Claimant found to be employee and entitled to unpaid annual leave and payment in lieu of notice of termination
The Industrial Magistrate has upheld, in part, a claim for penalty rates for work performed on the weekend, unpaid annual leave and three weeks’ payment in lieu of notice of termination.
The claimant entered into an oral contract with the respondent to undertake work for him as a real estate sales representative until this arrangement was terminated by the respondent.
The claimant claimed:
- penalty rates for work performed on the weekends at the rates claimed for a ‘Grade 6 Administration Officer’ pursuant to the Clerk (Commercial, Social and Professional Services) Award No. 14 of 1972 (WA) (the Award);
- unpaid annual leave pursuant to the Award, or in the alternative, pursuant to the Minimum Conditions of Employment Act 1993 (WA) (MCE Act); and
- three weeks’ payment in lieu of notice of termination of employment.
The role of the claimant’s employment was in dispute. The claimant claimed that he was in an employee/employer relationship with the respondent. The respondent disputed this and maintained that the claimant was an independent contractor.
Industrial Magistrate Hawkins found, after considering the totality of the relationship, that the claimant was in an employee/employer relationship with the respondent and not an independent contractor.
However, her Honour found that the Award did not apply to the claimant’s employment as the claimant’s role did not wholly or principally require him to carry out the clerical duties outlined in the Award classification relied upon by the claimant or any of the classifications in the Award. Her Honour found, accordingly, that the claimant had no entitlement to claim penalty rates and annual leave pursuant to the Award.
However, Hawkins IM found that the claimant was entitled to annual leave pursuant to s 23 of the MCE Act as he was engaged as a permanent part-time employee and not a casual worker.
Her Honour also found that since there was no written notice given to the claimant of the date of termination of his employment, the claimant was entitled to be paid three weeks’ wages in lieu of notice.
The decision can be read here.