The Industrial Magistrate has upheld a claim for untaken paid annual leave and ordinary wages.

The claimant was employed as a pastry chef by the respondent from 25 February 2019 to 15 October 2019, when the claimant was summarily dismissed for serious misconduct.

He argued that the respondent contravened obligations to him created by the Food, Beverage and Tobacco Manufacturing Award 2010 (Cth) and the Fair Work Act 2009 in relation to untaken paid annual leave and ordinary wages for the month of October.

Annual leave

During the course of the hearing, the respondent admitted that it owed the claimant untaken paid annual leave. Industrial Magistrate Scaddan found that the admission was properly made as there was never any basis for the respondent to withhold annual leave upon the termination of the claimant’s employment.

Scaddan IM found that the respondent contravened the FW Act by failing to pay the claimant untaken paid annual leave.

Ordinary wages

The respondent withheld the whole of the claimant’s wages for the month of October because:

• The claimant offered, and the respondent agreed, for the wages to be withheld and, as a result, the respondent would not ‘pursue’ a complaint to the police about the claimant stealing the respondent’s property; and
• In the alternative, cl 18.1(d) of the Award enabled the respondent to deduct one week’s wages in lieu of the claimant’s failure to provide one weeks’ notice of termination.

Her Honour found that the respondent was not entitled to withhold the claimant’s wages for several reasons.

The respondent argued that the claimant did not provide notice of termination, although it said that the claimant had informed them that he had a job offer from Crown. Her Honour found that this merely evinced an intention to work at Crown in the future and did not mean the claimant was leaving the respondent’s employment.

Thereafter, consistent with the claimant continuing to attend work, her Honour found that the respondent summarily terminated the claimant’s employment on 15 October 2019. Ultimately, it was the respondent who terminated the employment and it was not entitled to deduct one week’s wages from the claimant pursuant to cl 18.1(d) of the Award.

Her Honour also noted that the contract of employment expressly required variation of its terms only by written agreement. Her Honour found that, as the agreement to forgo a police complaint in exchange for wages was an oral agreement made over the phone, there were no grounds for the respondent to withhold from the claimant’s wages under the contract.

Industrial Magistrate Scaddan also noted the ‘moral turpitude’ of the employer withholding wages in exchange for not ‘pursuing’ a police complaint about the claimant stealing the employer’s property. Her Honour observed that it is a dangerous course for an employer to attempt to dissuade a current or former employee from pursuing their legitimate legal interests by suggesting a detriment if they do.

The claim was upheld.

The decision can be read here.

Details  Created: 01 October 2020

The Industrial Magistrate has dismissed a claim by a general manager of an electrical company for payment in lieu of notice of termination and further work carried out by the claimant after his employment ceased.

The claimant was employed by the respondent from 2 July 1990 to 21 December 2018. The claimant alleged that the respondent failed to pay him:

1. An amount equivalent of five weeks in lieu of notice and associated superannuation in contravention of s 117 of the Fair Work Act 2009 (Cth); and
2. Wages for work undertaken as a casual employee from January 2019 to May 2019 in contravention of the Minimum Conditions of Employment Act 1993 (WA).

Payment in lieu of notice

The claimant said that the respondent terminated his employment and he was not provided with the requisite statutory notice period prior to his termination or payment in lieu of notice upon his termination. The respondent argued that the claimant resigned from his employment and was paid all of his entitlements.

Industrial Magistrate Scaddan noted that the claimant and respondent had different recollections or perceptions of events surrounding the ending of the claimant’s employment. Scaddan IM found that, on the evidence, the respondent had acquiesced to the claimant’s proposal to finish on 21 December 2018 and paid out his entitlements as requested.

Her Honour found that as she was not satisfied that the respondent terminated the claimant’s employment, it has no obligation to pay an amount in lieu of notice of termination under the FW Act.

Further work

Although the claimant’s final day of work was 21 December 2018, he carried out nine jobs associated with electrical warranty work on behalf of the respondent from January 2019 to May 2019.

The claimant said that he was employed as a casual employee of the respondent to undertake further work for which he is owed $630. The respondent argued that the claimant was an independent contractor and declined to pay the amount until the claimant provides a tax invoice with an ABN.

Her Honour assessed the totality of the relationship between the parties and concluded that the claimant supplied his services to the respondent on an ad hoc basis on a per job rate, rather than serving the respondent in its business.

Her Honour found that, as the claimant was an independent contractor, the respondent had no obligation to pay the claimant for further work under the MCE Act.

The claim was dismissed.

The decision can be read here.