T11426
|
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Minister for Infrastructure, Energy and Resources and Crafty Critters (Australia) Pty Ltd
Industrial dispute - alleged underpayment of wages - application amended - order issued REASONS FOR DECISION [1] On 1 April 2004, The Minister for Infrastructure, Energy and Resources (the applicant) applied to the President, pursuant to s.29(1C) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of a dispute with Crafty Critters (Australia) Pty Ltd (the respondent) arising out of the alleged underpayment of wages in accordance with the National Training Wage (Tasmanian Private sector) Award P182, which refers to the Retail Trades Award P059 for general conditions of employment, to Margaret White. [2] The President convened a hearing (conciliation conference) at the Supreme Court, Cameron Street, Launceston, Tasmania on 13 May 2004. [3] Appearances: Mr G Thomas for the applicant; Mr R Foggo and Mrs S Foggo for the respondent. [4] On 13 May 2004, after hearing preliminary submissions associated with the application, the hearing adjourned into conference, with the Commission, in an attempt to settle the dispute. [5] The outcome of the conference was that Crafty Critters (Australia) Pty Ltd agreed to pay to Margaret Elizabeth White all unpaid accrued annual leave. However regarding the second claim of six days sick leave, no agreement was reached. [6] The proceedings were adjourned sine die at this stage. [7] A further hearing was convened on at the Supreme Court, Cameron Street, Launceston, Tasmania on Friday, 18 June 2004 at 9.15. [8] Appearances: Mr G Thomas for the applicant. [9] A telephone call received at approximately 9.00 am on that day, from Mrs S Foggo, who informed the commission Crafty Critters (Australia) Pty Ltd would not be represented. [10] I deemed the hearing should proceed ex parte. In the interest of natural justice however, on 23 June 2004 I directed that a copy of the transcript be forwarded to Crafty Critters (Australia) Pty Ltd for their perusal and that they respond not later than 5.00 pm Friday, 2 July 2004 with any counter evidence. Their response then to be forwarded to the applicant for comment. [11] Depending upon the content of the initial response and the counter response from the applicant, I would decide if it were necessary to reconvene a hearing or make a decision on the evidence before me. [12] Both parties have had sufficient time and access to all the information to be able to respond in full. Those responses were received. I deem it unnecessary to convene another hearing. I make a finding on the evidence I have before me. [13] This matter hinges on the acceptance or otherwise of a Medical Certificate covering the six days Margaret Elizabeth White claimed sick leave. [14] The veracity of the Medical Certificate has been challenged by the employer. The coincidental timing and duration of the applicant's apparent illness with the cessation of her employment raised questions in the employers mind. In my view it is understandable the employer would be suspicious in such circumstances. [15] The evidence put forward by Ms White suggests her doctor saw the environment within which she worked as a significant contributor to her ailment. [16] It is therefore understandable one treatment option the doctor could prescribe would be to remove her from a significant contributing factor, namely her work environment. [17] In the provisions of the Retail Trades Award, No. 1 of 2003 (Consolidated), at Clause 32 - SICK LEAVE, subclause (a)(iii) it states:
[18] In the absence of any contrary medical evidence I feel I must accept the Medical Certificate presented in evidence as a verification of the applicant's illness. As such, she was entitled to claim paid sick leave for the period 18 July 2003 to the 25 July 2003. [19] Accordingly, I hereby order Crafty Critters (Australia) Pty Ltd to pay Margaret Elizabeth White the equivalent of six days pay amounting to $352.80 on or before Friday, 6 August 2004.
James P McAlpine Appearances: Date and place of hearing: |