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.