TASMANIAN INDUSTRIAL COMMISSION

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

Heather Jayne Nielsen
(T12443 of 2005)

and

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

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 2 December 2005, Heather Jayne Nielsen (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] 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.

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

[4] A hearing was conducted on 8 December 2005. Ms HJ Nielsen represented herself. 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.

[5] On 15 December 2005 a letter enclosing a copy of the transcript was sent to the respondent, 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"

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

BACKGROUND

[7] The applicant had worked for the respondent from 4 April 2005 until her termination on 19 October 2005.

[8] The applicant asserted she had been given two 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.

[9] The applicant asserted she was employed part time. Her data showed she worked approximately 34 hours per week, on average. 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.

[10] 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 A6.

[11] The applicant further asserted, she was not paid outstanding annual leave amounting to 83.08 hours, when the business ceased trading. She also asserted that although superannuation had been shown on her pay advice, that money was never deposited into her nominated superannuation fund for the whole time she was employed.

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

FINDINGS

[13] 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.

[14] 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.

[15] There is insufficient 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.

[16] 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.

[17] The applicant's data indicated 73.23 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.

[18] I accept the applicant's evidence that no superannuation had been paid by her employer for the duration of her employment, despite her pay slips showing a contribution. I find the respondent breached the award by not making regular contributions to a superannuation fund on behalf of the applicant.

[19] 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'.

[20] I turn to the issue of redundancy. I find the applicant is not entitled to redundancy having been employed for less than one year.

ORDER

Where applicable, the following orders are based on an average 34-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 Heather Jayne Nielsen:

• Two weeks wages in lieu of reasonable notice, a sum of $941.80;

• 73.23 hours in accrued annual leave, a sum of $1,014.24;

• Underpayment of her weekly wage rate at `Food and Beverage Service Grade 1' from 1 September 2005, a sum of $396.64.

• 9% of her approximate total earnings for superannuation, a sum of $989.99.

The total sum of three thousand three hundred and forty two dollars and sixty seven cents ($3,342.67) to be paid by 5.00 pm on Wednesday, 22 February 2006.

James P McAlpine

COMMISSIONER

Appearances:
Heather Jayne Nielsen for herself
Mr P Baker for the Minister for Justice and Industrial Relations

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