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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
Samson v K & T Renata Transport Ltd
13 Dec 2006, M Urlich, AA 377/06, (5 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Respondent claimed applicant dismissed because persistently failed to perform duties - Respondent proposed change from salary to hourly rate - Applicant rejected proposal and claimed meeting became hostile when raised issue of deductions from pay - Filed assault charges with police over actions of director's father but matter not prosecuted - Director denied being hostile towards applicant and alleged he threw cell phone - Authority satisfied some form of altercation occurred - Respondent submitted not responsible for actions of director's father as not employee - Argument did not stand as father worked part time for company and to objective observer represented respondent at meeting - For director to allow father to assault applicant amounted to serious failure by respondent to maintain obligations to provide safe workplace - Applicant's doctor placed him on stress leave - Respondent denied receiving medical certificate but Authority found applicant made reasonable efforts to send it - After representative raised personal grievance and deductions issue, applicant received dismissal letter - Reasonable for applicant to form view respondent would not abide by terms of employment agreement - Constructive dismissal - In event Authority wrong, actual dismissal unjustified as no reasonable basis for it - Remedies - Although tossing cell phone unwise, not blameworthy conduct which contributed to dismissal, reaction not proportionate - PENALTY - Applicant alleged unauthorised deductions from wages - Although agreed to deductions no evidence of written consent - Respondent failed to comply with Wages Protection Act 1983 - Penalty appropriate - ARREARS OF HOLIDAY PAY - Calculation of holiday pay referred to Labour Inspectorate - Authority had not yet received Inspector's report - Claim stayed pending further information - Length of service seven months - Driver
Result: Application granted ; Reimbursement of lost wages ($3,588)(23 days) ; Compensation for humiliation etc ($4,000) ; Penalty ($200)(Payable to Crown) ; Costs reserved
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