Details  Created: 16 July 2020

The Industrial Magistrate has upheld, in part, a claim for an annualised salary, outstanding time worked in lieu, and public holiday payments.

The claimant was employed as a chef by the respondent from 10 July 2017 to 25 January 2018.

He argued that the respondent contravened obligations to him created by the Restaurant Industry Award 2010 (Cth) (Award) and the Fair Work Act (FW Act) in relation to:

• an annualised salary, and $79.71 in annual salary;
• the equivalent amount for time worked in lieu (TOIL) in excess of the contracted number of hours, and $5,222 in remaining balance for TOIL; and
• public holiday payments on certain public holidays where annual leave was not credited, and $1,131.06 in such payments.

The respondent denied the claim and said that the claimant had been paid all his entitlements. Further, the respondent contended that the claimant erroneously applied the terms of the Award, and instead provided its own calculations of amounts paid to the claimant.

Annualised salary

Scaddan IM found that the proper construction of an employee’s equivalent Award salary where they work less than a year is by reference to the time period actually worked, and not by reference to weekly averages for what might have been worked for a full year.

Her Honour found that had the claimant been paid in accordance with the Award obligations, he would have actually been paid less than the amount he was in fact paid for the same period worked.

Her Honour dismissed the claim for alleged deficiency in annualised salary.

TOIL

Scaddan IM considered the two differing spreadsheets presented by the parties of time worked for the purposes of calculating TOIL.

Her Honour found the respondent’s system of time recording and accounting systems more reliable than the claimant’s individual system of recording his time after work.

Having regard to the respondent’s spreadsheet of time worked and TOIL owed, her Honour determined that the amount owed to the claimant with respect to unpaid TOIL was $328.11, and not $5,222 as the claimant had contended.

Public holiday payments

Scaddan IM considered the interpretation of relevant clauses of the Award in relation to public holiday payments.

Her Honour found that where the claimant was rostered to work on a public holiday, he was entitled to either a day off or a day added to his annual leave entitlement. Scaddan IM found that the respondent failed to credit the claimant with additional annual leave for work performed on 25 September 2017 and 1 January 2018 in compliance with the Award, totalling $452.38.

Scaddan IM also dismissed the respondent’s submission that the amounts owing to the claimant could be ‘set-off’ against any alleged ‘overpayment’ of wages paid pursuant to the employment contract.

An order was issued that the respondent pay $780.49 to the claimant for outstanding TOIL and two days’ additional annual leave.

The decision can be read here.