The Industrial Magistrate has upheld a claim for untaken paid annual leave and ordinary wages.

The claimant was employed as a pastry chef by the respondent from 25 February 2019 to 15 October 2019, when the claimant was summarily dismissed for serious misconduct.

He argued that the respondent contravened obligations to him created by the Food, Beverage and Tobacco Manufacturing Award 2010 (Cth) and the Fair Work Act 2009 in relation to untaken paid annual leave and ordinary wages for the month of October.

Annual leave

During the course of the hearing, the respondent admitted that it owed the claimant untaken paid annual leave. Industrial Magistrate Scaddan found that the admission was properly made as there was never any basis for the respondent to withhold annual leave upon the termination of the claimant’s employment.

Scaddan IM found that the respondent contravened the FW Act by failing to pay the claimant untaken paid annual leave.

Ordinary wages

The respondent withheld the whole of the claimant’s wages for the month of October because:

• The claimant offered, and the respondent agreed, for the wages to be withheld and, as a result, the respondent would not ‘pursue’ a complaint to the police about the claimant stealing the respondent’s property; and
• In the alternative, cl 18.1(d) of the Award enabled the respondent to deduct one week’s wages in lieu of the claimant’s failure to provide one weeks’ notice of termination.

Her Honour found that the respondent was not entitled to withhold the claimant’s wages for several reasons.

The respondent argued that the claimant did not provide notice of termination, although it said that the claimant had informed them that he had a job offer from Crown. Her Honour found that this merely evinced an intention to work at Crown in the future and did not mean the claimant was leaving the respondent’s employment.

Thereafter, consistent with the claimant continuing to attend work, her Honour found that the respondent summarily terminated the claimant’s employment on 15 October 2019. Ultimately, it was the respondent who terminated the employment and it was not entitled to deduct one week’s wages from the claimant pursuant to cl 18.1(d) of the Award.

Her Honour also noted that the contract of employment expressly required variation of its terms only by written agreement. Her Honour found that, as the agreement to forgo a police complaint in exchange for wages was an oral agreement made over the phone, there were no grounds for the respondent to withhold from the claimant’s wages under the contract.

Industrial Magistrate Scaddan also noted the ‘moral turpitude’ of the employer withholding wages in exchange for not ‘pursuing’ a police complaint about the claimant stealing the employer’s property. Her Honour observed that it is a dangerous course for an employer to attempt to dissuade a current or former employee from pursuing their legitimate legal interests by suggesting a detriment if they do.

The claim was upheld.

The decision can be read here.

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.

Details  Created: 22 September 2020

The Full Bench has unanimously dismissed an appeal against a decision of the Industrial Magistrate’s Court exercising jurisdiction under the Fair Work Act 2009 (Cth). It found that it had no power to review a decision of the IMC exercising federal jurisdiction.

Facts

The matter before the industrial magistrate was a claim relating to entitlements said to arise under the FW Act and an award made under that Act, the Hospitality Industry General Award 2010.

The appeal was filed on 29 July 2020, along with an application for an extension of time until 28 October 2020 to file an appeal book. The reason given for the application to extend time was that the appellant was self-represented, and its director, who had carriage of the matters, was not available under mid-October 2020 because he was sailing in the Kimberleys.

On 14 August 2020, the Full Bench directed the appellant to file written submissions by 28 August 2020 about whether the Full Bench has jurisdiction to hear the appeal, to which an extension was also requested.

On 4 September 2020, the Full Bench granted the appellant an extension to 18 September 2020. The Full Bench noted that should the appellant fail to respond by that time, the Full Bench would proceed to consider whether the appeal is within jurisdiction based on the material currently before it.

By 18 September 2020, there had been no response received from the appellant.

Consideration and Conclusion

The Full Bench found that it does not have jurisdiction to deal with the matter as the appropriate jurisdiction for an appeal against the IMC in dealing with the matter under the FW Act lies to the Federal Court, not the Commission.

The Full Bench also found that the appellant had reasonable opportunity to make a submission, and that his unavailability was not sufficient to warrant the matter being delayed further.

The appeal was dismissed.

The decision can be read here.

17 September 2020

The Public Service Appeal Board has upheld an appeal against the decision of the WA Country Health Service to dismiss a security officer who was convicted of assault occasioning bodily harm on the basis that the dismissal was harsh, unfair, and disproportionate.

The appellant worked as a full-time security officer with the Health Service for ten years. In July 2019, he was convicted of assault occasioning bodily harm in relation to an incident between him and a member of his extended family.

Section 150(3) of the Health Services Act 2016 (WA) provides that “... if an employee is convicted or found guilty of a serious offence, the employing authority may take such disciplinary action or improvement action… as the employing authority considers appropriate.”

In reliance on that provision, the Chief Executive wrote to the appellant and informed him that the Health Service had decided to take disciplinary action by way of dismissal.

The appellant argued that his dismissal was harsh because it was disproportionate to the misconduct in question, having regard to the circumstances of the offence.

The respondent contended that because of the nature of the appellant’s conduct, and because the position he held required him to provide security for patients, visitors and other staff, the decision to dismiss the appellant was appropriate.

The Board found that the appellant’s conviction arose in unique circumstances and was the culmination of provocation in the context of long-running, complex, cultural family tension and the stress of his wife’s recent illness. The Board also considered the appellant’s positive character references, unblemished work history and his acknowledgement of the seriousness of the matter. It found that he does not represent a threat to patient, staff, or visitor safety.

The Board determined that, on the evidence, the decision to dismiss was harsh, unfair, and disproportionate, that a warning and improvement action in the form of training was an appropriate penalty, and ordered that the appellant be reinstated without loss and with continuity of employment benefits.

The decision can be read here.

Details  Created: 17 September 2020

The Industrial Magistrate has upheld a claim by a manager of a post office for untaken paid annual leave, but dismissed his claim for unpaid wages for his last week of employment on the basis that the Industrial Magistrate’s Court does not have jurisdiction to make such an order under the Fair Work Act 2009 (Cth) where the obligation to pay is contained in the contract of employment.

The claimant was employed as a permanent part-time manager of the respondent’s post office until his employment ceased on 29 October 2019. The claimant alleged that the respondent contravened the FW Act in failing to pay him:

1. Ordinary wages in full for work performed from 21 to 29 October 2019; and
2. Untaken paid annual leave following the termination of his employment.

Unpaid wages

The respondent agreed that the claimant was not paid for the hours worked between 21 to 29 October 2019. It argued, however, that it was entitled to withhold payment for the time worked because the claimant suddenly left his employment without notice.

Industrial Magistrate Scaddan rejected the respondent’s argument. Her Honour found that as the contract was silent on the parties’ obligations with respect to termination, the circumstances surrounding the claimant leaving his employment were irrelevant to the claim.  

However, her Honour found that although the respondent was not entitled to withhold wages for the period worked from 21 to 29 October 2019, absent the contract, there was no other industrial instrument or provision under the FW Act upon which the claimant could rely to establish a legal obligation for the respondent to pay the unpaid wages.

Her Honour concluded that the IMC does not have jurisdiction to make an order under the FW Act in respect of the claim for unpaid wages under the contract. Her Honour noted that the claimant may make a claim for denied contractual benefit or breach of common law in other forums.

Untaken paid annual leave

The respondent also agreed that the claimant did not take annual leave but argued that the claimant was overpaid during his employment.

Her Honour found that there was no way the respondent’s assertion of an ‘overpayment’ could be verified as there was no employment record of what monies were paid and for what purpose.

Her Honour found that, in any event, the respondent’s claim that the alleged ‘overpayment’ could set off any amount owed for untaken paid annual leave was flawed. Scaddan IM found that there was no correlation between the two payments to enable a claim for set-off and the character of the alleged overpayments were completely different to that of untaken paid annual leave.

Her Honour upheld the claimant’s claim for untaken paid annual leave and ordered that it be paid pursuant to s 90(2) of the FW Act.

The decision can be read here.