T3851
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 John Sells and Roger John Stanley & Robin Dianne Stanley
Long service leave REASONS FOR DECISION This matter concerns a reference of a dispute pursuant to Section 13(1) of the Long Service Leave Act 1976. The dispute is as to whether an employee has become entitled to payment in lieu of pro-rata long service leave. Mr John Sells claimed that he was continuously employed as a bar manager, and later as barman, at the Empire Hotel, Hobart, from at least 1 October 1977 until 7 March 1991, when his services were terminated by the employer for reasons of staff rationalisation and lack of work. According to the claim Mr Sells was first employed at the hotel by Roger John Self and Ann Self. However on 3 November 1982 the business changed hands and Mr Sells was employed from that point on until 7 March 1991 by Roger John Stanley and Robin Dianne Stanley. A full report of the results of an investigation carried out by Ms R M Haynes, industrial officer, with the Department of Employment Industrial Relations and Training was provided to Messrs Stanley together with a request for payment prior to referral of the dispute to the Commission. However Mr and Mrs Stanley failed to respond to correspondence or personal calls in this regard. Originally the parties were advised that the dispute was set down for hearing and determination on 20 July 1992, but solicitors for the employer, Ogilvie McKenna requested a postponement until after 24 July 1992. As a consequence the hearing was deferred until 30 July 1992, to meet the employers' convenience. However when the hearing commenced the employer made no personal appearance and was not otherwise represented. After perusing the file I was able to satisfy myself that all parties had been properly notified of the essential details going to the new time and date of hearing at the Commission. Given these circumstances the matter was heard ex-parte. Ms Haynes presented her full report to the Commissioner and this included, inter alia, that:
On 5 December Mr Roger Stanley was interviewed and full details of Mr Sell's claim for long service leave was put to him. Mr Stanley admitted that he had employed Mr Sells as a full time bar attendant from 2 November 1984 when the business was transmitted from Mr and Mrs Self and that employment was continuous from that date until 7 March 1991. It was alleged the final payment to Mr Sells included wages, holiday pay, and long service leave - paid in instalments. It was admitted by Mr Stanley that there had been a minor disagreement over payments. Mr Stanley could produce no records and authority was given for the Department's industrial officer to approach the employers' accountant. Following such enquiries no substantiation of payment of long service leave could be produced. Rather the evidence was that Mr Stanley had repaid a personal debt of $810.00 to Mr Sells by instalments.
(i) She commenced work at the same hotel during the first week in October 1977. (ii) Mr Sells was already working at the Empire Hotel at that time as full time barman. (iii) She continued to work at the Empire Hotel, including the time when Roger Stanley became licensee. Mr John Sells gave sworn evidence to the Commission and testified that:
After reviewing the whole of the submissions, report, statement and sworn evidence I am satisfied that I have sufficient evidence before me to make a finding that Mr John Sells was an employee of the Empire Hotel, Hobart and he was continuously employed at that establishment from 1 October 1977 to 7 March 1991. I further find that whereas Mr Sells was first employed by a Mr and Mrs Self the same or substantially the same business was transmitted to the latter employer Roger John Stanley and Robin Dianne Stanley on or about 3 November 1982. Accordingly the final employer has a responsibility for any entitlement to long service leave payment which arose as a consequence of Mr Sell's termination of services in the prevailing circumstances by virtue of the provisions of the Long Service Leave Act 1976. I am also satisfied on the evidence before me that Mr Sells has not been paid his entitlements by his employer despite all reasonable requests and representations to have the matter settled. For all of these reasons I have decided to issue an Order pursuant to Section 13(3) of the Long Service Leave Act, 1976 in the following terms:
Dated at Hobart this 3rd day of August 1992.
A.Robinson Appearances: Date and Place of Hearing: |