Ian Derwent Riley v Healy Airconditioning Pty Ltd
Document Type: Decision
Matter Number: CP 1/2001
Matter Description: Workplace Agreements Act 1993.
Industry:
Jurisdiction: Industrial Magistrate
Member/Magistrate name:
Delivery Date: 15 Aug 2001
Result:
Citation: 2003 WAIRC 07864
WAIG Reference: 83 WAIG 556
100315826
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT
PARTIES IAN DERWENT RILEY
COMPLAINANT
-V-
HEALY AIRCONDITIONING PTY LTD
DEFENDANT
CORAM MAGISTRATE G CICCHINI IM
DATE WEDNESDAY, 15 AUGUST 2001
COMPLAINT NO/S CP 1 OF 2001
CITATION NO. 2003 WAIRC 07864
_______________________________________________________________________________
Representation
COMPLAINANT MR ID RILEY APPEARED IN PERSON
Defendant Mr AR Healy being a Director of the Defendant appeared for the Defendant.
_______________________________________________________________________________
Reasons for Decision
1 On 3 January 2001 the Complainant made a complaint that on 15 December 2000 the Defendant unfairly, harshly or oppressively dismissed him. The Complainant seeks reinstatement, or alternatively, damages. Additionally he alleges that the Defendant has breached their workplace agreement by failing to pay him his entitlements under the agreement. He accordingly seeks to recover amounts which he says are payable under the agreement.
Background
2 Mr Riley responded to “an employment advertisement” in the West Australian Newspaper in or about October of 1999. The advertisement sought a sales representative to sell air conditioning products on behalf of the Defendant. In responding to the advertisement Mr Riley spoke to Mike Martino the Defendant’s General Manager. Mr Martino interviewed the Complainant and subsequently employed him to be a “Commission Sales Executive”. Consequently Mr Riley commenced working for the Defendant on 7 October 1999.
3 The terms of the oral agreement between the Complainant and Defendant provided, inter alia, that the Complainant would be paid commission on sales. The rate of commission would depend on the nature of product sold. Additionally the Complainant was paid a “manager’s fee” of $10,000 per annum. That fee was paid progressively on a regular basis, which assisted in the equalization of income over time. When commenting on the conditions of his “employment” Mr Riley said that he believed that he was to receive holiday pay. He conceded however that he knew that the Defendant would not be making payments of superannuation in relation to him. Furthermore he knew he was not covered by workers’ compensation.
4 Mr Riley testified that just prior to 30 June 2000 he was told that he had to sign a workplace agreement. At about that time he was handed a copy of a workplace agreement to sign. However Mr Riley did not immediately sign the agreement. He eventually executed it on 25 September 2000. The Commissioner of Workplace Agreements, on 30 October 2000, subsequently registered the agreement.
5 The workplace agreement set out the terms of remuneration, which included:
· An annual retainer of $26,000 paid in twenty-six fortnightly payments;
· A vehicle allowance of $6,000 per annum paid monthly in arrears; and
· A telephone allowance of $500 per annum paid monthly in arrears.
6 The agreement does not specifically set out the details in relation to commissions payable. I accept however that the Complainant’s remuneration includes the payment of commission. The terms of the Complainant’s remuneration are those as set out and highlighted at page 10 of the Defendant’s Sales and Marketing Document 2000/2001 dated June 2000. That document outlines part of the terms and conditions of employment under which the Complainant was engaged as from 1 July 2000.
7 The workplace agreement itself addresses other conditions including, inter alia:
· Annual leave
· Notice, and
· Sick leave
8 The annual leave provision in the workplace agreement provides that the Complainant was entitled to 160 hours of annual leave per annum which accrued at the rate of 3.077 hours per week. The calculation of annual leave is based on the retainer only. The sick leave provision provides that the Complainant was entitled to eighty hours of sick leave per year, which accrued at the rate of 1.538 hours per week. The notice provisions required the Defendant to give one week’s notice in the first year of employment or two weeks notice in the case of one to three years of employment.
9 Notwithstanding the terms of the workplace agreement the Complainant’s remuneration was varied by oral agreement in that his retainer was paid on a weekly basis rather than a fortnightly basis. The documentary evidence clearly establishes that fact.
10 In about mid November 2000 Mr Martino, on behalf of the Defendant, approached the Complainant concerning his alleged poor performance. It was put to the Complainant that he had a poor contact to sales conversion rate. The Complainant took a differing view and accordingly spoke to the Defendant’s director, Mr Alwyn Healy, concerning the matter. The discussions did not achieve a change in perceptions.
11 On 23 November 2000 Mr Healy faxed a letter (exhibit 5) to the Complainant concerning his sales performance and other matters. The letter indicated, inter alia, that the Defendant was looking at the possibility of replacing the Complainant as manager at Rockingham.
12 On 25 November 2000 Mr Riley attended his medical practitioner. He was certified on that day to be unfit for work for one week. On 1 December 2000 he was again certified as being unfit for work for a further week. The Complainant sent those medical certificates to the Defendant.
13 On 30 November 2000 Mr Healy wrote to the Complainant and advised that the Defendant had withdrawn payment of his management fee with immediate effect. Furthermore he indicated that certain cash deposits paid over by customers had not been accounted for. The letter indicated that the failure to pay such funds into the Defendant’s office by the morning of 4 December 2000 would result in immediate termination.
14 The Complainant testified that all monies received by him had in fact been handed over to the Defendant. He said in effect that by reason of the Defendant’s poor accounting systems the money, which he had previously handed over, had not been appropriately accounted for. All monies referred to in Mr Healy’s letter of 30 November 2000 had in fact been handed in prior to the date of the letter. He said that he made numerous calls to Mr Healy in order to discuss the matter raised in his letter but was unable to reach him. On 4 December 2000 he faxed a letter to the Defendant querying the matters contained in the letter.
15 The Complainant testified that he concluded that he had been terminated with effect from 4 December. He said that it was impossible for him to comply with the
16 Defendant's demands contained within its letter dated 30 November 2000, as there was no money outstanding.
17 The Complainant testified that he has not been paid following his termination and accordingly seeks payment of a total of $7647.28 being the sum of outstanding entitlements (see exhibit 8).
18 In about March of 2001 the Complainant obtained alternate full time employment. He accordingly suffered unemployment for a total of seven weeks in consequence of the Defendant’s termination of his employment. He told the Court that notwithstanding that he no longer wishes to pursue his unfair dismissal claim but rather seeks only to recover his contractual entitlements under the workplace agreement. The Complainant has effectively abandoned his claim made under section 51 of the Workplace Agreements Act 1993 (the Act).
19 Finally it is important to note that the Complainant’s alleged failure to account for cash was referred to the Rockingham detectives by Mr Healy on behalf of the Defendant. It suffices to say that the police have taken no action in respect of the matter, as there is insufficient evidence to support a criminal charge against the Complainant.
20 The Complainant was cross- examined. Under cross-examination, he agreed that the workplace agreement under which his claim is brought commenced on 29 September 2000. The Complainant was also asked questions concerning the Defendant’s accounting procedures. In that regard he said that the procedures were such that cash money was left with the Defendant’s employees and that no receipts were issued. It was company policy not to issue receipts. He said that the Defendant’s accounting procedures were defective. He gave an example of Sandra Healy finding a record of “moneys” previously thought to have gone missing which had in reality not been properly accounted for. They included the amounts to which Mr Healy referred in his letter dated 30 November 2000.
21 Mr Alwyn Healy gave evidence for the Defendant. He told the Court that he was not directly involved in the initial engagement of Mr Riley. However he was able to say that Mr Riley was initially engaged as an independent contractor remunerated on a commission basis.
22 Mr Healy testified that as from 1 July 2000 the Complainant was employed in conformity with the terms of the workplace agreement, which was subsequently entered into formally by the Complainant on 25 September 2000. He told the Court that the Complainant was paid in accordance with the terms of the workplace agreement. He said that the agreement did not provide for the payment of management fees. Although conceding that management fees were paid he said that they were only paid at the discretion of the employer.
23 Mr Healy told the Court that the Defendant had not received any of the cash deposits referred to in his letter to the Complainant dated 30 November 2000 (exhibit 3). He said that the company’s systems were such that the deposits of cash required the issue of receipts. He said there is no dispute in respect of the fact that the money was paid over by the customers to the Complainant but maintains that the money was never handed over by the Complainant to the Defendant. He maintains that the Complainant has misappropriated money. As a result of Rockingham detectives’ unwillingness to pursue the matter he has instructed his solicitors to issue a summons in the Local Court seeking to recover money, which he alleges has been misappropriated by the Complainant.
24 In relation to the issue of termination, he said that he attempted on numerous occasions to contact the Complainant but was unsuccessful. He was accordingly compelled to write the letter that he did.
25 Mr Healy also maintains that the Complainant had been overpaid $3431. He accordingly, on behalf of the Defendant, seeks to recover that amount as may be set-off by any sum which may be payable to the Complainant in respect to outstanding entitlements. He therefore estimates that the Complainant owes the Defendant $2000.
26 Finally Mr Healy said he was quite entitled to dismiss the Complainant as he did, as his suspicion that the Complainant had misappropriated the money was sufficient in all the circumstances.
27 When cross-examined Mr Healy confirmed that his company had failed to keep accurate records of sick leave taken. Furthermore he confirmed that a management fee had been paid to the Complainant throughout his engagement. He denied however that he had told the Complainant that the Defendant was suing another organization on account of the delivery of an inefficient accounts software program.
Findings on the Facts
28 The evidence as to the terms of the Complainant’s engagement in October 1999 is somewhat incomplete. The evidence before me in that regard is very sketchy indeed. The Defendant contends that the Complainant operated as an independent contractor. The Complainant contends that he was an employee. However he concedes that no superannuation was payable and that he was not covered by workers’ compensation. Notwithstanding that, he says that annual leave accrued throughout. It is obvious that there are some aspects of the relationship that indicate that the Complainant may have been engaged as an employee. However there are other indicia that go to show that he may have been an independent contractor. The evidence on the issue is so sketchy that it is impossible for me to conclude, on the balance of probabilities, either one way or the other.
29 It is not in issue however that as from 1 July 2000 the Complainant was the defendant’s employee. I find that the terms of his employment were those as contained within the workplace agreement read in conjunction with the Sales and Marketing Document 2000/2001 as varied by an oral agreement. I accept the Complainant’s evidence as to the terms of the oral agreement to which I referred earlier. It is clear that both parties were bound by the terms of the said agreement as from 1 July 2000. On 25 September 2000 the Complainant formally executed the workplace agreement. Accordingly on that day the agreement became binding and effective within the terms of the Act
30 The Complainant is therefore entitled to bring the action that he has pursuant to the provisions of section 50 of the Act. In that regard he is also entitled to recover any entitlements payable under the Minimum Conditions of Employment Act 1993 (the MCE Act - see Section 7 thereof).
31 There is no issue in the fact that the Complainant took sick leave as from 25 November 2000. I accept his evidence that he was ill and procured medical certificates that were sent on to the Defendant. It is clear that he is entitled to recover sick leave payments in respect to that period.
32 Furthermore it is apparent from the evidence that the Complainant was dismissed from his employment with effect from 4 December 2000. The evidence dictates, and overwhelmingly so, that the dismissal of the Complainant was unfair. There is absolutely no evidence before the Court to establish the Defendant’s contention that the Complainant misappropriated money. All I have is bare assertions made by Mr Healy unsupported by evidence. The Complainant, on the other hand, gave credible evidence on the issue. From his evidence it appears that the Defendant’s procedures are so defective that it permits money to go missing. It appears that there is no proper form of receipting and/or accounting adopted by the Defendant with respect to the receipt of cash money. Therefore it is possible to conclude that Mr Healy’s suspicions may well have been erroneously based. In any event the letter dated 30 November 2000 demonstrates procedural unfairness in that it pre-supposes that the Complainant had failed to pay the money. It does not give the Complainant an opportunity to be heard on the issue. Mr Healy’s acts were, in the circumstances, precipitous and unfair. The Complainant was clearly denied both procedural and substantive fairness in not being afforded the opportunity of putting his position. I fear that Mr Healy may have used the issue to deny the Complainant his contractual entitlements and benefits under the MCE Act. There can be no doubt that the Complainant is entitled to his accrued benefits.
33 Had the Complainant not abandoned his unfair dismissal claim he may well have been able to recover in that regard.
Conclusions
34 Having determined that the Complainant is entitled to recover his contractual entitlements under the workplace agreement it becomes obvious that his recovery by this action is limited to the period 25 September 2000 to termination. It may very well be that the Complainant is entitled to recover with respect to entitlements accrued prior to 25 September 2000, however he cannot do so by virtue of these proceedings. He would necessarily have to take action in the Industrial Relations Commission and/or this Court under a different cause of action in order to recover.
35 In my view his entitlements under the workplace agreement with respect to this action are those that accrued between 25 September 2000 and 4 December 2000, being a total period of 10 weeks precisely.
Annual Leave
36 The Complainant is entitled to annual leave pursuant to the workplace agreement as accrued between 25 September and 4 December calculated as follows:
10 weeks @ 3.077 hours x $12.50 per hour = $384.63.
37 It is apparent from the workplace agreement that the rate is that based on the retainer set out within the agreement. The hourly rate provided for by the retainer is $12.50 per hour. In my view any other calculation that may imports allowances such as the management or any other allowance is inappropriate.
Sick Leave
38 The Complainant’s entitlement to sick leave accrued under the workplace agreement between 25 September 2000 and 4 December 2000.
39 Accordingly the Complainant’s entitlement is calculated as follows:
10 weeks @ 1.538 hours x $12.50 per hour = $192.25.
40 I am satisfied that the rate must be based on the retainer only and not any other allowances paid.
Notice
41 In view of the fact that the Complainant was dismissed without notice, he is entitled in accordance with the terms of the workplace agreement to one week’s pay in lieu of notice calculated as follows:
$26.000 ¸ 52 weeks = $500.
Payment of Remuneration
42 I accept the Complainant’s evidence that he is entitled to his November 2000 monthly remuneration which has thus far not been paid. In that regard he is entitled to his retainer ($1000), the management fee ($833), his kilometre allowance ($500) and his telephone allowance ($41.65). They amount to $2374.65. A sum of $411 representing a payment advanced is to be deducted from that figure (see exhibit 8). Accordingly the Complainant’s entitlement in this regard may be calculated as follows:
Retainer $1000.00
Management fee 833.00
Kilometrage 500.00
Telephone allowance 41.65
2374.65
Less payment advanced 411.00
$1963.65
Total of Entitlements Recoverable by the Complainant
43 Accordingly it follows that the Complainant is entitled to the amount of $3040.53 being the sum of all the entitlements referred to above which is owed by the Defendant to the Complainant under the terms of the workplace agreement.
Counterclaim
44 Finally the Defendant, through Mr Healy, contends that it is owed money by the Complainant. The fact that a counterclaim was being made was never raised with the Complainant in any formal sense until Mr Healy gave his evidence. In any event Mr Healy’s contention in his evidence that the Complainant owes the Defendant money amounted to a bare assertion unsupported by the evidence. Given that the Complainant was not formally given notice of any counterclaim prior to the Defendant’s case being heard, it is inappropriate that I deal with such a claim. If the Defendant has a claim in that regard there is nothing stopping it from taking separate action in that regard.
G Cicchini
Industrial Magistrate
100315826
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT
PARTIES IAN DERWENT RILEY
COMPLAINANT
-v-
HEALY AIRCONDITIONING PTY LTD
DEFENDANT
CORAM MAGISTRATE G CICCHINI IM
DATE WEDNESDAY, 15 AUGUST 2001
COMPLAINT NO/S CP 1 OF 2001
CITATION NO. 2003 WAIRC 07864
_______________________________________________________________________________
Representation
Complainant Mr ID Riley appeared in person
Defendant Mr AR Healy being a Director of the Defendant appeared for the Defendant.
_______________________________________________________________________________
Reasons for Decision
1 On 3 January 2001 the Complainant made a complaint that on 15 December 2000 the Defendant unfairly, harshly or oppressively dismissed him. The Complainant seeks reinstatement, or alternatively, damages. Additionally he alleges that the Defendant has breached their workplace agreement by failing to pay him his entitlements under the agreement. He accordingly seeks to recover amounts which he says are payable under the agreement.
Background
2 Mr Riley responded to “an employment advertisement” in the West Australian Newspaper in or about October of 1999. The advertisement sought a sales representative to sell air conditioning products on behalf of the Defendant. In responding to the advertisement Mr Riley spoke to Mike Martino the Defendant’s General Manager. Mr Martino interviewed the Complainant and subsequently employed him to be a “Commission Sales Executive”. Consequently Mr Riley commenced working for the Defendant on 7 October 1999.
3 The terms of the oral agreement between the Complainant and Defendant provided, inter alia, that the Complainant would be paid commission on sales. The rate of commission would depend on the nature of product sold. Additionally the Complainant was paid a “manager’s fee” of $10,000 per annum. That fee was paid progressively on a regular basis, which assisted in the equalization of income over time. When commenting on the conditions of his “employment” Mr Riley said that he believed that he was to receive holiday pay. He conceded however that he knew that the Defendant would not be making payments of superannuation in relation to him. Furthermore he knew he was not covered by workers’ compensation.
4 Mr Riley testified that just prior to 30 June 2000 he was told that he had to sign a workplace agreement. At about that time he was handed a copy of a workplace agreement to sign. However Mr Riley did not immediately sign the agreement. He eventually executed it on 25 September 2000. The Commissioner of Workplace Agreements, on 30 October 2000, subsequently registered the agreement.
5 The workplace agreement set out the terms of remuneration, which included:
- An annual retainer of $26,000 paid in twenty-six fortnightly payments;
- A vehicle allowance of $6,000 per annum paid monthly in arrears; and
- A telephone allowance of $500 per annum paid monthly in arrears.
6 The agreement does not specifically set out the details in relation to commissions payable. I accept however that the Complainant’s remuneration includes the payment of commission. The terms of the Complainant’s remuneration are those as set out and highlighted at page 10 of the Defendant’s Sales and Marketing Document 2000/2001 dated June 2000. That document outlines part of the terms and conditions of employment under which the Complainant was engaged as from 1 July 2000.
7 The workplace agreement itself addresses other conditions including, inter alia:
- Annual leave
- Notice, and
- Sick leave
8 The annual leave provision in the workplace agreement provides that the Complainant was entitled to 160 hours of annual leave per annum which accrued at the rate of 3.077 hours per week. The calculation of annual leave is based on the retainer only. The sick leave provision provides that the Complainant was entitled to eighty hours of sick leave per year, which accrued at the rate of 1.538 hours per week. The notice provisions required the Defendant to give one week’s notice in the first year of employment or two weeks notice in the case of one to three years of employment.
9 Notwithstanding the terms of the workplace agreement the Complainant’s remuneration was varied by oral agreement in that his retainer was paid on a weekly basis rather than a fortnightly basis. The documentary evidence clearly establishes that fact.
10 In about mid November 2000 Mr Martino, on behalf of the Defendant, approached the Complainant concerning his alleged poor performance. It was put to the Complainant that he had a poor contact to sales conversion rate. The Complainant took a differing view and accordingly spoke to the Defendant’s director, Mr Alwyn Healy, concerning the matter. The discussions did not achieve a change in perceptions.
11 On 23 November 2000 Mr Healy faxed a letter (exhibit 5) to the Complainant concerning his sales performance and other matters. The letter indicated, inter alia, that the Defendant was looking at the possibility of replacing the Complainant as manager at Rockingham.
12 On 25 November 2000 Mr Riley attended his medical practitioner. He was certified on that day to be unfit for work for one week. On 1 December 2000 he was again certified as being unfit for work for a further week. The Complainant sent those medical certificates to the Defendant.
13 On 30 November 2000 Mr Healy wrote to the Complainant and advised that the Defendant had withdrawn payment of his management fee with immediate effect. Furthermore he indicated that certain cash deposits paid over by customers had not been accounted for. The letter indicated that the failure to pay such funds into the Defendant’s office by the morning of 4 December 2000 would result in immediate termination.
14 The Complainant testified that all monies received by him had in fact been handed over to the Defendant. He said in effect that by reason of the Defendant’s poor accounting systems the money, which he had previously handed over, had not been appropriately accounted for. All monies referred to in Mr Healy’s letter of 30 November 2000 had in fact been handed in prior to the date of the letter. He said that he made numerous calls to Mr Healy in order to discuss the matter raised in his letter but was unable to reach him. On 4 December 2000 he faxed a letter to the Defendant querying the matters contained in the letter.
15 The Complainant testified that he concluded that he had been terminated with effect from 4 December. He said that it was impossible for him to comply with the
16 Defendant's demands contained within its letter dated 30 November 2000, as there was no money outstanding.
17 The Complainant testified that he has not been paid following his termination and accordingly seeks payment of a total of $7647.28 being the sum of outstanding entitlements (see exhibit 8).
18 In about March of 2001 the Complainant obtained alternate full time employment. He accordingly suffered unemployment for a total of seven weeks in consequence of the Defendant’s termination of his employment. He told the Court that notwithstanding that he no longer wishes to pursue his unfair dismissal claim but rather seeks only to recover his contractual entitlements under the workplace agreement. The Complainant has effectively abandoned his claim made under section 51 of the Workplace Agreements Act 1993 (the Act).
19 Finally it is important to note that the Complainant’s alleged failure to account for cash was referred to the Rockingham detectives by Mr Healy on behalf of the Defendant. It suffices to say that the police have taken no action in respect of the matter, as there is insufficient evidence to support a criminal charge against the Complainant.
20 The Complainant was cross- examined. Under cross-examination, he agreed that the workplace agreement under which his claim is brought commenced on 29 September 2000. The Complainant was also asked questions concerning the Defendant’s accounting procedures. In that regard he said that the procedures were such that cash money was left with the Defendant’s employees and that no receipts were issued. It was company policy not to issue receipts. He said that the Defendant’s accounting procedures were defective. He gave an example of Sandra Healy finding a record of “moneys” previously thought to have gone missing which had in reality not been properly accounted for. They included the amounts to which Mr Healy referred in his letter dated 30 November 2000.
21 Mr Alwyn Healy gave evidence for the Defendant. He told the Court that he was not directly involved in the initial engagement of Mr Riley. However he was able to say that Mr Riley was initially engaged as an independent contractor remunerated on a commission basis.
22 Mr Healy testified that as from 1 July 2000 the Complainant was employed in conformity with the terms of the workplace agreement, which was subsequently entered into formally by the Complainant on 25 September 2000. He told the Court that the Complainant was paid in accordance with the terms of the workplace agreement. He said that the agreement did not provide for the payment of management fees. Although conceding that management fees were paid he said that they were only paid at the discretion of the employer.
23 Mr Healy told the Court that the Defendant had not received any of the cash deposits referred to in his letter to the Complainant dated 30 November 2000 (exhibit 3). He said that the company’s systems were such that the deposits of cash required the issue of receipts. He said there is no dispute in respect of the fact that the money was paid over by the customers to the Complainant but maintains that the money was never handed over by the Complainant to the Defendant. He maintains that the Complainant has misappropriated money. As a result of Rockingham detectives’ unwillingness to pursue the matter he has instructed his solicitors to issue a summons in the Local Court seeking to recover money, which he alleges has been misappropriated by the Complainant.
24 In relation to the issue of termination, he said that he attempted on numerous occasions to contact the Complainant but was unsuccessful. He was accordingly compelled to write the letter that he did.
25 Mr Healy also maintains that the Complainant had been overpaid $3431. He accordingly, on behalf of the Defendant, seeks to recover that amount as may be set-off by any sum which may be payable to the Complainant in respect to outstanding entitlements. He therefore estimates that the Complainant owes the Defendant $2000.
26 Finally Mr Healy said he was quite entitled to dismiss the Complainant as he did, as his suspicion that the Complainant had misappropriated the money was sufficient in all the circumstances.
27 When cross-examined Mr Healy confirmed that his company had failed to keep accurate records of sick leave taken. Furthermore he confirmed that a management fee had been paid to the Complainant throughout his engagement. He denied however that he had told the Complainant that the Defendant was suing another organization on account of the delivery of an inefficient accounts software program.
Findings on the Facts
28 The evidence as to the terms of the Complainant’s engagement in October 1999 is somewhat incomplete. The evidence before me in that regard is very sketchy indeed. The Defendant contends that the Complainant operated as an independent contractor. The Complainant contends that he was an employee. However he concedes that no superannuation was payable and that he was not covered by workers’ compensation. Notwithstanding that, he says that annual leave accrued throughout. It is obvious that there are some aspects of the relationship that indicate that the Complainant may have been engaged as an employee. However there are other indicia that go to show that he may have been an independent contractor. The evidence on the issue is so sketchy that it is impossible for me to conclude, on the balance of probabilities, either one way or the other.
29 It is not in issue however that as from 1 July 2000 the Complainant was the defendant’s employee. I find that the terms of his employment were those as contained within the workplace agreement read in conjunction with the Sales and Marketing Document 2000/2001 as varied by an oral agreement. I accept the Complainant’s evidence as to the terms of the oral agreement to which I referred earlier. It is clear that both parties were bound by the terms of the said agreement as from 1 July 2000. On 25 September 2000 the Complainant formally executed the workplace agreement. Accordingly on that day the agreement became binding and effective within the terms of the Act
30 The Complainant is therefore entitled to bring the action that he has pursuant to the provisions of section 50 of the Act. In that regard he is also entitled to recover any entitlements payable under the Minimum Conditions of Employment Act 1993 (the MCE Act - see Section 7 thereof).
31 There is no issue in the fact that the Complainant took sick leave as from 25 November 2000. I accept his evidence that he was ill and procured medical certificates that were sent on to the Defendant. It is clear that he is entitled to recover sick leave payments in respect to that period.
32 Furthermore it is apparent from the evidence that the Complainant was dismissed from his employment with effect from 4 December 2000. The evidence dictates, and overwhelmingly so, that the dismissal of the Complainant was unfair. There is absolutely no evidence before the Court to establish the Defendant’s contention that the Complainant misappropriated money. All I have is bare assertions made by Mr Healy unsupported by evidence. The Complainant, on the other hand, gave credible evidence on the issue. From his evidence it appears that the Defendant’s procedures are so defective that it permits money to go missing. It appears that there is no proper form of receipting and/or accounting adopted by the Defendant with respect to the receipt of cash money. Therefore it is possible to conclude that Mr Healy’s suspicions may well have been erroneously based. In any event the letter dated 30 November 2000 demonstrates procedural unfairness in that it pre-supposes that the Complainant had failed to pay the money. It does not give the Complainant an opportunity to be heard on the issue. Mr Healy’s acts were, in the circumstances, precipitous and unfair. The Complainant was clearly denied both procedural and substantive fairness in not being afforded the opportunity of putting his position. I fear that Mr Healy may have used the issue to deny the Complainant his contractual entitlements and benefits under the MCE Act. There can be no doubt that the Complainant is entitled to his accrued benefits.
33 Had the Complainant not abandoned his unfair dismissal claim he may well have been able to recover in that regard.
Conclusions
34 Having determined that the Complainant is entitled to recover his contractual entitlements under the workplace agreement it becomes obvious that his recovery by this action is limited to the period 25 September 2000 to termination. It may very well be that the Complainant is entitled to recover with respect to entitlements accrued prior to 25 September 2000, however he cannot do so by virtue of these proceedings. He would necessarily have to take action in the Industrial Relations Commission and/or this Court under a different cause of action in order to recover.
35 In my view his entitlements under the workplace agreement with respect to this action are those that accrued between 25 September 2000 and 4 December 2000, being a total period of 10 weeks precisely.
Annual Leave
36 The Complainant is entitled to annual leave pursuant to the workplace agreement as accrued between 25 September and 4 December calculated as follows:
10 weeks @ 3.077 hours x $12.50 per hour = $384.63.
37 It is apparent from the workplace agreement that the rate is that based on the retainer set out within the agreement. The hourly rate provided for by the retainer is $12.50 per hour. In my view any other calculation that may imports allowances such as the management or any other allowance is inappropriate.
Sick Leave
38 The Complainant’s entitlement to sick leave accrued under the workplace agreement between 25 September 2000 and 4 December 2000.
39 Accordingly the Complainant’s entitlement is calculated as follows:
10 weeks @ 1.538 hours x $12.50 per hour = $192.25.
40 I am satisfied that the rate must be based on the retainer only and not any other allowances paid.
Notice
41 In view of the fact that the Complainant was dismissed without notice, he is entitled in accordance with the terms of the workplace agreement to one week’s pay in lieu of notice calculated as follows:
$26.000 52 weeks = $500.
Payment of Remuneration
42 I accept the Complainant’s evidence that he is entitled to his November 2000 monthly remuneration which has thus far not been paid. In that regard he is entitled to his retainer ($1000), the management fee ($833), his kilometre allowance ($500) and his telephone allowance ($41.65). They amount to $2374.65. A sum of $411 representing a payment advanced is to be deducted from that figure (see exhibit 8). Accordingly the Complainant’s entitlement in this regard may be calculated as follows:
Retainer $1000.00
Management fee 833.00
Kilometrage 500.00
Telephone allowance 41.65
2374.65
Less payment advanced 411.00
$1963.65
Total of Entitlements Recoverable by the Complainant
43 Accordingly it follows that the Complainant is entitled to the amount of $3040.53 being the sum of all the entitlements referred to above which is owed by the Defendant to the Complainant under the terms of the workplace agreement.
Counterclaim
44 Finally the Defendant, through Mr Healy, contends that it is owed money by the Complainant. The fact that a counterclaim was being made was never raised with the Complainant in any formal sense until Mr Healy gave his evidence. In any event Mr Healy’s contention in his evidence that the Complainant owes the Defendant money amounted to a bare assertion unsupported by the evidence. Given that the Complainant was not formally given notice of any counterclaim prior to the Defendant’s case being heard, it is inappropriate that I deal with such a claim. If the Defendant has a claim in that regard there is nothing stopping it from taking separate action in that regard.
G Cicchini
Industrial Magistrate