee who is in an apprentice or trainee (other than an existing worker trainee) within the meaning of the Apprenticeship and Traineeship Act 2001 , or any such employee who is an executive officer to whom Part 2A of the Public Sector Management Act 1988 , or Part 5 of the Police Service Act 1990 applies." 6 Therefore, on its face, this application could not enliven the jurisdiction of this Commission. The matter was listed for Conciliation proceedings on 30 November 2004 in Armidale. The applicant on that occasion appeared unrepresented, and Mr C Serow, solicitor, appeared for the employer.

7 Unsurprisingly, the proceedings on 30 November included considerable discussion about the operation of section 83(3) of the Act and the prima facie absence of jurisdiction in this instance. However, the applicant advanced a proposition which sought to invoke the Commission's jurisdiction and suggested that verbal advice supporting such a proposition was offered to the applicant by the Deputy Industrial Registrar who was named personally by the applicant. 8 Further, the applicant stated that there was Authority which was said to underpin the proposition that the applicant's claim could proceed. Consequently, the Commission directed that the applicant prepare, file and serve a Stated Case to support the proposition that, notwithstanding section 83(3) of the Act, the Commission possessed jurisdiction to Hear this unfair dismissal claim. The Commission took great care to explain to the applicant who was, of course, an unrepresented litigant, that he needed to provide documentary material, and in particular, Case references to support his proposition. The Commission directed that such a Stated Case be filed and served by no later than 4 pm on 28 January 2005. 9 On 31 January 2005 the Commission was provided with a single page facsimile which was a facsimile made of page 7, Reasons for Application, from the original application document. Additional hand written words have been included on the original page 7 document. The additional words, to the extent that the Commission can discern them, are as follows: "For mention on the 15th of February 2005, the points at the bottom of the page are to support first application, thank you."

At the bottom of the page: "I would like to add to my first application, that the traineeship wasn't appropriate, so therefore this should be dealt with as a normal employment contract. I believe a similar case was dealt with before by Industrial Relations the company's name was Cargill Meatworks in Dubbo." 10 This single page facsimile, in particular the additional words contained therein, appears to represent the applicant's attempt to state his case in respect of the prima facie jurisdictional impediment created by section 83(3) of the Act in this instance. The applicant has today supplemented that material with further oral submissions. 11 The Commission is not persuaded by the material before it to support the applicant's contention that the Commission has jurisdiction to Hear this case. Therefore the application is dismissed for want of jurisdiction and the proceedings are concluded save and except for the question of costs which is reserved on the basis that any application for costs must be made in writing within twenty one days from today, 15 February 2005.

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