T10184
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Tanya Matthias and Mike Henderson
Industrial dispute - alleged unfair termination of employment and alleged non-payment of wages and accumulated annual leave - order issued REASONS FOR PRELIMINARY DECISION (1) On 13 May 2002, Tanya Matthias (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 Mike Henderson, arising out of the alleged unfair termination of her employment and alleged non-payment of wages and accumulated annual leave. [2] This matter first came on for hearing on 7 June 2002. [3] Mr R Collinson appeared for the applicant and Mr C Gunson appeared for the employer. [4] Following preliminary submissions, the hearing was adjourned to allow related proceedings in the Magistrate's Court to take their course. [5] On 12 September 2002 Mr Collinson wrote to the Commission foreshadowing an application to "include a claim for outstanding wages and annual leave entitlements owing as at 24th April 2002". Mr Collinson asked that the matter be re-listed at the Commission's earliest convenience. [6] Through circumstances the matter was not listed until 8 November 2002, a date that had previously been agreed between the parties. [7] When the matter resumed Miss L Mackey appeared for the applicant in place of Mr Collinson. [8] Miss Mackey sought to formally amend the application in line with the earlier correspondence. Mr Gunson did not oppose the application and leave to amend was granted. [9] Mr Gunson indicated that his client was interstate and hence sought an adjournment. He foreshadowed than in the event that the Commission was against him on the adjournment, he would seek leave to withdraw as counsel, with his firm remaining on the record as solicitors for the employer. [10] Miss Mackey strenuously opposed any further delay in the matter, pointing to the substantial delays that had already occurred as a consequence of the employer's position. [11] In the circumstances I determined that the Commission would proceed to hear evidence from the applicant in relation to that part of the application going to the alleged non-payment of wages and accrued leave only. [12] The evidence of Ms Matthias is summarised as follows: [13] Ms Matthias commenced employment as a programmer on 2 July 2001. In August 2001 both parties signed an "Employment Contract"1 which set the terms and conditions of her employment. [14] Ms Matthias was employed on a full-time basis, paid fortnightly in cash, one week in arrears. She was not provided with any pay details, nor required to complete time records. Ms Matthias did however keep her own record of days worked, leave taken and payments received.2 Such information was recorded on a weekly basis. [15] On 24 April 2002 Mr Henderson summarily terminated her contract of employment. [16] Ms Matthias asserts that the last fortnightly payment was made on 12 April 2002, being for wages owed up until 5 April 2002. She had not been paid subsequently apart from an amount of $300 given to her some time after the termination. [17] Ms Matthias claims she is owed three weeks wages, less the amount of $300. This equates to $2180.80. [18] In relation to annual leave Ms Matthias claims that she had accrued a total of 3.28 weeks leave of which she had taken 8.5 days. The claim for untaken leave amounts to $1306.60. [19] On 15 November 2002 I wrote to the employer enclosing the transcript and statement of particulars, and indicating that I would accept a written response, provided it was received not later than 5.00pm Monday 2 December 2002. No response was received. [20] Accordingly, the matter must be determined on the basis of the material before me. [21] I find that Ms Matthias has adequately substantiated her claim both in terms of unpaid wages and accrued annual leave, which has not been taken. I propose to issue an order to remedy these underpayments. [22] The file will remain open insofar as it relates to the alleged unfair termination of employment. The matter will be re-listed at the request of the applicant, but not before the proceedings in the Magistrates Court have concluded. Order Pursuant to Section 31 of the Industrial Relations Act 1984 I hereby order that Mike Henderson, 146 Patrick Street, Hobart, Tasmania 7000 pay to Tanya Matthias, 121 Vinces Saddle Road, Lower Longley, Tasmania 7109 an amount of three thousand, four hundred and eighty seven dollars, forty cents [$3487.40] in settlement of wages owed and untaken accrued annual leave, such payment to be made within twenty one days of the date of this decision.
Tim Abey Appearances: Date and Place of Hearing: |