T11673
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Amanda Pearl Manning and Watervale Pty Ltd
Industrial dispute - alleged unfair termination - severance pay - long service leave - annual leave - order REASONS FOR DECISION [1] On 19 August 2004, Amanda Pearl Manning (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 Watervale Pty Ltd trading as A H Pease Shoe Store arising out of the alleged unfair termination of her employment, severance pay in respect of termination of employment as a result of redundancy, alleged breach of award and a dispute over the entitlement to long service or payment instead of any such leave. [2] This matter was initially listed for a conciliation conference on 22 September 2004, but was adjourned at the request of the applicant to enable her to obtain representation. When the conciliation conference commenced on 27 October 2004, Ms D Butler, of the Launceston Community Legal Centre, appeared for the applicant and Mr C Bartlett, solicitor, sought and was granted leave to appear for the employer. [3] Mr Bartlett advised that the Company was about to be placed in receivership and as a consequence sought an adjournment in order that he obtain instructions from the Liquidator. The adjournment application was not opposed. [4] The matter resumed on 10 February 2005. The Commission had previously been verbally advised that the Liquidator would not be present and as a consequence I determined that the matter would be decided on the evidence and argument that was before me. [5] Sworn evidence was taken from Ms Manning. [6] Ms Manning said she commenced employment as a sales assistant in March or April 1989. Initially she was engaged on a casual basis. After "four or five years" the employer introduced a roster and the work pattern became quite regular, averaging 29 hours per week. [7] Ms Manning said she was paid at the rate of $12.50 per hour for the duration of her employment, and at no stage was there any adjustment in line with State Wage Case decisions. [8] Apart from a two-week holiday in 2000, which was eventually paid, Ms Manning did not receive any paid leave for the duration of her employment, despite repeated requests. [9] On 5 June 2002 Ms Manning wrote to the employer advising that she would be commencing maternity leave on 5 July 2002.1 The anticipated duration of the leave was six months, with a review after three months. [10] Approximately one month after the birth of her child, Ms Manning commenced "doing the accounts". This task occupied approximately four hours per month. [11] Ms Manning said she repeatedly asked the employer when she could return to her previous position, and for the employer to address the question of her accrued entitlements. These approaches were unsuccessful. [12] On 30 June 2003 Ms Manning wrote to the employer seeking payment for accrued entitlements and a redundancy payment. She said this approach was unsuccessful. As a consequence Ms Manning lodged a complaint with Workplace Standards Tasmania and subsequently an application with the Industrial Commission. [13] In closing submissions Ms Butler said that Ms Manning was employed on a casual basis for the first six months of employment. Thereafter her employment was in accordance with the regular pattern of a part-time employee, and hence annual leave accrues from that point. [14] Ms Butler submitted that the failure to return Ms manning to her previous position amounted to a redundancy, and she was therefore entitled to a redundancy payment calculated on the basis of two weeks' pay for each completed year of service. Ms Butler cited Tata v Watts Communications Australia Pty Limited [In Liquidation]2; Springer & Ors. v Information Solution Works Pty ltd [In Liquidation]3 and AFMEPKIU v Weller Engineering Pty Ltd [Receivers and Managers appointed]4 as authority for this proposition and the jurisdictional capacity of the Commission to make orders against companies in liquidation. [15] Ms Butler further submitted that Ms Manning had an entitlement to a pro rata long service leave payment in accordance with the Long Service Leave Act 1976. [16] Clause 7 of the Retail Trades Award contains the following definitions:
[17] It is common ground that Ms Manning commenced employment on a casual basis. The question to be determined is when, or if, her employment status changed to that of a part-time employee. [18] Ms Manning said she started working on a regular roster four or five years after commencement. [19] An examination of Group Certificates tendered by the applicant point to a pattern of regular earnings from 1994 onwards.5 [20] Ms Manning was paid at the rate of $12.50 ph. This hourly rate was in excess of the prescribed casual hourly rate for Retail Employee Grade 2, up until 11 July 1995. From that point on the casual hourly rate was in excess of $12.50, and became substantially so by the time Ms Manning went on maternity leave [$2.40 ph]. [21] Having regard to all the available evidence I determine that Ms Manning became a part-time employee from 1 July 2004, and hence began to accrue annual leave from that point. Annual Leave [22] From 1 July 1994 until 1 July 2002, the accrued annual leave is 32 weeks, less the two weeks taken in 2000, equals 30 weeks. [23] Ms Manning worked 29 hours per week at the rate of $12.50 per hour. This equates to a weekly rate of $362.50. [24] The accrued annual leave is therefore equivalent to a payment of $10875. [25] To this must be added the 17.5% annual leave loading, which equates to $2030. [26] The total payment owing in respect of annual leave is therefore $12905. Long Service Leave [27] The circumstances of Ms Manning's termination clearly satisfy the requirements for a pro rata entitlement under the Long Service Leave Act 1976. [28] Ms Manning was employed for a total of 13.25 years, up until the time she proceeded on maternity leave. This amounts to a pro rata entitlement of 11.48 weeks' long service leave, or an equivalent payment of $4161.50. Redundancy [29] I am satisfied that Ms Manning's services were terminated as a result of redundancy. Nothing was put to me as reason why I should depart from the approach taken in the three decisions referred to above. [30] I determine that Ms Manning is entitled to a redundancy payment calculated on the basis of two weeks' pay for each completed year of service. However I consider the years of service should commence from the time Ms Manning became a part-time employee, a total of eight years. [31] On this basis the redundancy payment is $5800. ORDER Pursuant to Section 31 of the Industrial Relations Act 1984, I hereby order that Watervale Pty Ltd trading as A H Pease Shoe Store (in Liquidation), C/- Davern Dixon, Chartered Accountants, 26 Elizabeth Street, Launceston, Tasmania 7250 pay to Amanda Pearl Manning, the following:
Such payments to be made within 21 days of the date of this decision.
Tim Abey Appearances: Date and Place of Hearing: 1 Exhibit A2 |