T10248
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Karen Anne Crawford and Khama Pty Ltd
Industrial dispute - breach of award - order issued REASONS FOR DECISION [1] On 18 June 2002, Karen Anne Crawford (the applicant), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984 (the Act) for a hearing before a Commissioner in respect of an industrial dispute with Khama Pty Ltd trading as La Bellisima Bellerive ACN 095 543 070 ACN 097 000 354 (the respondent) arising out of an alleged breach of an award. [2] On 20 June 2002, the President convened a hearing at `Lyndhurst', 448 Elizabeth Street, North Hobart, Tasmania before myself, to commence on Thursday 4 July 2002 at 10.30 am. [3] At the hearing Ms Crawford represented herself and there was no appearance on behalf of the employer. [4] I am satisfied that the Notice of Hearing was correctly served upon the respondent, and the hearing proceeded in the absence of the respondent employer pursuant to section 21(2)(e) of the Act. [5] On 10 July 2001, I wrote to the respondent in the following terms:
[6] As there has been no response to that letter, the decision is now issued. Background [7] The respondent opened a restaurant in Bellerive trading under the name "La Bellissima". The applicant was employed as a cook, commencing on 25 October 2001. Her duties included cooking, cleaning, and the general running of the kitchen. Her employment ceased on Monday 13 May 2002, when the employees were informed that the restaurant was closing that night. Ms Crawford is claming unpaid wages and an amount for annual leave. The Case for the Applicant [8] Ms Crawford said that she was employed by the Hobart manager, Mr Bryce Shields. She was paid by cheques, which came from Melbourne. The terms of her employment were set out in a contract headed "Employment Contract Between Karen Crawford and Khama Pty Ltd Trading as Bellerive La Bellissima". The document said, inter alia, that she was to receive an annual salary package of $31,500 and that other conditions of employment were those as outlined in the Restaurant Keepers Award. The contract establishes that the commencement date was 25 October 2001 and is signed by Ms Crawford and by Bryce Shields in his capacity as manager. [9] Mr Crawford's position, she said, was that of second cook, or assistant cook. She was employed full time and the hours she worked were between 38 and 45 hours for every week. She was not told which award classification applied to the work she performed. [10] On 13 May 2001 the assistant manager, Maree, told Ms Crawford that the doors were to shut that evening, after the completion of service. There was no official letter of termination, nor has there been one since. On that day, the wages cheques were to arrive from Melbourne, but, for some reason, the manager, Mr Shields, sent the cheques back. He said that they were to be posted to the employees' home addresses. Ms Crawford rang the company's accountant in Melbourne, Ron, who told her that there was nothing he could do. [11] Ms Crawford said that she continued to try to obtain the wages owed, and a separation certificate, to no avail. At one stage Mr Shields offered the stainless steel work benches in lieu of the wages owed, but that did not eventuate. She said that she also approached Workplace Standards Authority, who informed her that they could not help her. [12] The amount she is owed, she said, is for three weeks' wages, one full fortnightly pay period, plus a week into the next, plus annual leave. Ms Crawford had attached a document to her application, which was, she said, prepared by Mr Shields, and which sets out the amounts, as follows: "Pay fortnight week ending 6 May 2002 [13] Mr Crawford provided the Commission with a notebook recording all the hours that she worked1. She also provided the Commission with all of her pay slips.2 [14] Ms Crawford said that the work she performed included the preparation of a la carte meals. She has no qualifications and initially there was a qualified chef in the kitchen, but after things started going bad she was the main cook. Her duties included the general running of the kitchen, including store keeping and stock control. She supervised the kitchen hands when they were on. FINDINGS [15] In the absence of any evidence to the contrary, I accept Ms Crawford's version of events. [16] I find that Ms Crawford was entitled to be paid according to the Restaurant Keepers Award. I find that the appropriate classification level for the work she performed is Food and Beverage Service Grade 6, however she was not a qualified cook, so the classification which must be applied is that of a Food and Beverage Service Grade 3, the rate of pay for which, at the relevant times, is $473.50 per week, or $12.46 per hour. Ms Crawford was actually paid $16.00 per hour. On the face of it, Ms Crawford received an above award payment, however the $16.00 per hour was a rate for all hours. When overtime and penalty rates are taken into consideration, she may, in fact, on some occasions have received less than the award entitlements. I do not have a claim before me in respect of all of the weeks worked, only for the final three, plus annual leave, therefore the following calculations apply only to that. During the hearing, reference was made to the entitlement to payment in lieu of notice, and that, too, is included in the Order. [17] For the fortnight ended 6 May 2002, based upon the contemporaneous record Ms Crawford kept of hours worked, I calculate that 52.5 of those hours were at ordinary time, 9 ¾ were at overtime rates - 9 at time and a half, and ¾ hour at double time. 12 ¾ hours were worked on Saturdays at time and a quarter and 17 ½ hours were worked on Sundays at time and three quarters. I find that the amount owing for wages for that pay period is $1417.99. [18] For the period 7 May until 13 May 2001, Ms Crawford worked 15 ordinary hours, 2 ½ hours at time and a quarter, ¾ hour at time and a half, 10 ¼ hours on a Saturday and 8 ¾ hours on a Sunday. I find that the amount owing for wages for that period is $602.86. [19] The amount owed for annual leave is calculated according to Clause 9 - Annual Leave - of the Restaurant Keepers Award, that is, 12 2/3 hours at the "ordinary rate of wage" for each completed month of service. I have taken the "ordinary rate of wage" to be $12.46 per hour, being the hourly rate for Food and Beverage Service Level 3 in the Restaurant Keepers Award. I find that the amount owed for annual leave is $946.90. [20] In addition, I find that Ms Crawford is owed $189.40, being two days' wages in lieu of notice, as per clause 35 - Terms of Engagement - of the Restaurant Keepers Award. I have based the two days' wages on rate for Food and Beverage Service Level 3. [21] I find that the total amount owed to Ms Crawford is $3,157.15. ORDER I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, in full and final settlement of the matter referred to in T10248, that Khama Pty Ltd trading as Le Bellisima Bellerive ACN 095 543 070 ACN 097 000 354, 896 Dandenong Road, Springvale, Victoria 3171, pay to Karen Anne Crawford, 150 Tollard Drive, Rokeby, Tasmania 7019, the sum of Three Thousand One Hundred and Fifty Seven Dollars and Fifteen Cents and that the payment be made to Ms Crawford no later than 5pm on Wednesday 21 August 2002.
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