WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES PARMINDER SINGH

CLAIMANT

-v-

Jaguar Security Services Pty Ltd

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD Wednesday, 21 April 2010

DELIVERED Wednesday, 21 April 2010

CLAIM NO. M 132 OF 2009

CITATION NO. 2010 WAIRC 00258

CatchWords Claim for payment of wages dealt with as a small claims proceeding pursuant to     s 548 of the Fair Work Act 2009, turns on its own facts.

Legislation  Fair Work Act 2009

Security Officers Award of 1981

Cases Cited Nil

Cases Referred to Nil

in Decision 

Result Claim Proven

Representation: 

Claimant  Mr P. Singh in person

Respondent Mr J. Walizada Director of the Respondent appeared for it

REASONS FOR DECISION

(Given extemporaneously at the conclusion of the hearing, extracted from the transcript of proceedings and edited by His Honour)

1         On or about 1 February 2009, the Respondent employed the Claimant as a casual security officer and crowd controller.  His employment was, at all material times governed by the Security Officers Award of 1981. 

2         Between February and June of 2009 the Claimant regularly worked for the Respondent.  He mainly worked as security officer at the Girrawheen Shopping Centre.  At that place he worked daily Mondays to Fridays inclusive in two shifts between 8 am and 12 noon and thereafter between 3 pm and 8 pm. 

3         On or about the end of May 2009, the Respondent discovered that the Claimant had been working privately for the Girrawheen Shopping Centre on weekends.  The Respondent took the view that his conduct in that regard was illegal, inappropriate and conflicted with his fiduciary obligations to the Respondent.   As a consequence the Respondent summarily dismissed him.  The Respondent has since steadfastly refused to pay him his wages for the hours worked the preceding two weeks prior to his summary dismissal. 

4         Subsequent to his dismissal, the Respondent has investigated the Claimant’s conduct whilst employed for the Respondent and has come to the view that the Claimant had not worked all the hours he had claimed on his job sheets.  The Respondent concluded that the Claimant owes it $2,800.  The alleged overpayment has only been brought to the Claimant's attention after his dismissal.  The Respondent suggests that because the Claimant owes it $2,800, that he should not receive his unpaid wages for work done preceding his summary dismissal. 

5         On 19 November 2009 the Claimant lodged his claim seeking to recover $1,656 being the value of his unpaid wages.  The $1,656 claimed represents 90 hours worked between 25 May 2009 and 5 June 2009 inclusive at the rate of $18.40 per hour.  I find that the hourly rate claimed is the correct rate applicable for his work at that time.  In addition to his unpaid wages the Claimant also seeks the return of a $100 deposit paid by him to the Respondent for a uniform supplied to him.  He alleges that it was agreed that upon the completion of his employment with the Respondent, he would return his uniform to the Respondent and that his $100 deposit would be returned to him.  He has returned the uniform but his deposit has not been refunded.

6         The Claimant testified that he worked the hours claimed but he has not received payment.  The Respondent, through its director Mr Walizada, suggests that although the Claimant worked for most of those hours, he did not work the entirety of the 90 hours claimed.  Mr Walizada said that he visited the work location on the afternoon of 27 May 2009 and found the Claimant not to be there.  In assessing his evidence in this matter, I am not satisfied that he has a particularly accurate record of the date that he attended the site.  He gave no explanation as to why 27 May 2009 particularly stuck in his mind.  On the other hand the documentary evidence before me (Exhibits 2 and 3) being the relevant job cards and time sheets reflect that the hours claimed were worked.  The job cards and the time sheets produced by the Claimant on their face have been approved and countersigned as being correct.  The perusal of those documents demonstrates an acceptance of the times indicated thereon as having been worked.

7         The claimant in this matter in his evidence came across as being an honest and reliable witness.  I accept his evidence.  I have no reason to reject it and I prefer his evidence to Mr Walizada's evidence on issues in conflict.  I accept on the balance of probabilities that the claimant has worked at least 90 hours for which he has not been paid. 

8         The Respondent agrees that the Claimant has not been paid for his last two weeks work, subject to deduction to be made for hours not worked.  However, it says, that the Claimant should not be paid any amounts because he owes it $2,800.  The Respondent says that any amount that the Claimant is entitled to receive should be set off against the $2,800 owing to the Respondent.  As indicated to the Respondent at the commencement of this hearing, this Court does not have jurisdictional ability to entertain the Respondent's counterclaim and set off.  If the Respondent has a claim against the Claimant, it should pursue that in a Court of competent jurisdiction.  There is nothing stopping the Respondent from doing that.  It will, of course, be obliged to satisfy that Court of its claim against the Claimant.  The fact that the Respondent believes it has a claim against the Claimant is not a factor that this Court can consider or take into account or indeed, determine in this proceeding.

9         The only issue determined by this Court is whether the claim is maintainable.  As I have already said, I have accepted that the hours claimed to have been worked were worked and that the Claimant was not paid for those hours worked.  Accordingly, the only question remaining is whether the summary termination of the Claimant somehow disentitles him to wages accrued prior to his termination.  In that regard it is clear that the summary termination of an employment contract has the effect of discharging any obligation falling due, for performance after the date of termination.  All obligations existing pre-determination remains enforceable.  The Claimant's right to recover wages was not determined by his summary dismissal.  It follows that the Claimant is entitled to be remunerated for the 90 hours that he worked at the rate of $18.40 per hour.  He is therefore entitled to the $1,656 that he has claimed in that regard.  Further, given that there was an agreement, as Mr Walizada confirmed concerning the return of the $100 deposit upon the redelivery of the uniform and given that I am satisfied that the Respondent has received the uniform from the Claimant, the $100 that was paid by the Claimant to the Respondent ought to be returned to him.

10      There will be judgment for the Claimant against the Respondent.  I order that the Respondent pay to the Claimant firstly, the sum of $1,656, less tax, being for outstanding wages; secondly an amount of $100, being the return of the deposit paid by the Claimant, for his uniform; and thirdly an amount of $40, being the value of the disbursement incurred by the Claimant in initiating this claim against the Respondent. 

     G. Cicchini

     Magistrate