The Industrial Magistrate has upheld a claim for four weeks’ pay in lieu of notice of termination, untaken paid annual leave, ordinary wages and superannuation by a full-time electrical installer, totalling over $16,000.  

The claimant was employed by the respondent as a full-time installer.

The claimant alleged that the respondent failed to comply with the Electrical, Electronic and Communication Contracting Award 2010 and the Fair Work Act 2009 (Cth) by:

• failing to pay him 4 weeks’ pay in lieu of notice of termination of employment;
• using his accrued annual leave entitlements to pay his ordinary wages without approval (and thus failing to pay untaken paid accrued annual leave upon termination of employment);
• failing to pay him all ordinary wages owed; and
• failing to pay an amount of superannuation for the pay in lieu of notice and ordinary wages owed.

The respondent denied the claims.

Pay in lieu of notice of termination of employment

Industrial Magistrate Scaddan found that the respondent did not give the claimant a written notice of termination of employment and failed to pay him 4 weeks’ pay in lieu of notice.

Ordinary wages and annual leave

Her Honour found, on the evidence, that the respondent was not entitled to withhold payment of the claimant’s ordinary wages on the days the claimant ‘offered’ to take leave without pay. This resulted in an underpayment of $2,416.53.

The claimant also argued that from June 2019 until August 2019, the respondent, without his permission, used his accrued annual leave entitlements to pay his ordinary wages when the company was experiencing a downturn in business.

The respondent contended that it had the claimant’s consent to pay out his accrued annual leave entitlements on a weekly basis.

Scaddan IM found that the company was not entitled to pay or cash out the claimant’s accrued annual leave entitlements where any alleged oral agreement between the parties did not, and could not, comply with the Award. Her Honour found that a total of $7,377 in untaken paid annual leave was to be paid to the claimant.

Superannuation

Her Honour also found that $807.60 was required to be paid by the company to a superannuation fund for the benefit of the claimant.

The decision can be read here.