Damevski v Guidice

Industrial Relations Commission (NSW)|2003-09-12|Before: Mr P, Mr J

Background 2 By way of background, the applicant was formerly employed as a relief agent at a TAB agency in Jannali. Ms Salamon formerly operated that agency pursuant to an agreement with TAB dated 17 April 2003.

3 The applicant's employment at the Jannali agency commenced after she had learned informally about a vacancy at the agency and personally approached Ms Salamon about obtaining work. Ms Salamon informed the applicant the pay and conditions for her position would be determined by the NSW TAB Clerical and Administrative Staff Award 2002. Ms Salamon gave the applicant a number of forms to complete, including forms for referral to TAB's head office titled "Agency Staff Record Form" and "Agent's Relief Statement of Competency". Ms Salamon informed the applicant she would start work at the Jannali agency on 8 December 2004, subject to confirmation of final approval by TAB's head office. It appears that such approval was forthcoming.

4 On 8 December 2003, the applicant commenced part-time work as a Relief Agent at the Jannali agency as an employee of Ms Salamon. In connection with that commencement, the applicant was given a TAB staff identification card and a payroll number. The need for the applicant to attend TAB operators' compulsory training was waived when the applicant began working at the Jannali agency, as the applicant had previously undertaken this training. The applicant fulfilled TAB's security training by watching an instructional training CD at the Jannali agency.

5 While working at the Jannali agency, the applicant was regularly advised electronically through the TAB computer system of TAB's instructions concerning security updates and warnings. The applicant was also advised through this computer system of staff policies and procedures, operational updates and related information. In March 2004, an employee of TAB attended the Jannali agency to test staff, including the applicant, on their knowledge of TAB's operational and racing procedures.

6 Around 8-12 March 2004, the applicant was the Relief Agent for the Jannali agency while Ms Salamon was on leave. The applicant did not work on the weekend of 13-14 March 2004. On 16 March 2004, the "coffee man" attended the Jannali agency, to check the customers' coffee machine. As was the regular practice, the applicant accepted a cheque on behalf of Ms Salamon from the coffee man for a percentage of the takings for the machine's usage, and placed it in the safe.

7 Between 13-16 March 2004, Matthew Mather, TAB's Operations Support Manager, visited the Jannali agency to conduct an investigation. Mr Mather told the applicant he needed to look at some records. On 16 March 2004, Mr Mather asked the applicant about a cheque in the safe. The applicant advised that it could be the coffee man's cheque. Mr Mather then made a telephone call before informing the applicant that she was suspended until further notice. Ms Salamon was also suspended from the agency that day and prohibited by TAB from operating the Jannali agency. TAB appointed another person to operate the Jannali agency in Ms Salamon's stead on and from 16 March 2004. That person was, apparently, not an employee of TAB but another agent from within the TAB network who was placed by TAB at the Jannali agency on a temporary basis.

8 On 18 March 2004, the applicant saw a Chamber Magistrate, who advised her that verbal advice concerning suspension was insufficient and she should return to work pending written notification of any suspension. Following this advice, the applicant attended the Jannali agency. Either a Malcolm Hunter or another person opened the agency; the applicant entered the agency. Mr Hunter then made a telephone call. After Mr Hunter completed his telephone call, he advised the applicant she could not stay on the premises and would have to leave. Mr Hunter then escorted the applicant off the premises. Mr Hunter said words to the applicant to the effect that she had been caught up in things because she accepted the cheque, but he expected she would get her job back.

9 When the applicant returned home that day, she received a courier-delivered letter dated 18 March 2004. The letter was from Grant Goldsworthy, TAB's Retail Manager - Agencies. It confirmed the applicant's suspension, relevantly reading: Dear Mrs Steman This letter confirms verbal advice given to you on Tuesday 16 March, 2004 by Operations Support Manager, Matthew Mather that your authorisation to work in the Agency network has been suspended pending an investigation into the large cash under that was discovered at the Jannali Agency. Yours sincerely [signature] GRANT GOLDSWORTHY Retail Manager Agencies

10 As to the matter in the letter, the applicant was surprised to learn from the letter there was a large cash "under" at the Jannali agency, as she had no knowledge of any problems in that respect.

11 On 2 April 2004, TAB again wrote to the applicant advising the applicant her authorisation to work in the TAB agency network would remain suspended until she attended an interview with TAB. That letter read: Dear Ms Steman

I refer to our telephone conversation of yesterday afternoon and confirm my verbal advice that your authorisation to work in the Tab Agency network will remain suspended until you agree to attend a formal interview with Tab.

The purpose of the interview is to clarify statements made by you to Matthew Mather on 16 March 2004, and to discuss your knowledge of events identified by Tab's investigation of the cash shortage of $1,142.95, declared at the Jannali Agency on 14 March 2004.

I encourage you to reconsider your decision not to attend an interview. You are within your rights to have a witness accompany you, though this person can act as an observer only, not as an advocate on your behalf.

I can be contacted on [number] to arrange a suitable time for the interview or answer any questions you may have.

Yours sincerely [signature] GRANT GOLDSWORTHY Retail Manager Agencies

12 As to the matters in this letter, the applicant did not work at the Jannali agency on the weekend of 13-14 March 2004, and states she had no knowledge of any cash shortfalls.

13 The applicant's level of understanding about the legal relationship under the agency agreement between TAB and Ms Salamon was not well-developed. For her own part, the applicant thought Ms Salamon was a franchisee of TAB - which she considered to be the "main company". She considered she had to be "passed" by TAB before she being placed on the payroll. She had also raised the issue of underpaid wages directly with TAB given her understanding that TAB was the "main company".

14 On 14 April 2004, TAB terminated its agency agreement with Ms Salamon.

Ms Salamon 15 The views of Ms Salamon concerning the application were compendiously outlined in her Employer's Reply, which relevantly read: 1. The respondent did not dismiss the applicant.

The respondent was the licensee of a TAB agency at Jannali pursuant to a written agreement ("the Contract") with TAB Limited.

On 16 March 2004 the respondent was suspended from the agency and was prohibited by TAB Limited from operating the agency.

TAB Limited wrote to the applicant on 18 March 2004 suspending the applicant from work at the agency.

TAB Limited again wrote to the applicant on 2 April 2004 stating that the applicant would remain suspended until she agreed to attend a formal interview with TAB Limited.

On 14 April 2004 TAB Limited terminated the Contract.

The notice of motion 16 The application was filed by the applicant personally on 7 May 2004. The standard application form completed by applicant asks a number of questions about the employer. Questions 7-11 of the application form concern the employer's name and employment details. In that respect, the applicant provided the following responses: 7. Employer's name TAB LIMITED: AGENT SAMANTHA SOLOMAN (sic)

Employer's registered office 56-58 Railway Crescent Jannali 2226 ... 10. Contact person for employer Samantha Solomon Mobile [number]

Employer's business or industry TAB OUTLET

Your occupation - name of job or type of work performed for the employer RELIEF AGENT

17 The file name allocated by the Industrial Registry specified "TAB Ltd" as the sole respondent; there was no reference on the file cover to Samantha Salamon. Apparently, Ms Salamon referred the listing details to TAB, but TAB advised Ms Salamon it did not intend participating in the proceedings. On 17 June 2004, when the matter was listed initially for conciliation and directions, the applicant appeared in person. Ms Salamon was represented by Mr P Ginters of counsel. As part of some preliminary housekeeping concerning the file, I endeavoured to ascertain the name of the respondent. Mr Ginters submitted the name of the respondent should be "Samantha Salamon" rather than "TAB Ltd". The name of the respondent was amended accordingly without objection from the applicant albeit, as Mr Ginters submitted at the time, "it is a reasonably complex situation". Although the applicant appeared on her own behalf at the initial listing, when the name of the respondent was amended without objection from "TAB Ltd" to "Samantha Salamon", she has since obtained representation through the NSW Working Women's Centre. It is only since the applicant obtained professional representation that the notice of motion concerning TAB has been filed. The applicant's notice of motion filed on 19 August 2004 seeks that TAB be a respondent to the proceedings. The applicant's short reasons were: 1. Staff members of TAB Limited suspended the Applicant from the agency.

TAB Limited wrote to the applicant on 18 March 2004, suspending the Applicant from work at the Agency.

TAB Limited wrote again to the applicant on 2 April 2004, stating that the Applicant would remain suspended until she agreed to attend a formal interview with TAB Limited.

As a result of the unfair suspension by TAB Limited, the Applicant suffered financial loss by TAB Limited.

18 It is clear from the submissions of counsel for the applicant, Mr M Gibian, that the applicant wishes to proceed against both Ms Salamon and the TAB as first and second respondents, not one or the other exclusively.

Applicant's submissions 19 Mr Gibian submitted TAB should be joined as a respondent as there was uncertainty concerning the applicant's true employer, as both Ms Salamon and TAB assumed employer-type roles; and the Commission may determine that TAB, rather than Ms Salamon, was the true employer. Mr Gibian submitted it is plain that both Ms Salamon and TAB played a role in relation to the applicant's employment and TAB, in particular, took steps which were instrumental in leading to the termination of the applicant's employment. In those circumstances, it is "plainly necessary", for both Ms Salamon and TAB to be respondents to the proceedings. Mr Gibian submitted the Commission might find, for instance, that: a contract of employment was created between the applicant and TAB at the commencement of her employment, with Ms Salamon acting as TAB's agent, i.e., that a contract of employment might have been created between the applicant directly with TAB, with Ms Salamon acting as agent for TAB in employing the applicant; an implied contract of employment developed as a result of the conduct of the parties, particularly the actions of TAB in acting as her employer or appointing a manager of the agency from 16 March 2004; TAB and Ms Salamon were jointly or collectively employers of the applicant, determining and sharing the functions traditionally attributed to an employer: Morgan v Kittochside Nominees Pty Ltd (2000) 117 IR 152; Matthews v Cool or Cosy Pty Ltd [2003] WAIRC 10388; Josie Bianci v Staff Aid Services (unreported, AIRC, Lewin C, PR937820, 12 September 2003).

20 As to jurisdiction, Mr Gibian submitted the power to join TAB was available under provisions such as s170(1) of the Act, and r83(c) and r84(1) of the Industrial Relations Commission Rules 1996, as well as by reference to the Supreme Court Rules (see s89(5) of the Industrial Relations Commission Rules and Pt 8 r8(1)(b) of the Supreme Court Rules). Mr Gibian submitted it is necessary for TAB to be joined as a respondent to the application to permit all issues in the proceedings to be effectively resolved and for the Commission to exercise its functions under Ch 2 Pt 6 of the Act. The joinder would be in the interests of justice so the Commission could determine the true employer for the purposes of the application or make appropriate orders even if TAB were not found to be the employer: Winter Star v Dixon (1994) 55 IR 187. It is plain that TAB was instrumental in taking steps leading to the termination of the applicant's employment. Mr Gibian submitted the role of TAB concerning the applicant was far more than some licensing-type function and that parallels could not usefully be drawn with licensing bodies such as the Roads and Traffic Authority of NSW in relation to truck drivers. It appeared from the evidence that the TAB itself is subject to licensing by the Department of Gaming and Racing, which is why the TAB may wish to have detailed control over employees at agencies. Mr Gibian submitted TAB should be joined as a respondent to the proceedings to ensure the Commission can exercise its statutory functions concerning the application, including the requirement in s86 to conciliate and, should conciliation be unsuccessful, to determine the claim in arbitration.

Ms Salamon's submissions 21 In generally supporting the applicant's notice of motion, Mr Ginters submitted the case had "particular (and peculiar) circumstances". Joinder was jurisdictionally available having regard to the Commission's Rules (r89(5)) and the Rules of the Supreme Court (Pt 8, r8(1)(b)). Joinder also would be appropriate as TAB purported to suspend the applicant's authorisation to work and was instrumental in taking steps leading to the termination of her employment. TAB was, within the meaning of r8(1)(b) of the Supreme Court Rules, "a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon". Mr Ginters submitted also that the nature of the indemnity arrangements as between Ms Salamon and TAB as they concern agency employees are not relevant to the question of joinder before the Commission; the fairness of the indemnity arrangements is a matter which may be determined elsewhere.

TAB's submissions 22 Mr J Murphy of counsel, for TAB, submitted the question of joinder in this matter was "a very significant question to his client", given that it had "operated for years on the basis of engaging by contract agents who then in turn employ staff and deal with staff, as an established industrial relationship". He submitted joinder would have broad ramifications.

23 In opposing the applicant's notice of motion concerning joinder, Mr Murphy adduced evidence from Peter Staunton, General Manger - Marketing and Grant Goldsworthy, Retail Manager - Agencies. Mr Staunton's evidence described the history and present role of the TAB Agent's Association of NSW (the peak body that represents agents as employers in its dealing with TAB) and the form of industrial regulation governing employees at agencies. He also described the three styles of contractual arrangements between TAB and agencies; the current retail agency network was created in about 1998. Mr Staunton's evidence detailed certain terms of the agreement that existed between TAB and Ms Salamon (namely, "Agreement to appoint agent to provide wagering services in non-licensed premises"), particularly as the agreement concerned employee-related matters and the employment of "fit and proper" persons. Importantly, cl4.10 of the agreement provided as follows: (d) Employees or Contractors must be employed or engaged by the Agent and are not employees or contractors of the TAB. The agent is responsible for and must indemnify TAB against every act or omission of the Agent, its Employees and Contractors.

24 Mr Staunton's evidence adverted also to information available to agents on an extranet site and in a manual provided by TAB. Clause 4.9 of the agreement provides that agents must comply with manuals, instructions and directions issued by TAB. Clause 21.9 of the manual details the right TAB has to suspend agents and agents' employees pending audit investigations. The clause in question reads as follows: 21.9 SUSPENSION OF AGENTS AND AGENCY STAFF The TAB may suspend an Agent or Agency staff pending an Audit investigation, for a period not exceeding one calendar month, upon discovery of a major cash shortage or where the TAB has reasonable grounds to suspect: fraud by the Agent or Agency staff;

drunkenness of the Agent or Agency staff at any time during and in relation to any aspect of the operation of the Agency;

failure by the Agent or Agency staff to comply with any of the provisions of the Agency deed; or

where the Agent or Agency staff knowingly conducts or participates in, or permits anyone to conduct or participate in any illegal gambling or betting on or from the premises. Upon suspension, the Agent is to surrender control of the Agency to the TAB or any person that the TAB nominates. This includes all cash office keys.

The TAB will continue to operate the Agency and will account to the Agent for the new fees and commissions to which the Agent would otherwise have been entitled, after taking into account the costs to the TAB of employing any persons to conduct the Agency in lieu of the Agent.

If a large cash shortage results in the suspension of a person pending an Audit investigation, the person will be asked to repay the shortage immediately.

All persons involved will be requested to submit a report to the Group General Manager, Projects, Sales and Marketing.

The TAB may also suspend an Agents Deed where the whole or part of the premises have been destroyed ...

25 The manual sets out procedures concerning a range of other related topics such as investigation and interview procedures (cl21.10), termination of agents and agency staff (cl21.11), termination/resignation - staff records (cl21.12) and re-employment of terminated persons (cl21.13).

26 Mr Goldsworthy's evidence further described his understanding of the contractual arrangements related to TAB and its agents, including matters such as arrangements with the Australian Taxation Office. His evidence addressed the means by which agents directly recruit agency staff and the way the local recruitment then dovetails with TAB's overall requirements and procedures concerning agency employees. Mr Goldsworthy's evidence also recounted a conversation he had with the applicant concerning outstanding wages in which he indicated any such matters would need to be raised with Ms Salamon.

27 Mr Murphy submitted there is no jurisdiction empowering the Commission to make an order under s89 of the Act in favour of a dismissed employee against any party other than the former employer. In this case, there was no contract of employment between the applicant and TAB. Hence, the Commission has no power to make orders in favour of the applicant against any party other than Ms Salamon. None of the elements typically examined to determine an employment relationship, he submitted, existed in the relationship between the applicant and TAB. At all relevant times, Mr Murphy submitted, the applicant was employed by, directed in her work by, and paid by Ms Salamon. Given the lack of jurisdiction to make orders concerning TAB, there would be no utility in joining it as a respondent. To do so would constitute the continuation of proceedings against TAB which, within the meaning of s181(2)(b) of the Act, had been instituted without reasonable cause. Even if the Commission made an order against TAB, the agency agreement's indemnity provisions in favour of TAB would have the practical result of being an order against Ms Salamon.

28 Mr Murphy submitted that Mr Ginters had effectively accepted at the initial listing that his client was relevantly the employer for the purposes of being a respondent to the application. Mr Murphy submitted that reliance on the Supreme Court Rules concerning joinder was misplaced, as the ultimate issue is whether the Commission should make orders pursuant to s89 of the Act in favour of the applicant against Ms Salamon, her former employer. No orders may be made in the proceedings that could affect TAB, as it was not the applicant's employer.

29 Mr Murphy disputed Mr Gibian's submission there was uncertainty as to the identity of the true employer and submitted, having regard to the tests of employment, there was no proper basis to contend the employer was anyone other than Ms Salamon. TAB's involvement was confined to providing training, operational instructions and knowledge testing as well as the right to withdraw authorisation to work, but none of these factors could sustain a proposition there was an employment relationship between the applicant and TAB. Mr Gibian's submissions had referred to cases such as Lupuleasa v Tjapiya Security Pty Ltd [1999] NSWIRComm 466; McConnell-Embriotis v Eurobanks Pty Ltd [2004] NSWIRComm 1035; McCormack v O'Connor [1998] NSWIRComm 273; SDA v SmithKline Beecham (Australia) [2002] NSWIRComm 1025; and Nguyen v A-N-T Contract Packers Pty Ltd (trading as A-N-T Personnel) [2003] NSWIRComm 1006; (2003) 128 IR 241. Mr Murphy submitted that none of the cases relied on by Mr Gibian in relation to joint or collective employment was relevant to the circumstances of this application. No analogies could be drawn with labour hire employers. TAB's only connection with the applicant was that TAB reserved the right to authorise persons to work in TAB agencies (or withdraw authorisation), as a corollary of licensing requirements.

30 Mr Murphy challenged Mr Gibian's contentions that Ms Salamon was acting as an agent of TAB, or was exercising ostensible authority on behalf of TAB, in relation to the employment of the applicant. He submitted there was simply no evidence to support that proposition. In submitting it was "unarguable" to suggest Ms Salamon had any authority to engage the applicant as an employee of TAB either by the application of principles associated with agency or ostensible authority, or otherwise, Mr Murphy drew attention to clauses of the agency agreement that addressed the engagement of agency staff and the indemnity provisions. He adverted also to the evidence concerning the subjective understanding of the applicant and others concerning the arrangements between TAB, its agents and employees. There was nothing before the Commission to suggest TAB held out to the applicant that Ms Salamon had ostensible authority to engage her as an employee of TAB, nor anything to suggest that Ms Salamon purported to so act. Similarly, there was nothing before the Commission upon which it could be concluded an implied contract arose, given the absence of evidence to support the formation of any such intention (cf Damevski v Guidice [2003] FCAFC 252; 202 ALR 494). When TAB suspended the applicant, that action was taken in the context of its statute-related responsibility to ensure that people who work in the TAB network are of good character and the like. The suspension would be analogous to a plumber contractor working at Garden Island having a defence clearance withdrawn, resulting in the termination of employment of the contractor's employees.

31 Mr Murphy submitted the applicant's circumstances involved only a temporary suspension of the ability to work in the TAB network, not a termination of her employment with Ms Salamon at the Jannali agency; it became a termination only because the applicant declined to be interviewed by TAB. Ms Salamon's agency was terminated and, as a result, the applicant's employment with Ms Salamon terminated. There is no reasonable cause for the applicant to pursue unfair dismissal proceedings against TAB and joinder would be a futility.

Consideration 32 It is not necessary, at this stage, to determine whether TAB should be regarded as having effectively employed or exercised the role of the employer in any dismissal of the applicant. Nor is it necessary to determine, at this stage, whether Ms Salamon or TAB harshly, unreasonably or unjustly dismissed the applicant and, if so, whether any relief by way of orders should be made in the applicant's favour.

33 In concluding TAB should be joined as a respondent to the proceedings, I have given particular consideration to the submissions as to the need to attempt to effectively conciliate this matter. Section 86 of the Act requires the Commission to "endeavour, by all means its considers proper and necessary, to settle the applicant's claim by conciliation". The submissions indicated that TAB had declined to participate in the proceedings when, in the early stages, the papers were referred to that organisation. As things stand, the applicant has lost her job at the Jannali agency and, given the suspension of her authorisation to work in the TAB network, presently cannot work at that agency - or, it seems, any agency operated by TAB. That is, there was no evidence before the Commission to indicate TAB has restored the applicant's authorisation to work. If the matter were to be conciliated with a view to returning the applicant to work, one presumes there would be a collateral necessity that TAB be involved to review its suspension of the applicant's authorisation to work in the network.

34 The evidence adduced in relation to the notice of motion discloses that TAB was the sole or principal decision-maker in relation the events surrounding the applicant's cessation of work at the Jannali agency. As Mr Gibian submitted, TAB "clearly played an instrumental role in the applicant's employment and particularly the events that have led it to come to an end". Mr Gibian further submitted that TAB clearly retained a significant degree of control over the applicant's employment by determining whether she could be employed in the first place; by its requirements concerning matters such as training, testing, and adherence to policy directives; by its suspension of the applicant's authorisation to work; by its right to investigate and take disciplinary action; and by exercising the ultimate control in determining whether the applicant would be permitted to continue in her employment the Jannali agency. Mr Gibian submitted that agency seemed, on the authorities, to be the "best fit" for the relationship between the parties, but he did not discount the possibility of joint employment. Without the benefit of more fully-developed evidence, it is difficult at this stage to formulate a concluded view about the nature of the arrangements as between the parties and whether a dismissal was involved. It would, in any event, be premature to purport to determine what may involve a mixed question of fact and law on the basis of what has been adduced in these interlocutory proceedings concerning joinder. As the cases referred to by Mr Gibian suggested, nonetheless, different or expanding characterisations may be needed to deal with atypical relationships. For instance, in Cool or Cosy West Australian Commission said this: I observe that the facts may ground an inference of an implied contract of service, even though the parties thereto may not be conscious of what they may have done so that the law will spell out a contract from their dealings (see Swift Placements Pty Ltd v WorkCover Authority of New South Wales (Inspector May) (2000) 96 IR at 84, citing Mead v New England Seed Traders Pty Ltd [1972] WCR 113 at 117). This situation was, it should be understood, not a traditional employment situation but was a contemporary situation now not uncommonly encountered in the business world so that new and evolving techniques require the law to continually evaluate its approach to the characterisation of relationships and the rights and obligations that may flow from them.

35 Similarly, dismissal may have a broad meaning. For instance, in Smith v Director-General of School Education (1993) 51 IR 204 at (219), the Commission noted: It is to the ordinary meaning of "dismiss" that assistance may be obtained; the Oxford English Dictionary , 2nd ed (1989) defines the word in appropriate respects as follows: "2. a ... To send away (a person); to give permission to go; to bid depart.

a ... To send away or remove from office, employment or position; to discharge, discard, expel.

To deprive of disappoint of or from some advantage." We apprehend no real issue may be taken with the ordinary meaning of the word 'dismissal' as so applied to s245 [of the Industrial Relations Act 1991 (NSW)], and, indeed, it seems to us that it is in that defined sense of an employee being sent away from employment that unfair dismissal cases in industrial jurisprudence have been concerned. The terms of s245 of the Industrial Relations Act would suggest no latent limitation in that respect. Therefore, we find no difficulty in accepting the ordinary meaning of "dismissal" suggested by Brereton J in Ex Parte Wurth; Re Tully ((1954) 55 SR (NSW) 47) as being 'the termination of services by the employer without the employee's consent'; we would add that where an employee does not freely consent to the termination, understood in a broad sense, then the circumstances may still amount to a dismissal by the employer as a constructive dismissal: see Willis v Director General of Education ([1977] 1 NSWLR 134 at 136, 137); Ex parte Wurth (at 59, 60), Re Michaelis Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers Guild Re Dismissal ([1979] AR (NSW) 392 at 393); and Western Excavating (ECC) Ltd v Sharp ([1978] ICR 221 at 225, 226).

36 As noted earlier, TAB was the sole or principal decision-maker in relation the events surrounding the applicant's cessation of work at the Jannali agency. Looked at another way, Ms Salomon had no involvement whatsoever in the decision-making leading to TAB's suspension of the applicant's authorisation to work and her loss of employment. In this respect, it seems from a reading of the agency arrangements between TAB and Ms Salamon that Ms Salamon neither had nor purported to exercise any authority in relation to the employees of the Jannali agency consequent upon her own suspension by TAB. Moreover, the evidence indicated it was employees or agents of TAB who, without any recourse to Ms Salamon, informed the applicant she was not permitted to work. Ms Salamon had no authority to veto that decision by TAB concerning the applicant.

37 Mr Staunton's evidence referred to cl21.9 of the TAB manual that, by virtue of the agency agreement, bound the contractual arrangements between TAB and Ms Salamon. Clause 21.9 may arise for consideration in any conciliation or arbitration given the circumstances concerning the applicant. It relevantly reads: The TAB may suspend an Agent or Agency staff pending an Audit investigation, for a period not exceeding one calendar month, upon discovery of a major cash shortage ... Upon suspension, the Agent is to surrender control of the Agency to the TAB or any person that the TAB nominates. The TAB will continue to operate the Agency and will account to the Agent for the new fees and commissions to which the Agent would otherwise have been entitled, after taking into account the costs to the TAB of employing any persons to conduct the Agency in lieu of the Agent. (My italics)

38 Mr Ginters submitted it may be the case that, after Ms Salamon was suspended, a direct relationship between the applicant and TAB could be inferred from the conduct of TAB in taking over the operation of the agency. The effect of this clause in the context of this case and its relevance, if any, to the issues to be determined are unclear at this stage. I consider, however, the clause may need to be the subject of further submissions as to who was, under the terms of the contractual arrangements, controlling the Jannali agency and giving directions to employees and agents consequent upon the suspension of Ms Salomon.

39 Irrespective of the effect of this clause of the agency agreement, what is clear, however, is that it was Mr Mather, an employee of the TAB, who first suspended the applicant. Mr Goldsworthy, another TAB employee, then confirmed in writing that the applicant was suspended not only from the Jannali agency but had no authorisation to work anywhere in the TAB network unless she complied with certain requirements. It was an agent who had been put into the Jannali agency by TAB as an interim manager who escorted the applicant off the agency premises when she presented for work. Mr Murphy submitted the applicant was suspended by Mr Mather but she remained an employee of Ms Salamon and never became an employee of anyone else. Putting to one side the underpinning legal or contractual rights or wrongs of what occurred, it was these persons who, in practical terms, deprived the applicant of the ability to work at the agency. It may or may not be the case that the circumstances amounted to a dismissal within the meaning of Ch 2 Pt 6 of the Act, particularly given statute-related licensing and operational requirements. I have also raised with the parties the possibility of whether there may have been a frustration of the contract of employment between Ms Salamon and the applicant, rather than a dismissal by either Ms Salamon or TAB. Again, these are issues which may need to be further considered if conciliation is unsuccessful and the matter proceeds to arbitration. 40 Despite Mr Murphy's submission that the notice of motion should be dismissed, I have been satisfied it would be appropriate to join (or, on another view, to reinstate) TAB as respondent to the application.

Conclusion 41 TAB Limited is joined as second respondent to the proceedings. The matter will now be adjourned to a date for conciliation.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Industrial Relations Act 1991(NSW)

SECOND RESPONDENT TAB Limited FILE NUMBER: IRC 2723 of 2004 CORAM: McKenna C CATCHWORDS: Notice of motion to join TAB Limited as second respondent - termination of employment - s84, s86 of Industrial Relations Act 1996 - necessity to conciliate effectively - questions of agency, joint employment, effective employer considered but unnecessary to determine at this stage - TAB Limited joined as second respondent - matter adjourned for further conciliation LEGISLATION CITED: Industrial Relations Act 1991 Industrial Relations Act 1996 Damevski v Guidice [2003] FCAFC 252, 202 ALR 494 Ex Parte Wurth: Re Tully (1954) 55 SR (NSW) 47 Josie Bianci v Staff Aid Services (unreported, AIRC, Lewin C, PR937820, 12 September 2003) Lupuleasa v Tjapiya Security Pty Ltd [1999] NSWIRComm 466 Matthews v Cool or Cosy Pty Ltd [2003] WAIRC 10388 McConnell-Embriotis v Eurobanks Pty Ltd [2004] NSWIRComm 1035 McCormack v O'Connor [1998] NSWIRComm 273 Mead v New England Seed Traders Pty Ltd [1972] WCR 113 CASES CITED: Michaelis Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers Guild Re Dismissal [1979] AR (NSW) 392 Morgan v Kittochside Nominees Pty Ltd (2000) 117 IR 152 Nguyen v A-N-T Contract Packers Pty Ltd (trading as A-N-T Personnel) [2003] NSWIRComm 1006, (2003) 128 IR 241 SDA v SmithKline Beecham (Australia) [2002] NSWIRComm 1025 Smith v Director-General of School Education (1993) 51 IR 204 Swift Placements Pty Ltd v WorkCover Authority of New South Wales (Inspector May) (2000) 96 IR 84 Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 Willis v Director General of Education [1977] 1 NSWLR 134 Winter Star v Dixon (1994) 55 IR 187 HEARING DATES: 11/16/2004; 10/27/2004; 08/26/2004; 08/20/2004; 07/29/2004; 06/17/2004 DECISION DATE: 12/10/2004

[1999] NSWIRComm 466

[2004] NSWIRComm 1035

[1998] NSWIRComm 273

[2003] NSWIRComm 1006

[2002] NSWIRComm 1025

At a glance

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Cases Cited (11)

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