T9919
|
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Tammy Smith and Mr Malcolm Reece
Industrial dispute - Restaurant Keepers Award - alleged breach of award - hourly rate - casual employee - pay cheques 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 Tammy Louise Smith of Gagebrook. [2] The application was joined at the outset with two other applications: T9918 1 and T9928 2 of 2001. [3] None of the parties were represented at the hearing. [4] Mrs Smith and the two other applicants were in dispute with Mr Malcolm Reece of Glenorchy, trading as The Wine Glass Coffee Bar. [5] The employees were covered by the provisions of the Restaurant Keepers Award (the award). Mrs Smith claimed Mr Reece had breached the award. [6] Mrs Smith commenced employment with Mr Reece on 24 September 2001, and ceased employment on 8 November 2001. She said in evidence that she worked each evening from Tuesday to Saturday for six hours each day (normally from 5pm to 11pm), but, sometimes she worked for an extra hour. [7] Mrs Smith said she was employed as a casual kitchen hand and was paid $13.50 per hour. She said that she had not ever received a payslip, but, she produced a spreadsheet3 which detailed the hours she worked each day. The spread sheet attempted to detail the total amount of pay she received, which total amount included two dishonoured cheques with a combined total of $380. Mrs Smith attempted to show on the spread sheet the amounts of pay she should have received pursuant to the award. [8] It was claimed, and not denied, that the employees were told that an enterprise agreement applied to their employment, but, there was no evidence that such an agreement existed. [9] Mrs Smith also claimed additional amounts related to fees and other losses arising out of the dishonoured cheques. [10] Mr Reece did not dispute the evidence of Mrs Smith, but, claimed in explanation that the hourly rate he had paid was notified to him by his partner in the business who told him he was able to do so under a proposed enterprise agreement. Apart from the statements of Mr Reece, there was no evidence that there was a partner in the business. Findings [11] I am satisfied that Mrs Smith did the work of a Food and Beverage Service Grade 2 employee as provided in the award. I am also satisfied, on the evidence, that Mr Reece failed to pay Mrs Smith her proper wages for the period of her work on two bases - first, two cheques with a combined total of $380, purporting to pay for some of the monies due, were dishonoured; and secondly, he failed to pay the full (hourly) rate specified in the award.
[12] It does not fall within my jurisdiction to order that Mrs Smith be reimbursed for bank charges associated with dishonoured cheques. 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 Tammy Louise Smith of 12 Ashburton Road, Gagebrook, Tasmania 7030, the sum of six hundred and ninety-six dollars and sixty-six cents ($696.66), being arrears of wages due.
P A Imlach Appearances: Date and place of hearing: 2002 1 Laureen Joy Bennett and The Wine Glass Coffee Bar Mr Malcolm Reece |