Details 

Created: 15 May 2020

The Industrial Magistrate has upheld, in part, a claim for unpaid entitlements including award wages, annual leave and accrued long service leave by an employee of a financial services provider.

The applicant alleged that the respondent contravened the Fair Work Act 2009 (Cth) and the Clerks – Private Sector Award 2010 (Cth) (the Award) by failing to pay him award wages under the provisions of the Award, annual leave not taken during the course of employment, and accrued long service leave.

In relation to the alleged unpaid award wages, Scaddan IM noted that cl 4.1 of the Award provided that:

‘[t]his award covers employers in the private sector throughout Australia with respect to their employees engaged wholly or principally in clerical work…’

On examination of the relevant material and evidence provided, the Industrial Magistrate found that, while the respondent was an employer in the private sector, the applicant was not engaged in wholly, or even principally, ‘clerical work’. The Industrial Magistrate found that the applicant’s duties and tasks extended to providing financial advice and reports to the company’s clients.

Therefore, the Industrial Magistrate concluded that the Award did not cover the respondent’s employment of the applicant and the applicant was not entitled to any award wages.

However, Scaddan IM upheld the applicant’s claim for untaken accrued annual leave on the basis that the respondent could not and did not produce any employment records, and there was no evidence to suggest that the applicant’s allegation concerning the failure to pay untaken annual leave was not bona fide.

In relation to the applicant’s claim for long service leave payment, the respondent argued that by failing to attend an alternative office to undertake work, the applicant refused to carry out a lawful and reasonable direction by his employer. As such, the applicant had engaged in such ‘serious misconduct’ that it was not required to pay the him his entitlements.

Scaddan IM found that, having regard to all the evidence, the applicant’s employment was not terminated for ‘serious misconduct’, but due to either a shortage of work or because the respondent was restructuring its business. Scaddan IM determined that even if the applicant did not attend work at an alternative office, this, of itself, would not amount to such ‘serious misconduct’ to deny his long service leave entitlements.

Scaddan IM ordered that the respondent pay the applicant accrued unpaid leave amounting to $33,244 and long service leave totalling $6,881. Scaddan IM dismissed the applicant’s claim for award wages.

The decision can be read here.