TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s70(1) appeal against decision

Darko Krajinovic
(T13504 of 2009)
and
Debbie Pouwelse

FULL BENCH:                                                                           HOBART, 5 October 2009
PRESIDENT P L LEARY
COMMISSIONER T J ABEY
COMMISSIONER J P McALPINE 

Appeal against a decision handed down by Deputy President P C Shelley arising out of T13369 of 2009 – Appeal upheld – Order of the Deputy President quashed

REASONS FOR DECISION

[1] In a decision in Matter T13369 of 2009, Deputy President Shelley ordered, pursuant to s.31 of the Industrial Relations Act 1984, that Darko Krajinovic pay to Debbie Maree Pouwelse the sum of seven thousand, six hundred and thirty four dollars and eighty five cents ($7,634.85) by close of business 27 May, 2009.

[2] The applicant in the matter before the Deputy President advised that the respondent had not complied with the terms of the order.

[3] Following investigation by the Commission’s Registrar the order was served on Mr Krajinovic by process server at an address different to the address found in the application.  Accordingly the Deputy President issued a further decision allowing payment of the order by 26 August, 2009.

[4] Mr Krajinovic has appealed the decision of the Deputy President claiming that the “hours provided are incorrect.”

[5] The history of the application reveals that a Notice of Hearing was forwarded to Mr Krajinovic but he did not attend.  The matter was relisted and a further Notice of Hearing was forwarded but again Mr Krajinovic failed to attend.  Accordingly the matter proceeded in his absence.

[6] A copy of the transcript was forwarded to Mr Krajinovic along with an invitation for him to provide a written submission.  No response was received from Mr Krajinovic and the Deputy President determined the matter on the information and documentation provided to her by the applicant, Debbie Pouwelse.

[7] The Deputy President noted that she was “satisfied that the Notices of Hearing were properly served by mail and were not returned to the sender.”

[8] In the appeal proceedings Mr Krajinovic submitted that the notices had been forwarded to his previous address and that he had not received them.

[9] The notices were sent by ordinary mail so there is no record of service and we therefore accept the submission of Mr Krajinovic that he did not receive the notices.

[10] It was noted that the calculations relied upon by the Deputy President were provided by Workplace Standards acting on a complaint by Ms Pouwelse.  The claim addressed an alleged underpayment of the rate of pay as well as underpayment for the hours Ms Pouwelse claimed to have worked for Mr Krajinovic.

[11] Mr Krajinovic rejected the number of hours claimed to have been worked by Ms Pouwelse and indicated that he had wage records based on information about the hours worked provided to him.  He said “…I paid her on what the baker has told me what times that she entered the store and left the store on a daily basis.”

[12] Mr Krajinovic has been advised that he will need to provide evidence of the hours he claims Ms Pouwelse worked for him.  He has also been provided with all of the relevant documentation on which the Deputy President made her determination.

[13] We are of the view that Mr Krajinovic did not receive the Notices of Hearing as they were forwarded to an incorrect address.  Accordingly he has not had the opportunity to be heard.

[14] We uphold the appeal and quash the order of the Deputy President.

[15] The matter will be referred back to the Deputy President for further hearing and to allow Mr Krajinovic to be heard.

[16] The Deputy President has indicated the matter will be listed for hearing in Hobart on Tuesday 13 October, 2009.  Appropriate notices will be forwarded in due course.

P L Leary
PRESIDENT

Appearances:
Mr Darko Krajinovic representing himself
Ms Debbie Pouwelse representing herself

Date and place of hearing:
2009
September 28
Hobart