TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

Matthew Anthony Rose
(T11727 of 2004)

and

Derwent Valley Hospitality

Industrial dispute - application amended - alleged breach of award - application dismissed

REASONS FOR DECISION

[1] On 21 September 2004, Matthew Anthony Rose (the applicant), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of a dispute with Derwent Valley Hospitality (the respondent) arising out of and alleged breach of award or registered agreement.

[2] The matter was listed for hearing at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania on 8 October 2004 (Conciliation Conference) and 22 November 2004.

[3] At the hearing on 8 October 2004, the applicant sought leave to amend the application. The respondent raised no objection. The application was amended.

[4] The applicant alleges the respondent breached the Restaurant Keepers Award (the award) by failing to remunerate him for excessive hours worked between 24 September 2003 and 1 April 2004 inclusive.

[5] The applicant commenced work with the respondent in September 2003. The actual start date is in dispute. He was employed on an annual salary of $45,000. Early in his employment he signed an Australian Workplace Agreement (AWA) outlining his conditions. Later the AWA was found to be un-registered.

[6] The applicant asserted he worked excessive hours over the period of his employment. He claimed he had an agreement with the respondent that would entitle him to time off in lieu when the restaurant became less busy. He also claimed he was denied time off on request, which initiated his resignation. He resigned on the 4 May 2004. The respondent did not dispute this date.

[7] The applicant gave four weeks notice. The respondent asked him to leave their employ on 11 May 2004.

[8] There are few agreed facts in this dispute.

[9] The date of the applicant's engagement by the respondent is in dispute by five days. The veracity of the applicant's record of attendance and timekeeping is in dispute. The applicant's position as chef or head chef, and hence his award level, is in dispute. Even the day on which the restaurant had it's official opening is contested.

WITNESSES

[10] Evidence was adduced from the following persons:

Mr Michael Norton
Mrs Deborah Jane Rose
Mr Matthew Anthony Rose
Ms Denise Helen Jones
Ms Darlene Lesley Saunders

THRESHOLD MATTER

[11] The applicant's claim is based on the reversion of his conditions of employment to the Restaurant Keepers Award in light of an unregistered AWA for a period during his employment. The applicant wants the award rates and conditions be applied to the excessive hours he allegedly worked during that time. However, it is clear to me through the applicant's own admission in evidence, he accepted a contract of employment by way of a salary. He also had an opportunity to opt out of the arrangement when the AWA was found to be flawed, and did not. In my opinion the applicant's terms of employment are award free.

BACKGROUND

[12] The applicant based his case on the acceptance by this Commission of his diary entries logging his alleged hours of work, and the alleged denial of time off in lieu.

[13] Launching a new venture such as a restaurant, I believe, would take considerable energy and a great contribution of one's time by those working there. It is reasonable to assume under a salary arrangement time would be given off in lieu of excessive hours worked. The applicant, in his evidence, alludes to an agreement between himself and the respondent, as well as a confirmation through the respondent's agent, Mr James Graham. This was not disputed, and I have no doubt such an arrangement existed. Recovery of time due tends to be by mutual agreement between the parties to accommodate both the business needs and the needs of the individual.

[14] The applicant told the Commission that his application for time off had been denied. This was not disputed. However, there is no indication of whether the applicant asked on numerous occasions for time off and was denied, or whether he only asked on one occasion and was denied. No evidence was presented of negotiations taking place between the parties regarding time off for the applicant.

[15] The applicant asserted his diary entries of hours worked were accurate. However, under cross-examination the applicant acknowledged errors in the diary entries. He put these down to errors in his transcription of the information into a new diary. He also agreed, eventually that his diary was:

"So it is now a casual, confused and accurate record?---Yes." 1

[16] Mrs Deborah Jane Rose, in her evidence, claimed that the applicant had worked many more hours than were recorded in his diary.

[17] Ms Denise Helen Jones gave evidence indicating the applicant did not often attend the restaurant at 8.00 am, contrary to his diary notes. Ms Jones raised other attendance issues, with regard to the applicant. However, her evidence was predominantly hearsay. I have chosen not to consider these other aspects.

[18] Mr Norton, a witness for the applicant, reading from a statutory declaration he prepared claimed:

"From the time I commenced working at Verandahs in the Valley Matthew would have an average of two and a half days off per week as well as numerous holidays." 2

[19] This is in conflict with the applicant's account of his work pattern.

[20] The applicant asserted he was called in to work on numerous occasions, often needlessly. Mrs Rose's evidence confirmed this.

[21] However, when Mr Norton was questioned about call-ins his response was:

"How few?-From memory, I had a discussion with Matthew about this yesterday, from memory it was round about four times, ..." 3

[22] This conflicts with the applicant's account.

[23] The applicant's date of engagement was in dispute.

[24] The applicant asserted he commenced work on the 24 September 2003 to assist with preparations for the restaurant opening on the 1 October 2003.

[25] The respondent produced evidence by way of a letter of offer4 and a letter of acceptance5, both indicating a start date of 29 September 2003.

[26] The applicant argued two days was not enough time to set up a restaurant. The respondent produced evidence by way of a press cutting from the New Norfolk Gazette6 showing an article regarding the restaurant's official opening on the 8 October 2003. The applicant still contested his start date to be the 24 September 2003 and that the restaurant opened on the 1 October 2003. The applicant cited his diary as evidence and the testimony of his wife, Mrs Rose.

[27] In January 2004, the AWA under which the applicant was working was discovered to be unregistered.

[28] From evidence, the respondent and its employees put considerable effort in to resolving the issue. The AWAs were eventually registered at the end of March 2004. The outcome was the respondent apologised to its employees and undertook to recompense those who were disadvantage.

[29] From the evidence of Ms Darlene Lesley Saunders:

"And when we found out we weren't paying them the right rate what did we do?---We spent hours and hours and hours going over everything and making sure that they were paid at the right rate." 7

"And were the people paid what they were owed?---They were indeed." 8

"... the business was quite open about having made a mistake?-Absolutely." 9

[30] There appears to have been no animosity created by the error within the workforce.

[31] Under cross examination by the respondent, regarding the AWA issue, the applicant responded:

"... what happened to other staff with the AWAs?---Their pays were recalculated and they were back-paid." 10

"Right. Why wasn't yours recalculated according to the award?---I don't know." 11

"Did you request that?---I should have." 12

"Did you request that?---No, because I thought I'd be given the promised time in lieu by yourself." 13

[32] The calculations performed by Workplace Standards Tasmania, on behalf of the applicant, reflect him as a Level 6 under the Restaurant Keepers Award. The respondent challenged this presumption.

[33] The respondent asserted the applicant was not hired as the Head Chef, but only as a Chef. The respondent cited the job advertisement14  as evidence.

[34] However the award does state at Clause 7 - Definitions, subclause (b):

"`Food and Beverage Service Grade 6'

...

"Shall also include a cook solely responsible for other cooks and employees in a single kitchen establishment."

[35] I believe this adequately describes the applicant's position.

FINDINGS

[36] The applicant was employed under a contract, at a salary of $45,000 per annum. His employment conditions were award free.

[37] I am not able to assess whether the timing of the applicant's resignation impeded the respondent from fulfilling its side of the agreement. Undisputed assertions that the applicant had an agreement to have time of in lieu as part of his contract, is accepted. I am unable to determine on what basis time off was denied or if, indeed, this denial was for a specific request or blanket reneging on an agreement.

[38] The respondent appeared to have been open and quick to provide reparation with their employees in a circumstance that could have turned hostile, namely the AWA error.

[39] The respondent also appeared to be generous to the applicant, in giving him a loan advance on his salary at an early stage in his employment and then converting the advance to a bonus.

[40] Confirming the applicant's start date is somewhat easier to determine. In the absence of any evidence from the applicant, apart from his diary, and the existence of a letter of offer and an acceptance from the respondent, I must conclude the applicant's employment with the respondent commenced on the 29 September 2003.

[41] The evidence has shown Mr Rose's diary notes to be less than accurate and quite confused. It is not possible for me to verify the information contained in the diary. The only possible way would have been to match the applicant's diary input with the roster. However no paper or electronic copy of the rosters exist.

[42] Witness evidence regarding call-ins, working hours, holidays and starting times contradict the applicant's assertions in each of these areas. It appears he has somewhat exaggerated his time involvement. The applicant also made exaggerated claims with regards to the Office of the Employment Advocate's formal investigation of the respondent, and with his references to the Workplace Health and Safety's pursuit of the respondent.

[43] I find the applicant has not proven, to the Commission's satisfaction, that he is owed payment for excessive hours worked for the respondent.

[44] The application is dismissed, and I so order.

James P McAlpine
COMMISSIONER

Appearances:
Mr Matthew Anthony Rose for himself
Mrs L Grimley (8.10.04) and Mr J Grimley (8.10.04 and 22.11.04) for Derwent Valley Hospitality

Date and place of hearing:
2004
October 8
November 22
Hobart