TASMANIAN INDUSTRIAL COMMISSION

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

Josephine Maree Webb
(T12642 of 2006)

and

Abnash Ramritu

 

DEPUTY PRESIDENT SHELLEY

HOBART, 2 June 2006

Industrial dispute - termination of employment - award breach - order issued

REASONS FOR DECISION

[1] On 6 April 2006, Josephine Maree Webb, (the applicant), applied, pursuant to s.29(1A) of the Industrial Relations Act 1984 ("the Act"), for a hearing before a Commissioner in respect of an industrial dispute with Abnash Ramritu, sole trader (the respondent), arising out of a dispute in relation to termination of employment and the alleged breach of an award or a registered agreement.

[2] A hearing commenced at the Commonwealth Law Courts, 39-41 Davey Street, Hobart on Friday 28 April 2006 at 10.30 am. The respondent did not appear on that date. A further hearing date was set for Friday 11 May at 10.30 am. Again, the respondent did not attend. I am satisfied that the hearing notices were properly served.

[3] At the hearing on 11 May 2006 I determined that the matter would proceed ex parte, pursuant to s.21(2)(e) of the Act. I also determined that I would, in the interests of natural justice, provide the respondent with a copy of the transcript of the proceedings and exhibits and would give him seven days in which to make written submissions if he so wished, which I would take into account when deciding the matter. Copies of the transcript and exhibits were forwarded to the respondent on 17 May 2006 together with correspondence which stated "...if I do not hear from you by 26 May 2006, I will make a decision based on the evidence before me". No submission or correspondence of any nature has been received from the respondent.

BACKGROUND

[4] The applicant, Ms Webb, was employed as a cleaner, working predominantly at Woolworths at Eastlands.

[5] Her employer was a sole trader, contracted by Swan Hill Cleaning Victoria.

[6] The relevant award is the Cleaning and Property Services Award ("the award").

[7] The applicant was employed from 31 January 2006 until 16 March 2006. Her work generally commenced at 3 am and much of the time she worked seven days per week. Finishing times varied. She was paid a flat rate of $17 per hour for all hours worked.

THE EVIDENCE

[8] Ms Webb's evidence was given by way of an unsworn statement. In addition, documents were tendered as evidence.

[9] Ms Webb claimed that the respondent, Abnash Ramritu, unfairly terminated her employment because she had notified Workplace Standards Tasmania of an alleged underpayment of wages.

[10] [Earlier in her employment] she had informed the respondent that she was pregnant and had told him that she wished to continue working until one month before the due date, which is 28 October 2006. That had been agreed to and she was told that she was a valued employee. Ms Webb said that she had been told that she would always have at least 25 hours work. She had no plans to leave and got along with the respondent quite well until Workplace Standards informed him of the complaint.

[11] Ms Webb said she went to work on March 16 2006 and was told: "No, we don't need you". She said there were people there she had never seen before and that she had been there longer than anyone else and had just worked for 19 days straight.

[12] She was seeking compensation by way of lost wages from 16 March until 27 April 2006, which was the date that she took over a contract previously held by the respondent.

[13] In relation to the claim for underpayment of wages, Ms Webb had kept a record of the hours she had worked and estimated that she was owed $1710.97 based on the Cleaning and Property Services Award, Grade 1. The rate that she had been paid was $17 per hour for all hours. Ms Webb said that she should have been paid the award rates of $20.94 per hour for work on a week day, $27.75 an hour for work on a Saturday, $36.65 for work on a Sunday and $47.08 per hour for work on a public holiday, based on the casual rate.

[14] Ms Webb had prepared a detailed claim1 which was based on a diary record she had kept, the original of which was shown to the Commission, with a photocopy retained.2

FINDINGS

Termination of Employment

[15] Section 30(3) of the Act provides that:

"The employment of an employee who has a reasonable expectation of continuing employment must not be terminated unless there is a valid reason for the termination connected with -

(a) the capacity, performance or conduct of the employee: or

(b) the operational requirements of the employer's business."

[16] Section 30(1) of the Act defines "continuing employment" as:

"... employment that is of a continuing or indefinite manner or for which there is no expressed or implied end date to the contract of employment."

[17] In the absence of any evidence to the contrary and after a consideration of the hours Mrs Webb worked, her statement that she was told she was a valued employee, that she would always have at least 25 hours of work and that she had no plans to leave; I find that Ms Webb had a reasonable expectation of continuing employment.

[18] I find that the respondent unfairly dismissed Ms Webb on 16 March 2006, probably for the reason that she had made a complaint to Workplace Standards Tasmania in relation to the alleged underpayment of wages. The making of a complaint to Workplace Standards is not a valid reason for dismissal, indeed, s.86 of the Act makes it unlawful for an employee to be dismissed for that reason.

[19] Ms Webb has now taken over a cleaning contract previously held by the Mr Ramritu. Clearly, reinstatement to her previous position is impracticable. She is seeking compensation for the period of time between the date of dismissal and the date that she took up that contract, a period of four weeks.

[20] I have decided to award compensation of four weeks wages based on an average of the award wages she was due for each of the weeks that she worked, making a total of $2255.40.

Underpayment of Wages

[21] A casual employee is not defined in the Cleaning and Property Services Award, nor is there a definition for casual employment.

[22] S.3 - Interpretation - of the Act defines "casual employee" as:

"unless otherwise prescribed in an award or agreement, means a person who is engaged to work casual employment."

[23] "Casual employment" is defined as:

"unless prescribed otherwise in an award or agreement, means work performed by an employee on an irregular, variable or unpredictable basis or on an as and when required basis;"

[24] Ms Webb's hours were variable and unpredictable insofar as finishing times were concerned. She worked from 3 am until, variously: 7am, 7.30am, 9am, 5am, 5.30am, 6am and 6.30am. She received no paid leave and was told on one occasion not to work that day. I find that the applicant was an employee who was engaged in casual employment and therefore, is entitled to the casual loading.

[25] I accept the detailed diary records kept by the applicant as evidence of hours worked. I find that the relevant award is the Cleaning and Property Services Award and that Ms Webb should have been paid the rate for a Property Services Employee Grade 1, including the relevant penalty rates.

[26] Clause 22 of the award sets out the rates for casual employees. I accept that the hourly rates cited by the applicant are the correct rates. I have calculated the underpayment as set out below, resulting in a figure different to that claimed by the applicant.

 

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 T12642 of 2006, that Abnash Ramritu pay to Joesphine Maree Webb the sum of Two Thousand Two Hundred and Fifty Five Dollars and Forty Cents compensation for unfair dismissal and One Thousand Three Hundred and Forty Five Dollars and Ninety Seven Cents for underpayment of wages by close of business on 23 June 2006.

 

P C Shelley
DEPUTY PRESIDENT

Appearances:
Josephine Maree Webb representing herself

Date and place of hearing:
2006
April 28, May 11
Hobart

1 Exhibit A1
2 Exhibit A2