T2756 T2757 T2762 T2764
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Manisha Baijal Amit Baijal William Hilton Jones Hee-Rha (Willie) Moon and Australia Tasmania College of Technology Pty Ltd
Industrial dispute - unpaid wages - redundancy - accumulated leave - notice - superannuation - reimbursement of expenses - order REASONS FOR DECISION [1] On 16 August 2006, Manisha Baijal and Amit Baijal, on 21 August 2006, William Hilton Jones, and on 23 August 2006, Hee-Rha (Willie) Moon (the applicants) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Australia Tasmania College of Technology Pty Ltd trading as Australia Tasmania College of Technology, arising out of the termination of their employment. [2] When this matter came on for hearing, the applicants were self-represented. The employer was not represented. However the employer had been properly served with notices of hearing and telephone contact had been made with Mr Greg Moore, a director of the company. [3] As I was quite satisfied that the employer had made a conscious decision not to be represented I decided to hear the applications. At the conclusion of the hearing I indicated that the transcript and supporting documentation would be forwarded to the employer inviting a written submission by a nominated date. This was done by correspondence dated 30 August 2006. [4] As no submission had been received by the nominated date (6 September 2006) I have decided to determine the matter on the material that is before the Commission. Background [5] Mr Amit Baijal outlined the background of events that ultimately led to the applications before the Commission. [6] He said that he and his wife had been persuaded to leave secure full-time employment in Sydney and come to Tasmania and establish the college. The business plan was based on "thousands" of overseas fee paying students being attracted to the college. Mr Baijal's brief was to put together a team of people who could efficiently establish the college and obtain all necessary accreditation. [7] Whilst the project initially looked sound, it quickly became apparent that there was insufficient operating and infrastructure capital to effectively establish the college. Staff were paid "intermittently" and in at least one case not at all. [8] The staff made numerous approaches to the directors concerning the non-payment of salaries. They were apparently told that investments would shortly be secured which would ensure the ongoing viability of the college. Mr Baijal said:1
[9] No payment at all was made to any of the applicants after early May 2006. Notwithstanding, the applicants either continued to work, or alternatively were available to work up until they took matters into their own hands in August 2006. [10] Mr Baijal personally took out a loan to repay monies paid by overseas students for a course of study that could not be provided. This money paid in advance had apparently been used elsewhere by the directors of the company. Mr Baijal said that he took this action so as to preserve his own reputation and that of the Australian education system. [11] The Department of Education conducted an audit in March 2006. Mr Baijal said:2
[12] In June 2006 the Commonwealth Government advised "the CRICOS had been withdrawn". This meant that the college no longer had permission to enrol overseas students. Findings [13] I am satisfied that the Commission does have jurisdiction to hear and determine these applications in that they concern an "industrial dispute relating to the termination of employment of the former employee" [s.29(1A)(a)]. [14] I am also satisfied that the applicants all performed administrative work and hence the Clerical and Administrative Employees (Private Sector) Award would apply. [15] There are however a number of jurisdictional issues which must be addressed. [16] The Commission does not have jurisdiction to enforce a common law contract, but it does have jurisdiction to issue an order to settle an industrial dispute. Two of the contracts provided for a payment of 6 months salary in the event that the company terminates the contract for any reason other that the incumbent breaking any laws. This is a provision that goes beyond the prevailing standards of this Commission in relation to redundancy payments and for that reason it is not something I am prepared to order. That is not to say that the amount is not necessarily owed, but rather, this Commission does not have the jurisdiction to enforce it. [17] I am not satisfied in the current circumstances that the Commission has jurisdiction to make an order in respect of the reimbursement of expenses. This is essentially a commercial arrangement between the parties. [18] A number of the applicants assert that PAYG taxation has not been remitted to the Australian Taxation Office. Again that is not a matter for which the Commission can provide a remedy. [19] The award referred to above does have a clause relating to superannuation. I am therefore satisfied that the Commission does have jurisdiction in respect of unpaid superannuation. [20] I now turn to the specific applications. Manisha Baijal [21] The applicant commenced employment on 21 March 2005 in the role of Registrar. On 11 August 2006 she wrote to Mr Greg Moore stating:
[22] The claim was subsequently modified in correspondence to Mr Moore dated 22 August 2006. The claim, as explained in the hearing is as follows: 1. Fifty weeks and four days unpaid wages $48,818.80 2. Seven weeks annual leave $6,727.00 3. Four weeks severance pay $3,844.00 4. Twenty six weeks redundancy pay $24,986.00 5. Seventy Three weeks unpaid Superannuation $6,054.30 6. BALANCE OF UNPAID PAYG TAX $1,294.80 TOTAL $91,724.90 [23] The four weeks' severance pay claim is consistent with the notice requirements under s.47(AH) of the Act. [24] For reasons previously outlined, I am not prepared to grant the 26 weeks' redundancy payment claimed. Consistent with s.47AH(2) of the Act, I will order payment of two weeks for redundancy. [25] In the absence of any contrary evidence, I accept the balance of the claim. Amit Baijal [26] The applicant commenced employment on 11 April 2005 in the position of General Manager, Australia. On 11 August he wrote to Mr Greg Moore in the following terms:
[27] This claim was amended in correspondence dated 22 August 2006. The amended claim, as presented to the Commission, is as follows: 1. Seventeen and half weeks unpaid wages $26,897.50 2. Seven weeks annual leave $10,769.23 3. Four weeks severance pay $6,153.88 4. Twenty six weeks redundancy pay $40,000.00 5. Seventy weeks unpaid Superannuation $9,692.20 6. BALANCE OF UNPAID PAYG TAX $12,906.70 TOTAL $106,419.51 [28] For reasons already advanced, I am not prepared to award 26 weeks' redundancy pay but substitute two weeks in its stead. [29] Save for the PAYG tax issue, the balance of the claim is accepted. William Hilton Jones [30] Dr Jones commenced employment as Principal Executive Officer on 15 October 2005. He has received no payment at all. Dr Jones advised that he had agreed to wait for payment until April 2006, but did not agree to forego arrears. Attachment B to his contract reads in part:
[31] Dr Jones said he gave notice on 17 August 2006. His claim is as follows: 1. Unpaid salary 15/10/05 to 16/08/06 $37,500 2. Superannuation $467 3. Annual Leave $3,605 TOTAL $41,572 4. Travel expenses 2005 $4,100 2006 $3,249 [32] As previously indicated, I am unable to address the issue of expense reimbursement. [33] Absent any contrary submissions or evidence, the balance of the claim is allowed. Hee-Rha (Willie) Moon [34] Mr Moon commenced on 12 January 2006 as Information Technology Manager. On 17 August he wrote to Mr Moore in the following terms:
[35] Mr Moon's claim consists of the following: 1. Unpaid salary $15,480 2. Annual leave $1,604 3 Four weeks notice. $2,692 3. Superannuation $1,878 4. Relocation expenses $2,248 5. Travel expenses $1,521 [36] As previously indicated, I am unable to address the issue of relocation and travel expenses. [37] In the absence of any contrary submission, the balance of the claim is allowed. ORDER Pursuant to Section 31 of the Industrial Relations Act 1984, I hereby order that Australia Tasmania College of Technology Pty Ltd trading as Australia Tasmania College of Technology pay the below mentioned amounts to the following: Manisha Baijal · An amount of $59,389 by way of unpaid salary, accumulated annual leave and notice; · An amount of $1,922 by way of a redundancy payment; · An amount of $6,054 into an approved superannuation fund nominated by the applicant. Amit Baijal · An amount of $43,819 by way of unpaid salary, accumulated annual leave and notice; · An amount of $3,077 by way of a redundancy payment; · An amount of $9,692 into an approved superannuation fund nominated by the applicant. William Hilton Jones · An amount of $41,105 by way of unpaid salary and accumulated annual leave; · An amount of $467 into an approved superannuation fund nominated by applicant. He-Rha (Willie) Moon · An amount of $19,776 by way of unpaid salary, accumulated annual leave and notice; · An amount of $1,878 into an approved superannuation fund nominated by the applicant. I further order that such payments are to be made not later than 5.00pm on 19 September 2006.
Tim Abey Appearances: Date and Place of Hearing: 1 Transcript PN 70
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