T7661, T7662, T7805, T7826, T7852, T7965
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 David John Tubb and Raymond and Ann Fenech trading as Acqua Blu Restaurant
Industrial disputes - termination of employment - alleged unfair dismissal - non payment of wages - orders issued REASONS FOR DECISION Four of the above applications were listed for hearing on 20 July 1998, however, the Employer (Acqua Blu Restaurant) was not represented. The operators of the former restaurant had returned to Victoria and had advised that they would be unable to attend any hearings in relation to these matters in Tasmania. At the hearing Mr J Bronstein (of counsel) appearing for the applicants outlined the background to the applications and sought orders from the Commission against the Employer. Since the initial hearing a further two applications have been lodged and I have joined them with those the subject of the hearing on 20 July 1998. The background to these claims is that Raymond and Ann Fenech of 1102 High Street, Armidale, Victoria leased and managed a complex on the Elizabeth Street Pier development known as the restaurant Acqua Blu. The restaurant commenced operation on 25 December 1997 and ceased trading on 8 June 1998. The applicants in this matter were employed for varying periods by Acqua Blu and all claim that at the time of dismissal or at the time of the closure they were owed various amounts in wages which had not been paid. Two applicants Messrs D J Tubb and M J Willmot are also claiming six (6) weeks pay because of alleged unfair dismissal. Both employees were dismissed from Acqua Blu on 1 April 1998. At the hearing on 20 July 1998, I agreed to progress this matter on the basis that Mr Bronstein would provide me with statutory declarations from each of the applicants detailing their claims and any supporting information. These declarations would then be forwarded to the Employer to allow a response. I advised the applicants that on receipt of responses I would consider an appropriate course of action to progress their claims. On 23 October 1998 I received detailed responses from the Employer in relation to four of the claims and advice that the responses to the claims by Messrs Tubb and Willmot would follow as soon as practicable. On 18 November 1998 I received those responses and having considered the total of the information now in my possession I do not believe any useful purpose would be achieved by a further hearing and therefore I will determine each case on the basis of material now to hand. The claim by Bronwyn Lee-Anne Brown is that at the time of her termination she was owed the following:-
Claims (b) and (c) above are accepted by the Employer. Claims (a) and (d) are accepted in part in that the Employer believes the calculation of (a) amounts to $594.90 and (d) to $423.04. The Employer denies any liability for unpaid gratuities. Reasons for that denial of liability have been provided to me however, I will not address them as I believe the payment or otherwise of gratuities is not a matter than can be determined by this Commission. It is my intention in relation to this and other claims to issue an order against the Employer in relation to the agreed liabilities. I will also include in the order in each case an amount totalling the accepted liability by the Employer of components not agreed i.e. in this case claims (a) and (d). However, I would expect the parties to further confer or communicate on disputed claims as they should be resolved on the basis of records available of time worked and rates paid compared to award entitlements. To this end I will make available to Mr Bronstein a copy of relevant documentation provided by Mrs Ann Fenech which may help in that process. The claims made by Leasa Tess Hincks are:-
Claims (a) and (b) are not disputed by the Employer. The claims made by Roger David Smith are:-
These claims are accepted by the Employer. The claims made by Clare Rebecca Falconer are:-
The Employer accepts the above claims, to the total of $1,697.85. The claims made by David John Tubb are:-
The Employer accepts an amount of $317.31 for (a) above and has submitted reasons going to a reduction in business and the consequent need to reduce employment as the grounds for terminating Mr Tubb. From the evidence produced by the Employer I conclude that the termination of Mr Tubb was based on a reduction in work and he was consequently made redundant. I determine two weeks pay should be paid to Mr Tubb as a redundancy payment. On the basis of a weekly rate of $528.85 the order in relation to claim (c) above will be for $1,057.70. The claims made by Mark John Willmot are:-
The Employer accepts an amount of $317.31 for (a) above and as in the case of Mr Tubb relies on a reduction in work as the reasons for Mr Willmot's termination. As Mr Willmot appears not to have been paid any notice I determine that he be paid two days pay in lieu of notice and as with Mr Tubb two weeks redundancy pay, an amount of $1,269.24. These applications have been difficult to resolve as there has been no detailed hearing and consequently proper evidence going to the issues. In relation to the amounts not agreed by the Employer I encourage further discussion or correspondence between the parties to reach a satisfactory conclusion in each case. If this does not occur, I believe it unlikely that I will be able to get better information than I have to date therefore my orders in relation to each application are as follows: In settlement of T7661 of 1998 I order Raymond and Ann Fenech 1102 High Street, Armadale, Victoria 3143 to pay to Mr D J Tubb 209 Watson Road, Castle Forbes Bay the amount of $1,375.01. In settlement of T7662 of 1998 I order Raymond and Ann Fenech 1102 High Street, Armadale, Victoria 3143 to pay to Mr M J Willmot, 3/27 Stanley Street, Bellerive the amount of $1586.55. In settlement of T7805 of 1998 I order Raymond and Ann Fenech 1102 High Street, Armadale, Victoria 3143 to pay to Ms B L Brown, 3/27 Stanley Street, Bellerive the amount of $2,207.74. In settlement of T7965 of 1998 I order Raymond and Ann Fenech 1102 High Street, Armadale, Victoria 3143 to pay to Ms L T Hincks, 3 Donohoe Gardens, Blackmans Bay the amount of $1,663.09. In settlement of T7852 of 1998 I order Raymond and Ann Fenech 1102 High Street, Armadale, Victoria 3143 to pay to Mr R D Smith, Deep Bay, Cygnet the amount of $2,105.56. In settlement of T7826 of 1998 I order Raymond and Ann Fenech 1102 High Street, Armadale, Victoria 3143 to pay to Ms C R Falconer, 45 George Street, North Hobart the amount of $1,697.85.
J G King Appearances: Date and place of hearing: |