Department of Justice

Tasmanian Industrial Commission

www.tas.gov.au
Contact  |  Accessibility  |  Disclaimer

T8098

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s29 application for hearing of an industrial dispute

Ranjita Ram
(T8098 of 1998)

and

Charlie Brown's Hot Dog House

 

COMMISSIONER P A IMLACH

HOBART, 29 June 1999

Industrial dispute - alleged breach of Restaurant Keepers Award - arbitrated - order made

REASONS FOR DECISION

This application was made by Miss Ranjita Ram of Hobart (the employee) seeking a dispute hearing under section 29(1A) of the Industrial Relations Act 1984 (the Act).

The employee was in dispute with Les Jackson of Charlie Brown's Hot Dog House, Argyle Street, Hobart (the employer) over alleged breaches of the Restaurant Keepers Award (the Award).

Mr A Laning, a legal practitioner, sought and was granted leave to appear on behalf of the employee: the employer did not object to Mr Laning's appearance.

The employee had commenced employment with the employer as a casual employee on 26 July 1997 and she ceased employment on 17 November 1998.

The employee claimed she had been underpaid in the wages due to her for the work she had done for the employer at Charlie Brown's Hot Dog House.

At the first hearing it was agreed by the parties that the Commission would seek the assistance of the Workplace Standards Authority to obtain full details of the amounts of money owed to the employee. The employer agreed to give access to the relevant records.

In the period intervening between the first and the second hearing a Workplace Standards Authority inspector did inspect the employer's records relating to the employee's period of employment and a report was submitted to the Commission.

A copy of the Workplace Standards Authority report was sent to the employer and the employee prior to the second hearing.

The report covered the period of the employee's employment by the employer and on the basis of the classification, Grade 2, casual, under the Award, listed her days of work, hours of work on those days, the wages due, the wages paid and the amount of arrears owing for each shift. The total amount owing to the employee was assessed at $3001.60. The employer did not challenge the amount assessed as owing.

During the course of the second hearing the employee sought and was granted leave to amend the application by changing the name of the employer from Les Jackson Pty Ltd to Les Jackson personally. In seeking this amendment the employee referred to the evidence and submitted that, because the employer had personally completed the employment process with the employee without any mention of a company being the employer he had been the employer in this case from the start, not the company. In support of this contention the employee read an extract from a case quoted in `Halsbury's Laws of Australia':

    "Where a person makes a contract in his or her own name without disclosing either the name or existence of a principal, he or she is personally liable on the contract to the other contracting party, though he or she may in fact be acting on a principal's behalf. The agent will continue to be liable even after discovery of the agency by the other party, unless and until there has been an unequivocal election by the other contracting party to look to the principal alone."1

Two last century English cases cited in `Halsbury's Laws of Australia' were quoted by the employee as precedents, Dramburg and Another v Pollitzer2 and Saxon v Blake3

The employer opposed the proposed amendment, and said that the relevant taxation document was in the name of the company and had been signed by the employee. In response the employee relied on the witness evidence and pointed out that the employer had not produced any evidence to support his submissions as to who was the actual employer and no written employment contract was produced.

The employee produced a draft order and requested that the Commission uphold the application and issue the order.

DECISION

I accept the submissions put on behalf of the employee and the evidence produced in support.

I am satisfied that in accordance with the terms of the Award and the evidence given at the hearing that the employee is entitled to be paid the outstanding wages due.

ORDER

In accordance with the power vested in me under section 31(1) of the Industrial Relations Act 1984, I hereby order that Les Jackson of Charlie Brown's Hot Dog House, Argyle Street, Hobart, within fourteen days from the date hereof, pay to Ogilvie McKenna of 209 Macquarie Street, Hobart, acting on behalf of Miss Ranjita Ram, the sum of three thousand and one dollars and sixty cents ($3001.60) being wages due on the termination of her employment.

 

P A Imlach
COMMISSIONER

Appearances:
Mr A Laning of Ogilvie McKenna, Barristers & Solicitors, for Ranjita Ram
Mr L Jackson for Charlie Brown's Hot Dog House

Date and place of hearing:
1998
December 3
Hobart
1999
June 10
Hobart

1 See transcript p.30
2 (1873) 28 LT 470
3 (1861) 29 BEAV 438