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Tasmanian Industrial Commission

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T9918

 

TASMANIAN INDUSTRIAL COMMISSION

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

Laureen Joy Bennett
(T9918 of 2001)

and

The Wine Glass Coffee Bar Mr Malcolm Reece

 

COMMISSIONER P A IMLACH

HOBART, 22 FEBRUARY 2002

Industrial dispute - Restaurant Keepers Award - alleged unfair termination of employment - alleged breach of award - trainee - casual employee - pay cheque dishonoured - Order

REASONS FOR DECISION

[1] This was an application for a dispute hearing made under Section 29(1A) of the Industrial Relations Act 1984 (the Act), by Mrs Laureen Joy Bennett (the applicant) of Glenorchy.

[2] The application was joined at the outset with two other applications, T9919 1 and T9928 2 of 2001.

[3] Mrs Bennett and the two other applicants were in dispute with Mr Malcolm Reece of Glenorchy, trading as The Wine Glass Coffee Bar. She claimed unfair termination of her employment and breach of award.

[4] All of the parties represented themselves at the hearing. The applicant gave sworn evidence to the Commission in relation to her claim.

[5] Mrs Bennett commenced employment on 28 September 2001 and ceased employment on 10 November 2001. She said she had signed a Certificate II traineeship agreement with Mr Reece which commenced from 15 October 2001, and under that traineeship agreement she had been paid at the rate of $9.08 per hour. The applicant claimed she should have been paid $9.95 per hour as a trainee.

[6] Until the last week of her employment Mrs Bennett said she normally worked from 9am to 5pm from Monday to Thursday each week. She also said that a wages cheque for $128, dated 12 November 2001, had been dishonoured.

[7] Mrs Bennett said she took two days' sick leave on 29 and 30 October 2001, but, was not paid for them. She also said that, even though she resigned from her employment, she had only done so because of a reduction in her hours of work which was unacceptable to her. Mrs Bennett said that Mr Reece told her that he was reducing her hours of work so that he could employ a junior (to work at a reduced hourly rate) in her place. Mrs Bennett said this was discriminatory and unfair.

[8] In the weeks prior to the signing of the traineeship agreement, Mrs Bennett said she had been paid at the rate of $13.50 per hour, but, the rate should have been $13.60 per hour.

[9] Mr Reece, in response, said that Mrs Bennett had been employed as a casual employee and she chose to resign. He did not dispute the rest of Mrs Bennett's evidence.

[10] The Commission eventually obtained copies of documents related to the applicant's traineeship under the provisions of the Vocational Education and Training Act 1994, which is administered by the Tasmanian State Training Authority.

[11] The traineeship agreement was headed Tasmanian Training Agreement Part 3, and it specified the applicant was aiming to achieve a "Hospitality (Operations) II" qualification. The agreement was to take effect from 15 October 2001.

Findings

[12] For the period of her employment 28 September 2001 to 11 October 2001 (inclusive), I am satisfied that the applicant did the work of a Food and Beverage Service Grade 2 casual employee pursuant to the Restaurant Keepers Award. I am also satisfied, on the evidence, that Mr Reece failed to pay the applicant her proper wages for that period in accordance with the Restaurant Keepers Award.

 

Wages pursuant to the Restaurant Keepers Award:

$1130.96

Less wages already received:

$1005.75

Arrears of wages due for the period 28/9/1 - 11/10/01:

$125.21

[13] I dismiss the applicant's claim in relation to the alleged unfair termination of her employment on the grounds of insufficient evidence. I also dismiss her sick leave claim as she was a casual employee and therefore not entitled to sick leave.

[14] On the basis of the traineeship agreement, I find the applicant was covered by the provisions of the National Training Wage (Tasmanian Private Sector) Award, Wage Level B. It was put in evidence that the applicant's traineeship commenced on 15 October 20013 and ended on 10 November 20014 when she ceased employment with The Wine Glass Coffee Bar.

 

Wages pursuant to the National Training Wage (Tasmanian Private Sector) Award:

$1089.81

Less wages already received:

$820.88

Arrears of wages due for the period 15/10/01 - 10/11/01:

$268.93

Order

In accordance with the power vested in me under Section 31(1) of the Industrial Relations Act 1984, in settlement of this dispute, I hereby order that, within 21 days from the date of this decision, Mr Malcolm Reece of 15/31 Elwick Road, Glenorchy, Tasmania, 7010, pay to Mrs Laureen Joy Bennett of 15 Murrayfield Court, Glenorchy, Tasmania, 7010, the sum of three hundred and ninety-four dollars and fourteen cents ($394.14), being arrears of wages due.

 

P A Imlach
COMMISSIONER

Appearances
Mrs L J Bennett (18/12/01, 15/01/02), self-represented
Mr M Reece (15/01/02) trading as The Wine Glass Coffee Bar, self-represented

Date and place of hearing:
2001
December 18
Hobart
2002
January 15
Hobart

1 Tammy Smith and Mr Malcolm Reece The Wine Glass Coffee Bar
2 Pamela Joy Cowen and The Wine Glass Coffee Bar
3 Transcript, page 7, 15/1/02
4 Transcript, page 5, 15/1/02