The Industrial Magistrate has dismissed a claim for payment of two weeks’ wages in lieu of notice on the basis that the claimant had resigned from his employment and that the respondent, his employer, was entitled to withhold the payment.

Allegations

The claimant, a machine operator, claimed that the respondent contravened the Fair Work Act 2009 (Cth) (FW Act) and the Timber Industry Award 2010 (Cth) (Award) by failing to pay him his entitlement of two weeks’ wages in lieu of notice, totalling $1,672, at the end of his employment.

The claimant alleged that the employment relationship ended when he was dismissed by the respondent’s managing director on 1 July 2020.

The respondent maintained that the claimant’s conduct on 30 June 2020 was problematic and that he was verbally abusive and threatening in the workplace. It argued that, when confronted about this behaviour, the claimant resigned from employment and walked off the job before his finishing time.

The respondent also alleged that as the claimant resigned without giving notice, it was entitled, pursuant to cl 14.2 of the Award and s 324(1)(c) of the FW Act, to withhold an amount not exceeding the amount he would have been paid in respect to the period of notice required to serve out his notice.

The claimant argued that even if he did resign, the respondent was precluded from deducting any amounts from his final entitlement and relied on s 326 of the FW Act. He submitted that cl 14.2 of the Award is unlawful, as it permits a deduction ‘directly or indirectly for the benefit’ of the respondent and that such deduction was ‘unreasonable in the circumstances’.

Findings

Industrial Magistrate Hawkins noted that there was a great divergence between the parties as to what occurred and the sequence of events. Her Honour found that she did not consider the claimant to be a reliable witness and that virtually all matters in dispute were in direct conflict with the evidence of the respondent’s witnesses. Her Honour found that she preferred the evidence of the respondent’s witnesses.

Hawkins IM found that, on the evidence, the claimant’s resignation was verbally expressed in clear and unambiguous terms to the respondent on 30 June 2020. Her Honour found that she was satisfied that the claimant, having resigned without giving notice, was not entitled to payment of two weeks’ wages in lieu of notice.

Hawkins IM also found that the respondent had the right to withhold an amount equivalent to two weeks’ wages, as the claimant resigned without giving notice. Her Honour noted that the claimant pointed to no authority where similar provisions to cl 14.2 of the Award have been found unlawful, pursuant to s 326 of the FW Act. Her Honour noted that s 324 of the FW Act clearly allows for permitted deductions under an Award if an employee fails to give the required notice.

Hawkins IM determined that she was not satisfied that when the text, context, and purpose of s 326 of the FW Act is considered, that it applies to cl 14.2 of the Award. Her Honour found that even if she had been so satisfied, she did not consider the deduction was unreasonable in the circumstances.

Her Honour was satisfied that the respondent was permitted, pursuant to cl 14.2 of the Award, to deduct $1,672 from the claimant’s final entitlements.

The claim for payment in lieu of notice was dismissed.

The decision can be read here.