TASMANIAN INDUSTRIAL COMMISSION

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

Angela Denise Wilson
(T12001 of 2005)

and

Dean Chamley & Associates Pty Ltd

Industrial dispute - alleged breach of award or registered agreement - Order issued

REASONS FOR DECISION

[1] On 24 March 2005, Angela Denise Wilson (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 Dean Chamley & Associates Pty Ltd (the respondent) arising out of an alleged breach of award or registered agreement.

[2] The matter was listed for hearing on 27 April 2005 (Conciliation Conference) and 17 June 2005 at the Magistrates Court, 19 King Edward Street, Ulverstone, Tasmania.

[3] The applicant commenced employment with the respondent, in October 2003. She resigned from her position as Sales Consultant on 3 December 2004 and left the same day.

[4] The applicant did not have a contract of employment.

[5] The applicant did not give the respondent the required one week's notice as provided by the Estate Agent's Award (the award).

[6] The applicant claims she is owed payment for annual leave not taken, leave loading and outstanding commission payments.

[7] Mr D Chamley, on behalf of the respondent, conceded some leave payment was due, but should be discounted against commission owed. He also concedes commissions for unconditional sales amounting to $2345.00 is due. However, he challenged the validity of claims by the applicant of a further $4313.00 in commissions.

BACKGROUND

[8] There is no dispute the applicant was engaged in October 2003 and that she resigned her employment on 3 December 2004. There is no dispute she left work on the morning of 3 December 2004 and did not afford the respondent one week's notice as is required by the terms of the award. It is not contested she had taken two days leave during the term her employment. It is not contested the applicant did not have a Letter of Appointment in accordance with Clause 32(c) of the award.

[9] It is not contested the applicant is owed commissions for the following property sales which were unconditional on her resignation:

Main Rd, Penguin $545
15 Cotton St, Wynyard $750
Inglis St, Wynyard $1350
Less arrears $(300)
Totalling $2345

[10] The applicant asserts she is owed leave of 35 days, plus leave loading. The respondent disputes the quantum of leave claimed.

[11] The applicant also asserts she is owed commissions on the following properties:

Lot 1, 5 Saunders St, Wynyard $1636
7/9 Townsend Pl, Burnie $1350
65 Stirling St, Burnie $727
2/32 Spencer St, Burnie $600
Totalling $4313

[12] Mr Chamley asserted that at the time of the applicant's resignation these properties were still conditional. He supplied facsimiles from each of the contested property vendors lawyers to the Commission on 8 July 2005, which confirmed the dates when the sale of the various properties became unconditional, viz:

Lot 1, 5 Saunders St, Wynyard 15th December 2004
7/9 Townsend Pl, Burnie 9th December 2004
65 Stirling St, Burnie 21st December 2004
2/32 Spencer St, Burnie 13th December 2004

[13] In correspondence dated 18 July 2005, the applicant accepted the sale of the above properties only became unconditional after 3 December 2004.

[14] Mr Chamley asserted that according to the award the respondent is entitled to recoup one week's wages in lieu of notice. He also asserted the respondent is entitled to recoup a day's wage for 3 December 2004 for which the applicant was paid, but did not work.

FINDINGS

[15] The applicant terminated her employment on 3 December 2004 by resigning and taking no further part in the business of the respondent from that day. The week's wage in lieu of notice forfeited is a financial settlement and does not extend the applicant's employment relationship with the respondent beyond her last day of work. I find the employment relationship between the respondent and the applicant ceased on 3 December 2005. It follows that the disputed property sales namely:

Lot 1, 5 Saunders St, Wynyard
7/9 Townsend Pl, Burnie
65 Stirling St, Burnie
2/32 Spencer St, Burnie

were still conditional after the applicant's employment ceased. I dismiss the applicant's claim for commission over these properties.

[16] The applicant was employed from October 2003 until 3 December 2004. From wage slips supplied to the Commission she received her first four weeks' wage, week ending 7 November 2003. It follows she commenced employment on Monday, 13 October 2003. On her resignation she had completed 13 months employment with the respondent.

[17] The applicant is liable to forfeit one week's wage in lieu of notice, as provided for in Clause 32(a) of the award. She is also liable to reimburse the respondent for wages paid for 3 December 2004, but not worked by her. As is provided for in Clause 9(f)(ii) of the award, leave loading "shall not apply to proportionate leave on termination of service", which reflects the instant situation. I dismiss the applicant's claim for leave loading.

[18] The award stipulates in Clause 9(a), a period of 28 consecutive days is accrued after 12 months continuous service. Twenty-eight consecutive days is equivalent to four weeks' wage. The applicant had accrued pro rata 4.33 weeks leave, in line with the provisions of Clause 9(h) of the award. I find the applicant is owed:

Accrued leave 4.33 weeks

LESS 2 days leave taken (0.4) weeks
       1 day for 3 December 2004 (0.2) weeks
       1 week in lieu of notice (1) week

leaving a total of 2.73 weeks at ordinary time of $467.40 per week being $1276.00.

[19] It was the respondent's position that annual leave entitlements be treated akin to payment of the minimum wage and, as such, should be discounted against commissions earned. Refer to Clause 32(c)(vi) of the award. However, in Clause 33 - General Conditions, it states:

"The provisions of the following clauses in Division A shall also apply to employees in this (Division B) division: (my italics)

Clause No: 9. Annual Leave"

[20] The award is silent on discounting annual leave from commissions earned. It follows the accrual of annual leave is over and above wages and such recompense for annual leave is not subject to discounting against commission.

[21] The respondent has agreed that the following commissions are due to the applicant, less any arrears:

Main Rd, Penguin $545
15 Cotton St, Wynyard $750
Inglis St, Wynyard $1350
Less arrears $(300)
Totalling $2345

ORDER

Pursuant to s.31 of the Industrial Relations Act 1984, I herby order that Dean Chamley & Associates Pty Ltd pay to Angela Denise Wilson an amount of three thousand six hundred and twenty one dollars ($3,621.00). Such payment is to be made not later than 5pm on Friday, 5 August 2005.

James P McAlpine
COMMISSIONER

Appearances:
Angela Denise Wilson for herself
Mr D Chamley and Mrs A Chamley for Dean Chamley & Associates Pty Ltd

Date and place of hearing:
2005
April 27
June 17
Ulverstone