Department of Justice

Tasmanian Industrial Commission

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

T9375

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

Nikki-Tegan Michael
(T9375 of 2001)

and

Classic Video Pty Ltd trading as Video City

 

COMMISSIONER P C SHELLEY

HOBART, 9 March, 2001

Industrial dispute - alleged breach of award or registered agreement - clause 10 - annual leave - clause 8 - wages rates - breaches found - order issued

REASONS FOR DECISION

On 16 January, 2001, Nikki-Tegan Michael, (the applicant), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Classic Video Pty Ltd trading as Video City arising out of an alleged breach of an award or a registered agreement.

On 23 January, 2001, the President convened a hearing at `Lyndhurst', 448 Elizabeth Street, North Hobart, Tasmania, before myself, to commence on 29 January, 2001.

On that date Mr J Bronstein sought and was granted leave to appear on behalf of the applicant. The employer did not enter an appearance and the matter was adjourned so that the respondent employer could be given a second opportunity to appear. Accordingly, the matter was relisted for hearing at 10.30 am on Tuesday 20 February 2001.

On 29 January 2001 I wrote to the employer in the following terms:

"...On 23 January, 2001, I informed you and other interested parties, in writing, that I proposed to hear the above matter at 10.30, Monday 29 January 2001. The Registrar notified the place of hearing as `Lyndhurst', 448 Elizabeth Street, North Hobart, Tasmania...

At the time when the matter was called on, Mr J Bronstein of Ogilvie McKenna, appeared on behalf of the applicant, Miss Nikki-Tegan Michael. The record shows, however, that you did not appear and that no person appeared on your behalf.

As the respondent was not in attendance, I determined that the matter should be adjourned to another date, to give the respondent another opportunity to be represented.

...Therefore, I inform you that the matter has been relisted for hearing at 10.30 am on Tuesday, 20 February 2001, at `Lyndhurst'...

If you are not in attendance on that day, I hereby give notice that pursuant to section 21(2)(e) of the Act, that I intend to hear and determine this application in your absence."

In addition to the above letter being sent to the employer I am satisfied that a further Notice of Hearing was sent to the current principal place of business of the employer, both by facsimile and by post, on 29 January 2001.

On 20 February 2001, when the hearing resumed, Ms H Badenach sought and was granted leave to appear on behalf of the applicant and the employer again failed to register an appearance.

The hearing proceeded in the absence of the respondent employer pursuant to section 21(2)(e) of the Industrial Relations Act 1984.

Background

The dispute concerned the alleged failure to pay annual leave to Miss Nikki-Tegan Michael and an alleged failure to pay to her the full amount of wages due on two occasions.

Miss Michael was employed by the respondent as a Library Attendant, under the terms of the Miscellaneous Workers Award, from 2 February 1997 until 31 October 1999.

During this period she accrued 10 weeks of annual leave entitlements. The applicant alleges that she only ever received payment for four of those weeks when she took annual leave, but was not paid the remainder when she ceased her employment.

The second alleged breach of the award is in relation to two amounts of $39.30 which were due to her by way of wages, but which were withheld from her pay.

The Case for the Applicant

Ms Badenach provided the Commission with a copy of a letter from Royal & Sun Alliance Insurance Pty Ltd, to Ogilvie McKenna Solicitors, which said inter alia:

"Re: Nikkie-Tegan Michael

    Employer - Classic Videos

I...advise that we have now been advised by Mr Terrence Ewing of Classic Videos, that Annual Leave entitlements up to the 31/10/99 amount to $1205.04..."1

Miss Michael testified that she had money deducted from her wages on two occasions. The reason for the deductions was that some promotional posters had been disposed of by herself and consequently the respondent had decided, without her authority, to deduct money from her wages.

Ms Michael said that she had approached her employer (Mr Terry Ewing) and had asked him to cease making such deductions, to which, she said, he replied "If you don't like it take me to court".2

Two pay slips were tendered as evidence, one dated 22 September 1999 which shows a deduction of $39.30 and the other dated 6 October 1999 shows a deduction of the same amount.3

The evidence of Miss Michael was that she had written some letters to Mr Ewing requesting that her annual leave be paid, and that her lawyer, Mr Jeff Bronstein, had written some letters as well.

Findings

In the absence of any evidence to the contrary, I accept the evidence of Miss Michael.

I also accept the amount referred to in the letter from Royal and Sun Alliance as being the amount owed to Miss Michael for unpaid annual leave entitlements, and the two pay slips as evidence of unpaid wages.

The total of these amounts is $1283.64.

I find that the employer, Classic Video Pty Ltd, has breached Clause 10 - Annual Leave and Clause 8 - Wage Rates of the Miscellaneous Workers Award. I therefore issue the following Order:

ORDER

PURSUANT TO the power conferred on me by Section 31(1) of the Industrial Relations Act 1984 I HEREBY ORDER that, in settlement of the industrial dispute referred to in matter T9375 of 2001, the employer, Classic Video Pty Ltd, trading as Video City, PO Box 39, Sandy Bay 7006, pay to Nikki-Tegan Michael, 26 Sanders Street, Glenorchy, Tasmania 7010 the sum of One Thousand, Two Hundred and Eighty Three Dollars and 64 Cents, in full settlement of this dispute, such payment to be made on or before 5 pm Thursday 29 March 2001.

 

P C Shelley
COMMISSIONER

Appearances:
29 January 2001
Jeff Bronstein of Ogilvie McKenna for the applicant
20 February 2001
Hannah Badenach of Ogilvie McKenna for the applicant

Date and place of hearing:
2001
29 January
Hobart
2001
20 February
Hobart

1 Exhibit B2
2 Transcript p5
3 Exhibit B3