WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2012 WAIRC 01060

DELIVERED : Wednesday, 7 November 2012

FILE NO. : M 5 OF 2012

CLAIMANT

AND

Newric Pty Ltd

RESPONDENT

Catchwords : Claim for the payment of $17,524.08 being the value of long service leave entitlements which were not paid on termination of employment; Claim not denied but quantum of entitlement in issue; whether employment started on the date alleged by the Claimant; turns on its own facts.

Legislation : Fair Work Act 2009 (Commonwealth)

  Notional Agreement Preserving the Metal Trades (General) Award 1966

  Long Service Leave – Standard Provisions General Order 66 (Vol. 1) WAIG 1

Result : Judgement for the Claimant

Claimant : Mr Phillip Cheeseman appeared in person

Respondent : Mr Graham Gordon Director of the Respondent

REASONS FOR DECISION

(This judgement was delivered extemporaneously on 7 November 2012 and has been edited from the transcript)

The Claim

1         Mr Cheeseman alleges that the Respondent did not pay him his long service leave entitlements, upon the termination of his employment in October 2009. 

2         Mr Cheeseman asserts that his entitlement to payment in lieu of long service leave arises from the provisions of the Notional Agreement Preserving the Metal Trades (General) Award of 1966.  Indeed there is no dispute about the fact that the Claimant and the Respondent were, at the material time, bound by the Metal Trades (General) Award of 1966 (the Award) .  The long service leave provision of that Award has application to the parties in this proceeding.

3         Mr Cheeseman alleges that he is owed $17,524.08 for 16.47 weeks of accrued long service leave.  That sum is calculated at the rate of $28 per hour per hour over a 38 hour week.  There is no dispute that Mr Cheeseman’s rate of pay was $28 per hour at termination.   

4         The Respondent does not deny that it has not paid Mr Cheeseman his long service leave entitlement but disputes the quantum of his claim.  Through its Director, Mr Gordon, the Respondent suggests that Mr Cheeseman started working for it in 1992 and not January 1990 as alleged.  Therefore the only issue in this case is whether Mr Cheeseman can prove that he started working for the Respondent in January of 1990.  Mr Cheeseman bears the burden of proving his claim on the balance of probabilities.  In the end result I am required to determine the amount which is payable to Mr Cheeseman. 

When did Mr Cheeseman’s entitlement begin to accrue?

5         The Respondent contends that a Taxation Declaration Form (Exhibit 2) signed by Mr Cheeseman on 24 August 1992 shows that he commenced work on that date.  Mr Cheeseman says he was asked by the Respondent to sign a second Taxation Declaration Form at a time when the Respondent reorganised its records.

6         Mr Cheeseman says that he started work as an apprentice mechanic in 1986. His apprenticeship concluded in 1989.  His group apprenticeship was conducted by the MTA and worked with various entities during the course of his apprenticeship.  In the last two years of his apprenticeship he was placed with the Respondent.  During that time the MTA paid him.  Upon completing his apprenticeship in 1989, the Respondent asked him to stay on. He commenced working directly for the Respondent immediately upon the completion of his apprenticeship.  That was in January of 1990.  He has a memory of those events and the associated timelines.  Mr Cheeseman says that he is certain of the dates relating to his apprenticeship and the commencement of his work for the Respondent. He has produced various documents supporting his contention. 

7         I accept Mr Cheeseman’s evidence in that regard.   It is not unusual for a significant event such as the obtaining of a qualification or the starting of a first job to be etched in one’s memory.  Most people will recall the date of an important event in their lives.  I am sure that the completion of his apprenticeship and the start of his first job following qualification are of such significance to Mr Cheeseman that he recalls the same with clarity.  That is so despite the fact that when cross-examined by Mr Gordon he said that he commenced his apprenticeship in 1988.  The significance of that date is that if he did commence his apprenticeship in 1988 it follows that he would have completed his training in in 1992 supporting the Respondent’s contention about his start date.  It is obvious however that Mr Cheeseman made a genuine mistake, a slip of the tongue, when responding to Mr Gordon.  That is all it was.  I am confident of that because Mr Cheeseman quickly corrected that error maintaining throughout that he commenced his apprenticeship in 1986 and gained employment with the Respondent in 1990 following the completion of his apprenticeship in 1989. 

8         In addition, Mr Cheeseman has produced documents which support his claim. The documents in Exhibit 3 recovered from the Respondent with the assistance of the Fair Work Ombudsman include the Respondent’s records of Mr Cheeseman’s accrual of annual leave entitlements. 

9         The first document in the group of documents received shows that Mr Cheeseman accrued 220.4 hours of annual leave entitlements prior to 14 January 1992.  Then between 14 January 1992 and 23 December 1992 he accrued another 91.2 hours.   If the Respondent did not employ Mr Cheeseman until 24 August 1992 it would not have kept such a record relating to a period predating his employment.  The obligation would have rested with the MTA.  The only reasonable inference to be drawn is that the document was created by the Respondent in order to comply with its employment obligations to Mr Cheeseman.  The document supports and corroborates Mr Cheeseman’s contention that his employment with the Respondent commenced in January of 1990.

Conclusion

10      On the balance of probabilities I am satisfied that Mr Cheeseman started work for the Respondent in January of 1990.  That employment terminated in October of 2009. Mr Cheeseman’s calculation of what he is owed in unpaid long service leave is entirely correct.   He has not been paid $17,524.08 to which he entitled. 

11      The claim has been wholly made out. Judgment will be entered for the Claimant against the Respondent in the sum of $17,524.08.

Orders

12      The following orders are made:

1. Judgement for the Claimant against the Respondent
2. The Respondent shall pay to the Claimant $17,524.08

G. Cicchini

Industrial Magistrate