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[2010] NSWIRComm 1038
Industrial Relations Commission (NSW)
1994-05-27
Mr P
Original judgment source is linked above.
The application for acceptance of the out-of-time claim is hereby dismissed.
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.
Wei Fen Xian
Rail Corporation New South Wales
Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139 Griffith Ex-Services Club Ltd v Federated Liquor & Allied Employees' Union of Aust. (NSW Branch) on behalf of Vian (1993) 51 IR 186 Skelly v Prouds Jewellery Pty Ltd (1994) 53 IR 3 CASES CITED: British Building & Engineering Appliances Ltd v Dedman [1973] NIRC 82 Dedman v British Building & Engineering Appliances Ltd [1974] WLR 171 Ian Pinondang Siagian v Sanel Pty Ltd [1994] IRCA 2 (27 May 1994) William John Healey v HPA [2003] NSWIRComm 195 Kent Gorrell v Uwatec Pty Ltd Unreported IRC1700 of 1999, 11 November 1999.
104 That view was enforced in Ian Pinondang Siagian v Sanel Pty Ltd, [1994] IRCA 2 (27 May 1994) Chief Justice Wilcox, then Chief Justice of the Industrial Relations Court of Australia in delivering a judgment on the debate about the effective date of termination for the purposes of whether an application was within time or not within time. Chief Justice Wilcox relevantly stated: After a consideration of various authorities I think these statements are justified by the authorities... It seems to me that in the absence of evidence of a contrary intention, it should usually be inferred that the employer intended the termination to take effect immediately. This conclusion not only reflects the more accurate meaning of the phrase, "in payment in lieu of notice", it accords with common sense. An employer who wishes to terminate an employee's services and is prepared to pay out a period of notice without requiring the employee to work, will surely usually wish to end the relationship immediately. If the employee is not to work, there is no advantage to the employee in keeping the relationship alive during the period for which payment is made and there is the disadvantage that the employer will be burdened with employment related costs such as Workers' Compensation insurance, payroll tax, liability for leave payments, et cetera. The employer also risks that some new burden will be imposed in respect of the employment during the period. [Emphasis added] 105 Mr Ginters submitted that although Siagian involved the letter and the payment being issued simultaneously, one would need to read the reasoning process with the actual language of the dismissal letter received by Ms Xian. I accept that submission.
(1993) 51 IR 186
(1994) 53 IR 3
(2003) 135 IR 145
(1999) 91 IR 258