T13017
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Kerri-Lee Kelly and Adel Gergios trading as Split Image Clothing
Industrial dispute - severance pay in respect of termination of employment as a result of redundancy - alleged breach of award or registered agreement – Order issued REASONS FOR DECISION [1] On 13 September 2007, Kerri-Lee Kelly (the applicant) 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 Adel Gergios trading as Split Image Clothing (the respondent) re severance pay in respect of termination of employment as a result of redundancy; alleged breach of award or registered agreement. [2] The matter was listed for hearing (Conciliation Conference) at The Court House, 19 King Edward Street, Ulverstone, Tasmania on Thursday, 20 September 2007 at 3.45 pm. However, at the request of the parties this was subsequently changed to 18 October 2007 at 1.00 pm. BACKGROUND [3] The applicant was employed by the respondent from 2 March 2006 until 28 June 2007. She was employed as the Store Manager. The Office of Workplace Standards confirmed her position status as Retail Employee Grade 2. She commenced working full time, but had more recently worked a regular 25 hours per week part time. [4] In early June 2007 the applicant gave notice that she intended leaving her employment mid-way through July 2007. She alleged the respondent terminated her employment on 28 June 2007. [5] On 17 October 2007, the Commission received communication from Paul Sullivan, Lawyer, advising that the respondent would not be attending the hearing, nor was he, Mr Sullivan given instructions to attend on the respondent’s behalf. [6] Mr Sullivan informed the Commission that the respondent had offered to pay the applicant the sum of $1,354.00 in full and final settlement of any claims with respect to the applicant’s employment with the respondent. [7] The amount offered was specifically for outstanding annual leave entitlements, net of PAYE tax. The letter informed that the respondent was in receipt of Centrelink payments and would require time to pay. The letter also advised that the respondent now resided in Victoria and that any further communications be directed to him there. [8] The contents of this letter were communicated to the applicant during the hearing. [9] At the hearing on 18 October 2007, the applicant asserted the respondent had not formally told her that she had to cease employment on a particular date. On the contrary, she alleged the respondent, on or around 28 June 2007, told her the business had been sold and from then on she was not allocated any shifts. [10] The applicant confirmed she had received payment for hours worked up until 28 June 2007. She asserted she was not paid for her accrued annual leave, but had the equivalent of PAYE tax due for the payment registered on her Group Certificate for the financial year 2006/7, confirming Mr Sullivan’s communication. [11] The applicant asserted she had sought payment for accrued annual leave from the respondent and that he agreed to meet her and pay the outstanding monies “later on after work” in July 2007. However, at the meeting, she alleged the respondent informed her that he would “owe me the cheque, so I never got the money”. [12] At a later date, after the applicant had initiated the instant proceedings, the respondent, it is alleged, offered to pay the accrued leave by cheque on 28 September 2007. The applicant stated she did not receive the cheque. [13] The applicant alleged that the respondent’s lawyer (unnamed) had contacted her and confirmed that payment would be made on the Monday preceding the hearing on 18 October 2007. Again, the applicant did not receive payment. [14] The respondent did not challenge any of these assertions. [15] The applicant further asserted that she had been underpaid, according to the Retail Trades Award (the award), for the duration of her employment. The Office of Workplace Standards provided calculations as to the extent of such alleged underpayment based on pay advices provided by the applicant. [16] Although not in the original application, the applicant asserted she had never had the statutory superannuation payments accredited to her nominated account. [17] On 30 October, 2007 the Commission wrote to respondent, forwarding a copy of the transcript of the proceedings held on 18 October 2007, offering him the opportunity to submit a written response to the applicant’s various assertions. The correspondence also stated that the Commission was prepared to consider a written submission provided it was received on or before 14 November 2007. An offer was also made that should he wish to avail himself of a further hearing, the respondent could do so by request within 7 days of the date of that correspondence. No request for a hearing was received by the nominated date. [18] On the day after the deadline for written submissions, 15 November 2007, a request for an extension of the 14 November 2007 deadline was sought and granted to Mr P Sullivan on the respondent’s behalf. A letter was received from Mr Sullivan on 20 November 2007, responding to the assertions proffered by the applicant, as recorded in transcript. [19] The respondent asserted the applicant resigned verbally, effective 15 June 2007, and was persuaded to stay on until the business changed hands. He further asserted the applicant had been paid according to the award at all times. The respondent did not address Workplace Standards’ support of the applicant’s claim. [20] On the matter of the superannuation payments, the respondent asserted the required payments had been made to an account on the applicant’s behalf through his agent, Nabil Khalil & Associates, to a fund operated by AXA. No evidence was adduced to support the assertion. [21] However the applicant made mention of the fact that although she requested her superannuation be deposited with Host Plus, her preferred fund, the respondent insisted the funds “go through a friend of his”. Mr Sullivan made note that the superannuation contribution did not form part of the applicant’s original claim. [22] The Commission, by letter dated 27 November 2007, provided the applicant with a copy of the respondent’s response. The Commission received a reply from the applicant on 3 December 2007. [23] The applicant rejected the respondent’s assertion that she chose to leave her employment on 15 June 2007. To support this she asserted that because she was pregnant, she intended leaving her job when she was around 36 weeks, which would have been mid July 2007. [24] In regard to the respondent’s claim of payment of her superannuation contribution, the applicant asserted she had contacted Nabil Khalil, who claimed to have no knowledge of any superannuation transactions on her behalf. [25] In the correspondence of 3 December 2007, the applicant withdrew her claim for redundancy. FINDINGS[26] The resolution of this matter has been made all the more difficult by the non-attendance of the respondent at the hearing and, in his absence, his failure to appoint a representative to speak on his behalf. [27] Although Mr Sullivan has communicated to the Commission on the respondent’s behalf, he does not appear to have instructions to represent him before the Commission. [28] In Mr Sullivan’s initial communication of 17 October 2007 to the Commission, it states that all future correspondence should be directed to the respondent. In his communication of 20 November 2007, Mr Sullivan requested that should a further hearing be convened the respondent be permitted to appear by telephone. To this end he supplied the respondent’s mobile number. [29] In my letter to the respondent of 30 October 2007, I offered to consider a written submission provided it was received by 14 November 2007, or alternatively, for him to seek a hearing in writing within 7 days. Neither offer was taken up within the designated time. [30] Subsequently, Mr Sullivan requested an extension of time to submit a written response on the respondent’s behalf. This response was received on 20 November 2007. [31] It is my view that the respondent has been afforded ample opportunity to address the case put by the applicant. I rely on the evidence presented by the applicant at the hearing and the subsequent written submissions from her and that of the respondent. [32] I have been given no reason to doubt the veracity of the evidence given by the applicant. On the other hand the respondent’s failure to refute allegations show him in a less than favourable light, particularly in respect of his manipulation of the applicant’s accrued leave payment. This led me towards questioning the accuracy of his evidence. [33] It is my opinion that the applicant did give notice to terminate her employment in mid-July 2007 and that her notice period was cut short on the 28 June 2007 by the actions of the respondent [34] Again, in his correspondence of the 20 November 2007, Mr Sullivan reiterated the respondent’s position of offering to reimburse the applicant’s outstanding accrued leave in full and final settlement of the issue. The respondent’s position had not changed since Mr Sullivan’s communication of 17 October 2007. [35] The respondent deliberately withheld legitimate entitlements, which he acknowledged were due to the applicant, namely outstanding holiday pay. On three occasions he promised to pay applicant, and on each occasion he reneged on those promises. [36] The applicant is entitled to an accrued leave payment of $2,050.87, and I so find. [37] I now turn to the applicant’s claim for 4-weeks’ pay in lieu of notice. [38] Clause 14 of the award specifies employees are engaged by the week and, as such, termination by either party is by the giving of one week’s notice. The applicant is entitled to be paid the equivalent one-week’s pay in lieu of notice, and I so find. [39] Mr Sullivan commented that the applicant’s claim for unpaid superannuation contributions was not part of the original application. He is correct. However, under Section 20(3) of the Industrial Relations Act 1984, the Commission is “… not restricted to the specific claim made or to the subject-matter of the claim.” In light of the conflicting argument around the superannuation contribution, it is proper I make a finding on the matter. [40] No evidence was provided to the Commission that the superannuation contributions had been made on the applicant’s behalf. Indeed, the respondent’s assertion that payment was made through his agent has been refuted by the agent, which is convincing evidence to the contrary. The applicant is entitled to have her superannuation contributions made, embracing the entire time she was employed by the respondent, and I so find. [41] I now consider the alleged underpayment of wages. [42] The Office of Workplace Standards provided a comprehensive review of the applicant’s situation, based on the applicant’s actual weekly pay advices. Although the respondent asserted the applicant was “paid in accordance with the award at all times” he offered no evidence to substantiate his position. For want of contrary evidence I accept Workplace Standards’ determination. On the evidence provided to the Commission the applicant was underpaid during her employment with the respondent, and I so find. ORDERI hereby order, pursuant to section 31 of the Industrial Relations Act 1984, that Adel Gergios trading as Split Image Clothing pay Kerri-Lee Kelly the following sums:
The said sum of $5,297.93 to be paid by Adel Gergios trading as Split Image Clothing to Kerri-Lee Kelly in full on or before 5.00 pm, Thursday, 20 December 2007. This Order is in full and final settlement of the industrial dispute stated in application T13017 of 2007. Nothing in this Order shall be construed as to prevent the respondent from paying the above-mentioned sum prior to the due date.
James P McAlpine Appearances: Date and Place of Hearing: |