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Tasmanian Industrial Commission

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T12390

 

TASMANIAN INDUSTRIAL COMMISSION

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

Cynthia Siedentopf
(T12390 of 2005)

and

RJC Trust & LL Trust; and Pisera Pty Ltd t/a The Cat and Fiddle Food Court

 

COMMISSIONER JP McALPINE

HOBART, 3 February 2006

Industrial dispute - severance pay in respect of termination of employment as a result of redundancy - alleged breach of an award or a registered agreement - Order issued

REASONS FOR DECISION

[1] On 9 November 2005, Cynthia Siedentopf (the applicant), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of a dispute with RJC Trust & LL Trust; and Pisera Pty Ltd t/a The Cat and Fiddle Food Court (the respondent) re severance pay in respect of termination of employment as a result of redundancy and alleged breach of an award or a registered agreement.

[2] The matter was listed for hearing at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania on 15 November 2005 (conciliation conference) and 8 December 2005.

[3] On or about 18 October 2005 the applicant was informed that the lease for the premises known as the Cat and Fiddle Food Court was about to expire and, as a consequence, the business of the respondent would close down.

[4] The business ceased operation on 21 October 2005 and, as a result, the applicant's employment was terminated.

[5] A conciliation conference was set down for 25 November 2005. Ms C Siedentopf represented herself. The respondent, or a representative for or on its behalf, did not attend or enter an appearance.

[6] On 25 November 2005 the Commission posted a letter to the respondent, which stated as follows:

"A hearing was convened regarding the above matters on Friday 25 November 2005 at 9.30 am. On this date, all four applicants were present but the respondent employer made no representation.

The matter will be re-listed on Thursday 8 December 2005 at 9.30 am and your presence is required. If you fail to attend, I will make a decision on the information before me."

[7] A further hearing was conducted on 8 December 2005, again the respondent did not appear, nor send a representative on its behalf. Mr P Baker entered an appearance for and on behalf of the Minister for Industrial Relations. Mr Baker supported the applicant in presenting her case.

[8] On 15 December 2005 a letter enclosing a copy of the transcript was sent to the respondent, again requesting comment as follows:

"These matters were listed for hearing in the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania on 25 November and 8 December 2005.

The respondents were not present, nor were they represented in the proceedings. I was however quite satisfied that the respondents had been properly served with the notice of hearing.

I advise that the relevant section of the Industrial Relations Act 1984 provides that:

"(2) Without prejudice to the generality of subsection (1), the Commission may, in relation to a matter before it -

(e) proceed to hear and determine the matter or any part of the matter in the absence of any party to it who has been duly summoned to appear or been duly served with notice of those proceedings;"

In the circumstances I determined that on 8 December 2005 the matters should proceed.

Please find enclose a verbatim transcript of the proceedings, which is self-explanatory.

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 Friday, 13 January 2005.

In the event you choose not to make a submission, the matters will be determined on the basis of the material before me.

Yours faithfully

James P McAlpine
COMMISSIONER

Enc:
Transcript of proceedings held on 8 December 2005"

[9] No reply was received by the expiry of the time extended to the respondent.

BACKGROUND

[10] The applicant had worked for the respondent from 10 February 2004 until her termination on 19 October 2005.

[11] The applicant asserted she had been given one day's notice and she was further informed by the respondent that the lease for the area occupied by it's business was to end on 21 October 2005 and, as a consequence, business would cease trading.

[12] The applicant asserted she was employed full time, with approximately 56 hours per week. She also asserted, she was employed under an unregistered Australian Workplace Agreement at $13.20 flat rate per hour with no penalty payments. It was brought to the Commission's notice that the rate of $13.20 had only been paid from 3 October 2005 and not from 1 August 2005 when the 2005 Wage Case became effective.

[13] The applicant was engaged as a `Food and Beverage Service Grade 1' employee, as prescribed in the Restaurant Keepers Award (the award), but asserted the work she performed was at `Food and Beverage Service Grade 2' of that award. The applicant submitted a list of duties that formed part of Exhibit A4.

[14] The applicant further asserted, she was not paid outstanding annual leave amounting to 6 weeks, when the business ceased trading. She also asserted that although superannuation had been shown on her pay advice, only $151.00 was deposited into her nominated superannuation fund for the whole time she was employed.

[15] This assertion was check with TASPLAN, the nominated superannuation fund, in statements showing no contributions in the period in question. There was no evidence of $151 payment, however, I accept the applicant's assertion.

[16] The applicant sought payment for inadequate notice, redundancy, superannuation, penalty rates and accrued annual leave entitlements.

FINDINGS

[17] The respondent failed to provide the Commission with any response to the assertions made by the applicant, as contained in the transcripts of proceedings. In the absence of any counter evidence from the respondent, I will rely on the best evidence as attested by the applicant.

[18] It would be reasonable to assume the respondent would have been well aware the current lease on its business was about to end. The principle that an employer should give the maximum possible notice in the case of redundancy is well establish in T6674-76 of 1996 and T6691 of 1997, Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch v Fosseys (Australia) Pty Ltd Westwood P, 18 July 1977. In giving the applicant one shift notice, I find the respondent failed to give the applicant reasonable notice of the imminent closure of the business.

[19] There is sufficient data contained in the pay advice presented by the applicant to establish if the respondent breached the award by failing to pay penalty rates as prescribed in Clause 25 - Overtime and Other Penalty Rates of that award. However, there is insufficient detail to ascertain a quantum.

[20] Evidence contained in the pay advice presented by the applicant established the respondent failed to pay the State Wage increase from 1 August 2005. I find the respondent did breach the award by failing to pay the State Wage increase from 1 August 2005.

[21] The applicant's data indicated 166.6 hours of annual leave owing to her. I find the respondent breached the award by not paying the applicant all her annual leave entitlements on termination.

[22] I accept the applicant's evidence that only $151 of superannuation had been paid by her employer for the duration of her employment, despite her pay slips showing a regular contribution. I find the respondent breached the award by not making regular contributions to a superannuation fund on behalf of the applicant.

[23] I turn to the issue of classification. It is clear to me the duties undertaken by the applicant were aligned to those defined by `Food and Beverage Service Grade 2' of the award. I find the respondent breached the award by erroneously paying the applicant `Food and Beverage Service Grade 1' wage rate, while functioning at a `Food and Beverage Service Grade 2'.

[24] I turn to the issue of redundancy. I find the applicant is entitled to redundancy.

ORDER

Where applicable, the following orders are based on a 38-hour week at the `Food and Beverage Service Grade 2' rate, $13.85 per hour.

I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, RJC Trust & LL Trust; and Pisera Pty Ltd t/a The Cat and Fiddle Food Court pay to Cynthia Siedentopf:

  • Two weeks wages in lieu of reasonable notice, a sum of $1052.60;

  • 166.6 hours in accrued annual leave, a sum of $2,307.40;

  • Underpayment of her weekly wage rate at `Food and Beverage Service Grade 1' from 1 September 2005, a sum of $653.29;

  • Redundancy at two weeks wages for each completed year of service, a sum of $1,052.60;

  • 9% of her approximate total earnings for superannuation, a sum of $4,915.66.

The total sum of nine thousand nine hundred and eighty one dollars and fifty five cents ($9,981.55) to be paid by 5.00 pm on Wednesday, 22 February 2006.

 

James P McAlpine
COMMISSIONER

Appearances:
Cynthia Siedentopf for herself
Mr P Baker for the Minister for Justice and Industrial Relations

Date and place of hearing:
2006
November 15
December 8
Hobart