T13024
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Lee-Anne Burles and Judith Byrne As Trustee for the Dale Byrne Family Trust
Industrial dispute - alleged breach of award or registered agreement - order issued REASONS FOR DECISION [1] On 2 October 2007, Lee-Anne Burles (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 Judith Byrne As Trustee for the Dale Byrne Family Trust T/as Sparky's Speciality Bakery (the respondent) arising out of an alleged breach of award or registered agreement. [2] This matter was listed for hearing at the Commonwealth Law Courts Building, 39-41 Davey Street, Hobart, Tasmania on Tuesday, 16 October 2007 (Conciliation Conference) and Wednesday, 31 October 2007. [3] The applicant, Lee-Anne Burles, was employed by the respondent from 8 November 2006 until 5 July 2007. She was employed as a part-time Bakery Employee, Level 2. Her position status was confirmed as correct by the Office of Workplace Standards following an earlier dispute. She worked a regular 24 hours per week. [4] It was acknowledged that there had been tension between the applicant and the respondent for some time over the payment of a "sick day". It transpired that the respondent eventually, reluctantly, paid the day in question as sick pay. This despite advice from the Company Accountant to the contrary. [5] The applicant alleged the respondent terminated her employment on 5 July 2007 following a verbal altercation between Judith Byrne, a partner in the business, and herself. Dale Byrne, for the respondent, rejected the allegations and asserted the applicant left her employment of her own volition. He alleged that on the day in question, the applicant walked out of the shop after the altercation and did not return. [6] The applicant rejected Mr Byrne's assertions and denied she had left the job voluntarily. She did confirm that once she had left the shop she did not return, but said that was because she had been sacked. [7] Mr Byrne read from a statement he asserted came from an employee supporting his position. [8] The applicant confirmed she did not receive a Separation Certificate from the respondent, nor was she given any documentation confirming her termination. The applicant asserted her superannuation payments had not been made for the duration of her employment with the respondent. [9] Mr Byrne's responded as follows:
[10] The applicant asserted that nothing had been paid into her Tasplan superannuation account. She submitted a letter, dated 24 October 2007, from Tasplan confirming her assertion. [11] Again Mr Byrne responded:
[12] And further:
[13] And:
[14] The Commission requested the applicant get an update on the status of her Tasplan account in response to Mr Byrne's assurance that payment had been made. [15] On 9 November 2007 the Commission received written communication from the applicant confirming she had spoken to both Tasplan and the Australian Taxation Office regarding her superannuation payments and that, as at 7 November 2007, no payments had been received by them. [16] The applicant sought two weeks pay in lieu of notice, accrued holiday pay and the payment of outstanding superannuation contributions. FINDINGS [17] Unfortunately this matter is devoid of any substantive evidence as to the manner by which the applicant left her employment. It was evident from the submissions made by both parties that the relationship between the parties had been volatile since the early days of the applicant's employment when she had sought sick pay. [18] I have not taken into account the statement from "Ebony" proffered by Mr Byrne as it could be not challenged or verified. [19] Mr Byrne failed to impress as a reliable source of fact. His continual portrayal of himself as "just one of the workers" in an attempt to distance himself from his responsibilities as a partner in the business was unconvincing. Also, his insistence on having paid the applicant's superannuation despite the evidence to the contrary further challenges the veracity of all his assertions. [20] On the other hand, however, it took the applicant until very late in the hearing to admit that she had been paid the disputed sick pay, albeit the day she was allegedly sacked. I am of the conviction that the statements made by her, whether intentional or not, have been somewhat embellished to suit her claims. [21] It is not beyond the realm of possibility that the applicant, in the heat of the moment, walked out of the work environment threatening not to return. In the same vein, she could have interpreted sharp words from Mr Byrne as her dismissal. [22] It is my view the employment relationship had broken down completely during the altercation on 5 July 2007. In coming to this conclusion I cannot direct responsibility wholly to one party or the other. [23] I now turn to the applicant's entitlements under the Baking Industry Award (the award). For completeness, I will also address the disputed sick leave. [24] Clause 24 - Personal Leave of the award states:
[25] The applicant was entitled to receive sick pay for the time she was off in the early stages of her employment. [26] I turn to the matter of Notice. Clause 13 - Contract of Employment, subclause (c) of the award states:
[27] The manner by which the applicant left her employment cannot be established beyond reasonable doubt. In this instance payment in lieu of notice is not due to the applicant and, conversely, forfeiture of one week's wages is not due to the respondent, and I so find. [28] The matter of Annual Leave. Clause 9 - Annual Leave of the award, at subclause (h), states:
[29] There is no evidence to indicate the applicant left her employment unlawfully, nor is there evidence her employment was terminated due to any fault on her part. The applicant is entitled to pro-rata annual leave, and I so find. [30] Finally, I turn to the superannuation payments. [31] Mr Byrne admitted the respondent owed the applicant Superannuation payments for the duration of her employment. Contrary to his assertions, there is clear evidence up to and including 7 November 2007 that no payment has been made. ORDER I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, that: 1. Judith Byrne As Trustee for the Dale Byrne Family Trust T/as Sparky's Speciality Bakery pay Lee-Anne Burles the sum of seven hundred and sixty seven dollars and twenty cents ($767.20) for pro-rata annual leave. 2. Judith Byrne As Trustee for the Dale Byrne Family Trust T/as Sparky's Speciality Bakery pay directly into Lee-Anne Burles Tasplan Superannuation Account, the sum of one thousand and ninety four dollars and seventy cents ($1,094.70), being 9% of the applicants gross earnings inclusive of pro-rata annual leave. The above amounts to be paid on or before 5.00 pm, Thursday, 29 November 2007.
James P McAlpine Appearances: Date and Place of Hearing: 1 Transcript, Page 4, Line 15
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