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Tasmanian Industrial Commission

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T12177

 

TASMANIAN INDUSTRIAL COMMISSION

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

Minister for Infrastructure, Energy and Resources
(T12177 of 2005)

and

Murtrans Pty Ltd

 

DEPUTY PRESIDENT SHELLEY

 

HOBART 31 October 2005

Industrial dispute - breach of award - order issued

REASONS FOR DECISION

[1] On 25 July 2005 the Minister for Infrastructure, Energy and Resources (the applicant), applied, pursuant to s.29(1C) of the Industrial Relations Act 1984 ("the Act"), for a hearing before a Commissioner in respect of an industrial dispute with Murtrans Pty Ltd, (the respondent) arising out of the alleged breach of the Carriers Award.

[2] A hearing commenced at the Supreme Court, Cameron Street, Launceston, Tasmania on Monday 22 August 2005.

[3] At the hearing Mr G Williams represented the Minister for Infrastructure, Energy and Resources, together with Mr John Coffey. No appearance was entered on behalf of the respondent. I was satisfied that the respondent had received notice of the hearing pursuant to s29(2)(b) of the Act and determined that the hearing should proceed in the absence of the respondent as provided for in s21(2)(e). I also determined that the respondent would be provided with transcript of the proceedings and be given 14 days in which to respond.

[4] Towards the end of the hearing a message was received from the respondent, to the effect that their legal counsel did not inform them that the hearing was on, and asking that it be changed to another date. As I said on transcript:

"...which is a bit odd because the hearing notice was sent to the place of business not to their legal counsel...well, clearly we can't because the proceedings are now on foot..."

[5] On 30 August 2005 a letter was sent to the respondent, together with copies of transcript and exhibits, in which I said:

"...I am prepared to take into consideration any written submission you may wish to make, provided that such submission is lodged with the Commission not later than 5.00 pm on Tuesday, 13 September 2005"

[6] No response has been received from the respondent.

BACKGROUND

[7] The applicant alleged that the respondent had failed to pay all wages due to an employee, Mr Shane Winston Franklin, who should have been paid at the rate specified for a Grade 2 employee under the terms of the Carriers Award.

[8] Mr Franklin commenced employment with Murtrans Pty Ltd on 22 October 2003. His employment ceased on 20 May 2004. He resigned, without notice, because he thought that the respondent was not paying him correctly and was changing the record of the hours he worked.

[9] The amount claimed is $2025.85.

THE EVIDENCE

[10] Mr Williams presented evidence by way of a group certificate showing that Mr Franklin had been an employee of the respondent.

Mr Franklin

[11] Mr Franklin gave sworn evidence. He said that he was a full time employee with the respondent, employed to drive a van making deliveries around Launceston in the mornings, and then would cart freight to Hobart, returning to Launceston each day. He would return each day to the respondent's premises, where he would record his finish time in a "timebook".

[12] A copy of the time and wages book was tendered as evidence (Exhibit A3). Mr Franklin testified that he wrote down the time he started each day and the time he finished. The respondent would record calculations in the book.

[13] According to Mr Franklin's evidence, there was no fixed finishing time. He was instructed to keep working each day until he finished, which was when he arrived back in Launceston following the Hobart run.

[14] He said that on the day after New Year's Day he was told not to go to work, because there was no work available. He was not paid for that day.

[15] Mr Franklin testified that he spoken to his employer about concerns with his wages. He said that no arrears had been paid for two weeks when he was paid a rate that was less than the hourly rate in the award. He raised concerns about the fact that he was a full-time employee, but on some weeks he was paid for less than 38 hours. He had also spoken with his employer about changes that were made to his time records. Figures were whited out and other figures written over the top. Mr Franklin agreed that this was because they had started reducing his time by a half hour per day for a lunch break.

"Yes, I had to start doing that, that's right, I got told from here to start taking that half-hour lunch break. This is where I was taking a 15-minute break going down and another 15-minute break coming back, that's how he preferred me to do it. So that is how I did it, I would just take a break and normally just eat my lunch as I was driving along the road.

Okay. So you still weren't actually having a 30-minute straight break for lunch?---That's correct.

You were having a spell - a rest spell in two parts for 15 minutes?---Yes.

And they have deducted that from your hours worked?---Yes, because that was how they instructed me in the end to do it. Well, he said, I could take the half-hour break if I wanted to but he would prefer me to take a 15-minute break going down and another 15-minute break coming back, that's how he preferred me to do it."1

[16] Mr Franklin spoke with his employer about his concerns that his records were being altered to show that a half hour break was taken. He was upset with the way that he was being treated. As a result he rang them one morning and told them that he was no longer going to work for them. He was of the view that he was being paid incorrectly.

[17] He was not paid any annual leave when he left.

Ms Wells

[18] Amanda Maree Wells, an Inspector with Workplace Standards, gave evidence that she had investigated an alleged underpayment of wages. She attested she had telephoned and written to the respondent, and had obtained records from them, upon which she had based the calculations. A copy of the calculations was sent to the respondent, but no response was received. A further letter was sent to the respondent by certified mail, asking that payment be made and indicating that failure to do so may result in an application being made to this Commission.2

[19] Ms Wells outlined in detail the basis of the calculation of the claim for underpayment of wages, which included penalty rates and pro rata annual leave.

SUBMISSION

[20] Mr Williams submitted that the employee should be paid for 38 hours for those weeks where he had worked for less than 38 hours.

[21] He said that the net effect of the changes the employer had made to the employee's timesheets was nil in monetary terms, but that it had appeared to the employee that his paid ordinary hours were reduced by .4 each day.

[22] Mr Williams submitted that it was the actions of the employer that had brought about the termination of employment, therefore it was a constructive dismissal and Mr Franklin should not have to forfeit wages in lieu of notice.

[23] The evidence has shown that Mr Franklin was a full time employee, employed under the terms of the Carriers Award Division A - General Cartage, Grade 2. He terminated his employment without notice and is entitled to pro-rata annual leave, under the terms of Clause 11 - Annual Leave:

"(a) Period of Leave

A period of 28 consecutive days leave shall be allowed annually to an employee after 12 months continuous service (less the period of annual leave) as an employee on weekly hiring provided that leave shall accrue and be calculated on the basis of 2.923 hours for each five ordinary working days worked of continuous service.

...

(h) Proportionate Payment on Termination

Proportionate payment shall be made to an employee on weekly hiring who after one month of continuous service in the first qualifying 12 monthly period:

(i) leaves his/her employment, or his/her employment is terminated by his/her employer through no fault of the employee; or

..."

[24] Mr Williams sought an order for payment by the respondent to Mr Franklin of $2025.84.

FINDINGS

[25] In the absence of anything to the contrary, I accept the submissions and evidence of the applicant in respect of the application of the Carriers Award, classification level, appropriate weekly rates, entitlement to pro rata annual leave, entitlement to be paid for 38 ordinary hours in every week, penalty rates to be applied and for payment for the day Mr Franklin was instructed not to attend work.

[26] Whilst Mr Franklin may have had concerns that his time sheets were altered so that it appeared that he was taking a lunch break when he was not, it did not result in him losing wages, because the employer showed the ordinary hours as 7.6 (38 divided by 5) but added the half hour shown as a lunch break into overtime payments.

[27] I intend to make an order, but not for the amount sought because I am of the view that Mr Franklin should forfeit one week's wages because of the failure to give his employer notice of the termination of his employment.

[28] I have considered the applicant's submission that the termination of Mr Franklin's employment came about as a result of the actions of the employer and therefore was a constructive dismissal, thus obviating the requirement for the employee to give a week's notice to the employer as required by Clause 18 - Contract of Employment:

"(a) Weekly Employment

...

(ii) Employment shall be terminated by a week's notice on either side given at any time during the week or by the payment or forfeiture of a week's wages, as the case may be. This shall not affect the right of the employer to dismiss any employee without notice for malingering, inefficiency, neglect of duty, or misconduct, and in such cases all moneys due shall be paid to the employee forthwith."

[29] Whilst the evidence was that it was as a result of the employer's actions in underpaying wages and altering timesheets that the employee resigned, I am not persuaded that the employer's actions were of such a nature that the employee had no option but to resign immediately without giving notice. In order for a constructive dismissal argument to succeed it must be shown that the termination of employment was the result of the actions of the employer and that those actions are such that the employee feels that they have no option but to resign. The altering of the timesheets resulted in no detriment to Mr Franklin. Concerns in relation to shortfalls in wages had been an ongoing issue. Given that, I do not think it can be argued that he had no option but to leave without giving notice. I reject the submission and find that the claim should be reduced to the extent of one week's ordinary pay in lieu of notice.

[30] The amount claimed by the respondent is $2025.84. The weekly rate for Grade 2 at the relevant time was $497.50. The amount of the order, therefore, will be $1528.34.

ORDER

I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, in full and final settlement of the matter referred to in T12177 of 2005 that Murtrans Pty Ltd pay to Shane Winston Franklin the sum of One Thousand Five Hundred and Twenty Eight Dollars and Thirty Four Cents by close of business on 21 November 2005.

P C Shelley
DEPUTY PRESIDENT

Appearances:
Mr G Williams representing the Minister for Infrastructure, Energy and Resources with Mr J Coffey and Ms A Wells for Workplace Standards together with Mr S Franklin

Date and place of hearing:
2005
August 22
Launceston

1 Transcript PN204-207
2 Exhibit A6