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TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
Cassandra Jane Nolan
and
Julieanne Simms
Industrial dispute - termination of employment - alleged breach of award or registered agreement – Order issued
REASONS FOR DECISION
[1] On 16 May 2008, Cassandra Jane Nolan (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Julieanne Simms (the respondent) arising out of a dispute in relation to termination of employment and alleged breach of award or registered agreement. [2] The matter was listed for hearing (Conciliation Conference) at The Court House, 19 King Edward Street, Ulverstone, Tasmania on Thursday, 3 July 2008 at 1.30 pm. [3] The respondent informed the Commission by way of letter on 1 July 2008, that “… due to enormous grief and stress this employee caused me …” she was unable to attend the conference (Exhibit R01). The respondent also by way of letter on 1 July 2008 gave her explanation of the matters in dispute (Exhibit R02). [4] By the commencement of the conference on 3 July 2008 the respondent failed to appear. The matter proceeded in absentia. [5] The applicant was engaged by Julieanne Simms T/as EXPOSE Hair and Beauty, as an apprentice hairdresser on 11 September 2007. She ceased working for the respondent on 1 May 2008. [6] The Commission heard the applicant’s submission. Transcript of the proceedings was sent to the respondent on 15 July 2008. The Commission sought her response to the applicant’s allegations. The respondent replied by way of letter on 21 July 2008. Attached to the letter was a doctor’s Certificate attesting to the respondent’s medical condition and her inability to work for six weeks following 16 July 2008. [7] The Commission sought to hear the matter in the presence of both parties. In correspondence posted to the respondent on 25 July 2008 the Commission informed her as follows:
“It is the intention of the Commission to conduct a further hearing at the expiration of the medical certificate provided by you (after 27 August 2008).” [8] The unopened letter was returned to the Commission stamped “left address/unknown” on 3 September 2008. [9] Notification of the proposed hearing was sent to the respondent 1 September 2008. The notification was returned to the Commission stamped “left address/unknown”. The above letter and the notification of the hearing were returned together to the Commission on the same date, 3 September 2008. [10] A hearing was held on 2 October 2008. At the commencement of the hearing again the respondent failed to appear. The matter proceeded in absentia. [11] The applicant alleged her employment had been terminated unfairly on 1 May 2008. She asserted she had been contacted by another employee Ms Yvonne Geleaika and advised not to return to work until 7 May 2008. She also asserted she was later contacted by Skills Tasmania, a training provider, and informed that her services were no longer required by the respondent. [12] The applicant alleged she had sought the correct wage rate for working on Saturdays and this had upset the respondent. She asserted she was not paid for Saturdays although they were expected to work them. She alleged:
“… Yvonne, the manager … said well she doesn’t get anything for Saturday so I shouldn’t either.” (Transcript p.3, L.45) [13] The applicant asserted she had: “… been working a couple of Saturdays …”. (Transcript p.3, L.40) [14] The applicant asserted she was not paid holiday pay on termination, nor given a Separation Certificate. She did however confirm she had been paid outstanding wages and one week in lieu of notice. [15] The applicant claimed the respondent had failed to pay superannuation contributions. Exhibit A1, a statement from Tasplan confirms the respondent “ceased paying contributions … on 28 February 2008” … “Your total account balance $12.09”. [16] The applicant alleged the respondent charged her $1000 for a training fee. She asserted she had monies deducted from her pay each fortnight to cover the cost. She asserted she did not give authority to the respondent for the deductions to be made. At the time of the conference the applicant asserted she had had a total of $500 deducted from her pay. [17] The applicant asserted she had “some” receipts for the training fee, but had not been given pay slips. She stated: “… not proper ones, no.” (Transcript p.5, L.5) [18] The applicant asserted that she had her toolkit at home when her employment was terminated, and as a consequence, still had possession of it. At page 4, lines 10-15, of transcript the applicant said:
“… had my own toolkit but that wasn’t mine until a few more weeks …” [19] In her correspondence of 21 July 2008, the respondent accused the applicant of theft. She stated:
“12 Stealing $800 worth of equipment 13 Stealing $200 worth of books from RTO.” [20] It appears the $800 was with reference to the toolkit and the books were the applicant’s training manuals provided by the training organisation. There was no evidence that the matter of “theft” had been reported to Tasmania Police. [21] In her letter of 19 May 2008 to the Commission, the respondent alleged the applicant’s employment was terminated because of unsatisfactory performance. [22] The respondent alleged the applicant had verbally agreed to have $200 per month deducted from her pay for training fees; and that $400 had been deducted not $500 as asserted by the applicant. Further the respondent alleged the applicant had agreed to have time off in lieu for Saturdays worked. The respondent asserted that:
“… a copy of Cassandra’s pay slips & also the receipts for the $400.00 taken for training fees can be made available on request.” [23] Attached to the above letter of 19 May 2008, the Commission was sent a copy of a letter allegedly sent to the applicant by the respondent dated 12 May 2008. In it the applicant was invited to return the toolkit:
“If the Kit is not returned within 7 days, you (sic) final wages will be used as part payment for the Kit & the balance will be due & payable by yourself.” [24] The correspondence also stated that the applicant’s final pay would be made available to her at Jobnet in Burnie in exchange for the toolkit. [25] On 25 July 2008 the Commission received correspondence from the respondent alleging many and varied issues with the applicant while employed by her. [26] On several occasions contact was made by the Commission with the applicant to try and ascertain a current residential address for the respondent. [27] A concern for Commission was to establish a means by which notice and orders could be placed on the respondent when her residential location was not, at that time, known. [28] On 26 November 2008 the applicant advised the Commission of the respondent’s current residential address.
FINDINGS [29] This application has suffered from the inability of the respondent to attend either the conciliation conference or the hearing. Further her vacation of her last known address has caused the Commission considerable effort in trying to locate her. [30] It was not disputed that the applicant’s employment was terminated on 1 May 2008. From correspondence provided by the respondent and evidence from the applicant the workplace appears quite dysfunctional. To this end there has been insufficient substantiated evidence to ascertain if the applicant was unfairly dismissed or not. [31] The applicant, by her own evidence, received all outstanding wages and one week in lieu of notice. One week’s notice by either party, or pay in lieu is stipulated in the Hairdressing, Health and Beauty Industry Award, No 1 of 2007 (Consolidated) at Part II – Employment Relationship and Associated Matters, Clause 3 (c) (i). [32] Having been employed for seven complete months the applicant is entitled to proportionate annual leave pay as stipulated in the award at Part V – Holidays and Pay and Leave, Clause 1 (h) (i) (1):
“Full-time employees - 12.67 hours for each completed month of continuous service.”
[33] The applicant is due 88.69 hours at ordinary time rate, and I so find. [34] There is clear evidence the respondent failed to pay the required superannuation payments to the applicant’s nominated fund. The award at Part III – Wages, Allowances and Related Matters, Clause 6 (b) stipulates an employees entitlement to superannuation payments. The applicant is entitled to have 9% of her ordinary time earning, less $12.09 already paid, for the duration of her employment paid to her superannuation fund, and I so find. [35] There is doubt as to the legitimacy of the respondent deducting training fees from the applicant. There is also the applicant’s sworn evidence that she had not given permission for a sum to be deducted from her salary. The applicant is entitled to have all monies deducted from her by her employer in the guise of fees for training reimbursed, and I so find. [36] The ownership of the Toolkit is not a matter for this jurisdiction. The respondent must seek other avenues to recover the toolkit if she believes she has an entitlement to it. It is not for the respondent to withhold any wages or entitlements due to the applicant as an offset the cost of the toolkit.
ORDER
Pursuant to s.31 of the Industrial Relations Act 1984, I hereby Order Julieanne Simms to pay Cassandra Jane Nolan the following monies by 5.00 pm on Friday the 19 December 2008:
For accrued annual leave, the sum of - $608.41
For superannuation, the sum of - $879.44
For deducted training fees, the sum of - $500.00
A total payment of - $1,987.85
James P McAlpine
Appearances:
Date and Place of Hearing: July 3 |
