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Carter v Turnaround Managers Ltd
14 Dec 2006, YS Oldfield, AA 378/06, (7 pages)
ARREARS OF WAGES AND HOLIDAY PAY - Triangular employment - Applicant claimed owed wages for accounting work done for respondent's clients - Respondent argued accounting work performed by applicant on own account and not as employee - Applicant unaware accounting work expressly excluded from respondent's contract with first client - In absence of instruction to change or cease what doing, work done on respondent's behalf and in capacity as employee - Employment agreement made wage payments conditional on respondent having contracted to provide services to clients and on client having made payment - Respondent submitted bore no liability as conditions not met - Applicant accepted payment conditional but considered respondent had responsibility to invoice clients and pursue payment vigorously - Essentially "commission only" arrangement - Authority did not accept respondent did not have contracts with clients - However, accepted payment not received and could not accept respondent failed to adequately pursue payment - Applicant knew high risk environment meant risk of non-payment - Condition not met - However, Minimum Wage Act 1983 and Wages Protection Act 1983 applied - Applicant not paid for nine weeks - Entitled to arrears of wages based on minimum wage - Respondent accepted holiday pay due and owing
Result: Application granted : Arrears of wages ($810) ; Arrears of holiday pay ($4,271.06) ; Interest (8%) ; Costs to lie where they fall
Jose v Barter Exchange Ltd t/a Victoria Motor Services
15 Dec 2006, P Stapp, WA 176/06, (17 pages)
ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages, holiday pay and other monies owed under alleged employment agreement - Credibility finding in favour of respondent - Authority satisfied terms and conditions of employment not represented by letter - Claims for accommodation and airfares not made out - Deductions by respondent breached Wages Protection Act 1983 - However, respondent reasonably believed had authority given applicant's complicity - Final pay and holiday pay owing - DAMAGES - Applicant's claim for damages misconceived and without sufficient details and support - COUNTERCLAIM - BREACH OF CONTRACT - Applicant resigned without notice - Reasonable notice would have been two weeks - No award for damages as no direct evidence of loss - PENALTY - Deliberate failure to give reasonable notice - Penalty not raised in statement in reply - Given lack of proper notice and quasi criminal nature of penalties Authority declined to impose penalty on applicant - RECOVERY OF MONIES - Respondent sought to recover money for parts and tools applicant bought on account during employment - Applicant denied sums owed - Both parties denied having items - Amounts directly related to employment - Applicant ordered to pay entire sum claimed and to reimburse respondent cost of towing away his car - Sums to be offset - Mechanic
Result: Application granted (Arrears) ; Arrears of wages and holiday pay ($1,296.05) ; Application dismissed (Damages) ; Counterclaim granted (Recovery of monies) ; Monies owed ($821.17) ; Counterclaim dismissed (Breach of contract, penalty) ; Costs reserved
Osborne v J A Ramsay Transport Ltd
21 Dec 2006, G Wood, WA 181/06, (13 pages)
RAISING PERSONAL GRIEVANCE - Whether grievance raised within 90 days - Applicant alleged constructive dismissal - No written employment agreement - Respondent belatedly offered written agreement - Applicant declined to sign, rightly noting it contained three month probationary period even though already employed longer than that - Applicant alleged raised grievance in letter to respondent - Respondent denied receiving letter - Objected to application for leave to raise grievance out of time and proceeded under protest to jurisdiction - Significant alleged letter not referred to in statement of problem and never referred to until 90-day issue raised - On balance of probabilities, more likely than not letter not sent - Other scenarios did not explain why no follow up action taken - Applicant submitted exceptional circumstances existed based on poor health and ignorance of law - Ignorance of law could not apply as applicant took legal advice very soon after resigned - No medical evidence to support claim unable to properly consider raising grievance - In any event, applicant's evidence sent letter and took advice negated exceptional circumstances claim - In event Authority wrong, would find no constructive dismissal - Two issues better dealt with as arrears claim - Other claims not cause of applicant's resignation - ARREARS OF WAGES - Applicant to be paid for four trips - Wages due and owing - Driver
Result: Application dismissed (Personal grievance) ; Application granted (Arrears) ; Arrears of wages ($162) ; Costs reserved
Ploszaj v Rush Security Services Ltd
26 Jul 2007, Y Oldfield, AA 220/07, (7 pages)
ARREARS OF WAGES AND HOLIDAY PAY - Employment relationship lasted 6 days - Respondent relied on provision in individual employment agreement ("IEA") to withhold all wages and holiday pay - Authority found applicant's command of English not sufficient to understand obligations in IEA - Applicant claimed was told would be working mixture of day and night shifts - Resigned after being rostered mostly night shifts - Respondent accepted resignation, and did not remind applicant of contractual obligations - Respondent not provided copy of IEA - Authority found applicant genuinely misunderstood type of shifts offered by respondent - Respondent asked Authority to determine whether IEA provisions enforceable - IEA provided for applicant to give one weeks notice and failure to do so would incur forfeiture of weeks pay in lieu of notice - Provisions enforceable - However, Respondent's failure to provide IEA meant applicant unable to check notice provisions - Without copy of IEA applicant not responsible for mistake - Respondent erred in witholding applicants final pay - Respondent ordered to pay wages
Result: Application granted; Arrears of wages ($523.13) ; Arrears of holiday pay ($31.39)(Arrears less security licence ($20))
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