T544
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
This matter was referred to me for determination in accordance with the provisions of subsection (2) of section 13 - Settlement of Disputes - of the Long Service Leave Act 1976. The dispute is over the deduction of $130.00 by O'Conor's Shoe Stores (the Employer) from the pro rata long service leave entitlement of Mr T.B. Weir (the Employee). The Employee terminated his employment on 29 January 1986 after more than 15 years service. The $130.00 is equivalent to the face value of a cheque accepted by the Employee during the last few weeks of his employment. The cheque was ultimately dishonoured, with the Employer holding the Employee responsible for making good the lost amount. Other details of the Employee's long service leave entitlement were not challenged and therefore are not at issue. However, it came out during proceedings that a further $1,000.00 was deducted from the Employee's final pay. This amount was owed to the Employer and was deducted with the Employee's consent. By contrast, no authority was given by the Employee for the deduction of the $130.00. The determination of this matter turns on whether or not the Employer has the right to deduct any amount, from monies due to the Employee, without the Employee's consent. Although the Long Service Leave Act 1976 is silent on this question, the principle involved has been well tested over many years. In terms of an authority on the principle, one needs to go no further than the Tasmanian Industrial Relations Act 1984. Section 51(3) of that Act reads: "Where, by virtue of an award, an employee is entitled to be paid any sum by his employer, that employer is guilty of an offence if that sum is paid otherwise than in money without any deductions other than those that may be authorised by the employee." I have no doubt that if the legislators of the Long Service Leave Act 1976 saw the need for a similar provision in that Act, they would simply change the words "an award" to read "this Act". I therefore determine that the Employer wrongfully deducted an amount of $130.00 from the long service leave payment due to the Employee on the termination of his employment on 29 January 1986. An order reflecting this decision is attached. While I have determined this matter on the grounds set out above I believe it appropriate to make some further comment. I have not set out in this decision, or taken into account, the circumstances of this case as I believe they are irrelevant to my determination of the claim. Whether or not those circumstances justify the Employer's belief that the Employee was negligent and therefore responsible for the loss, is not a matter that can be dealt with by this Commission in these proceedings. Similarly, during the proceedings and by letter addressed to the President of this Commission, the Employer raised questions concerning a $1,000 loan he had made to the Employee. Any claim or questions going to this matter are not within the jurisdiction of this Commission.
J.G. King |
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