WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2011 WAIRC 00890

DELIVERED : Thursday, 8 September 2011

FILE NO. : M 9 OF 2011

Claimant

AND

Orna (APR) Pty Ltd

Respondent

CatchWords : Claim for payment of outstanding annual leave entitlement dealt with as a small claims proceeding pursuant to s 548 of the Fair Work Act 2009; Claim proven.

Legislation :  Fair Work Act 2009, s 548

Result : Claim Proven

Representation:

Claimant : Mrs P Forsyth in person

Respondent : No appearance

REASONS FOR DECISION

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

Background

1         This is a claim pursuant to s 584 of the Fair Work Act 2009 small claim procedure for an amount of  $899.22, being unpaid annual leave entitlements relating to the Claimant’s employment with the Respondent which ceased in January 2009.  The Claimant responded to an advertisement in the West Australian Newspaper on 21 May 2005 for a Part-Time Researcher, and was subsequently employed by the Respondent on a part-time basis, initially for three days per week and subsequently for two days per week, ceasing in or about July 2006. 

2         From payroll advices covering that period, the Claimant was described as part-time, and accrued holiday and sick leave entitlements.  Thereafter, at the Respondent’s request, the Claimant resumed working for the Respondent in or about July 2007, and continued to work for the Respondent until ceasing employment in January 2009.  From payroll advices for that period also, the Respondent described the Claimant as part-time, and she accrued annual and sick leave during the period. 

3         The Claimant gave evidence that when she returned to work with the Respondent in or about July 2007, pursuant to a request by the Respondent to help out at the office of the Respondent, she had a conversation with Mr John Westall.  During this conversation she offered to return to work permanently for the Respondent.  The Respondent accepted, and she resumed working for him for two days per week.

4         On her evidence, shortly thereafter there was a conversation involving the bookkeeper during which her status was referred to as “casual”.  She immediately clarified her status with Mr Westall, that being that she was permanent.  Following Mr Westall’s confirmation of her status as permanent, she continued to work for the Respondent on that basis.  I am satisfied, and I find that Mr Westall was a Director of the Respondent company at all relevant times. 

Determination

5         On the basis of the evidence before the Court, I am satisfied and find as follows.

6         Firstly, the Claimant was an employee of the Respondent during two discrete periods of employment, the first from July 2005 to approximately July 2006, the second from approximately July 2007 to January 2009.  Further, I am satisfied and find that she was engaged as a Researcher in a part-time capacity.

7         I am also satisfied and find that at the cessation of the Claimant’s employment in January 2009, her hourly rate was $21.00.  Further, I am satisfied and find that the Claimant was a permanent, part-time employee of the Respondent and that she was owed 42.82 hours of annual leave upon the termination her employment in January 2009.  Further still, I am satisfied that to date the Claimant has not been paid the monies owed.

8         I am also satisfied and I find that the Respondent, through its Director, Mr John Westall, has acknowledged the liability by email dated 10 December 2009.  Accordingly, I am satisfied and find for the brief reasons stated that the Claimant is entitled to be paid $899.22 (gross) by way of unpaid annual leave entitlements. 

9         I therefore Order that payment of the amount of $899.22 (gross) be paid by the Respondent, to the Claimant, within seven days.

C CRAWFORD

INDUSTRIAL MAGISTRATE