WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2013 WAIRC 00808

DELIVERED : Thursday, 19 September 2013

FILE NO. : M 70 OF 2013

CLAIMANT

AND

Shakeshaft (WA) Pty Ltd A.C.N. 130 452 265

RESPONDENT

Catchwords : Claim for $15,374.30; Small Claim under the Fair Work Act 2009; Claim for interest; Alleged failure by employer to pay annual leave entitlement upon termination of employment; Alleged failure by employer to provide requisite period of notice or payment in lieu of notice; Whether termination of employment for serious misconduct was appropriate.

Legislation : Fair Work Act 2009

Result : Claim proven

Representation

Claimant : Mr Paul Gregory Davis appeared in person

Respondent : Ms Eleanor Shakeshaft appeared as Director of the Respondent

REASONS FOR DECISION

Background

1          Prior to 1 May 2008, the Claimant, Paul Gregory Davis was a sole trader accountant. He, together with two other sole trader accountants namely, Michael Freeman and Lorraine Wylie shared office accommodation. They together traded under the firm name of Bain and Associates.

2          In or about April 2008, Mr Davis, Mr Freeman and Ms Wylie agreed to sell their respective businesses to Shakeshaft (WA) Pty Ltd (the Respondent). It was a condition of the contract of sale in each instance that the vendor would work for the Respondent for a period of 12 months following the sale. Each vendor was retained as an employee. Another condition of the contract required the vendor, in the year following the sale, to generate fees that were at least equal to that generated the preceding year. Those arrangements were necessary for the sake of continuity and because the purchaser’s Director, Ms Eleanor Shakeshaft did not, at that stage, have a tax agent’s licence. Ms Shakeshaft was then a resident of the United Kingdom and had bought the businesses with the intention of relocating to Australia. To facilitate Ms Shakeshaft’s requirements at that stage Mr Davis was also appointed a Director of the Respondent. I am unclear as to whether Mr Freeman and Ms Wylie were similarly appointed. Mr Davis has since ceased to be a Director.

3          The employment arrangements were informal. No written contract of employment was created. In Mr Davis’ case it was agreed that he would be paid $75,000 per annum. He was to accrue four weeks’ annual leave and two weeks’ sick leave per annum. Further, it was agreed that he would work Mondays to Fridays with Friday afternoons off. Time taken off on Friday afternoon was in lieu of working Saturday mornings and afterhours. That work pattern was consistent with what he did prior to the sale of his business.

4          Over the years that followed, there was no change in Mr Davis’ work pattern and conditions except that his pay increased incrementally over time. As at January 2013, Mr Davis’ annual salary was $97,900.00.

5          The issue of taking Friday afternoons off has, in more recent times, been the subject of discussion between Ms Shakeshaft and Mr Davis. Ms Shakeshaft says that an agreement was reached that any time taken off on a Friday afternoon would be made up by time worked on Saturdays. If Saturday hours were insufficient to make up the hours taken off on the Friday afternoon, then those hours that were not set-off against the Saturday work would be treated as annual leave.  Mr Davis denies that agreement. He says that the situation remained unchanged. He testified that he discussed the issue with Ms Shakeshaft in January 2013. He told Ms Shakeshaft that he was agreeable to working on Friday afternoons, provided that he would no longer be required to work on Saturdays and/or after hours. With that being unacceptable to the Respondent, no change was made.

6          On 30 January 2013 Mr Davis was, by reason of serious misconduct, summarily dismissed from his employment. It follows that he was not given notice of termination, nor was he paid in lieu of notice. Subsequently, he was paid only part of his accrued annual leave entitlement. Mr Davis now claims payment in lieu of notice and payment of his outstanding entitlements.

Termination

Incident Giving Rise to Termination

7          Mr Davis had the task of maintaining the Respondent’s computer systems. His role was to resolve any computer problems that arose from time to time. On 15 January 2013 the computer system failed. At about 11.45am that day Mr Davis was forced to reboot the computers. That caused approximately20 to 30 minutes of downtime. Rather than spending that time waiting for the system to reboot, Mr Davis decided to take his lunch break earlier, which allowed him to then return early for his 1.00pm appointment. He informed Ms Shakeshaft of his intentions. At the time Ms Shakeshaft was in Megan Staal’s office. Ms Staal was another accountant employed by the Respondent. When he informed Ms Shakeshaft of his intentions Ms Staal quipped that Mr Davis was always going to lunch early and arriving back from lunch late. Mr Davis was offended by what was said and was particularly sensitive to the remark because he was of the view that Ms Shakeshaft was concerned about staff “stealing time” and had previously made comments to that effect.

8          The following day, on 16 January 2013, Mr Davis went to Ms Staal’s office to confront her about what she had said. He told her that he had been offended. It is common ground that the two then argued. Voices were raised, and the result was that Ms Staal yelled at Mr Davis to get out of her office. As Mr Davis walked back to his office, he said to her that she should apologise. The shouting was overheard by other employees but not by Ms Shakeshaft. Ms Shakeshaft was not present at the time, and neither were any clients. No further incident between Mr Davis and Ms Staal followed.

Reasons for Termination

9          On or about 25 January 2013, Ms Staal resigned from her employment. Although she gave Ms Shakeshaft written notice of her resignation she did not indicate within it the reason for resigning. Ms Shakeshaft testified that when she asked Ms Staal why she had resigned she was told that it was because of the incident with Mr Davis. Ms Staal allegedly told her that she could not work with Mr Davis. Concerned with what Ms Staal had told her and having regard to other complaints previously received from other staff members about Mr Davis, Ms Shakeshaft concluded that Mr Davis presented as a risk to the health and safety of her staff. She accordingly decided to commence an investigation into Mr Davis’ conduct and the incident that occurred on 16 January 2013.

10       Ms Staal’s evidence about what she told Ms Shakeshaft concerning the reasons for her resignation is not in keeping with what Ms Shakeshaft has told the Court. Ms Staal said that she told Ms Shakeshaft that she resigned because she was underpaid, unappreciated and because of other issues within the office.

11       Ms Staal testified that the incident between her and Mr Davis was the only argument that they had had. She conceded that they both became angry. Although the incident had “scared her” Mr Davis had not physically threatened her, stood over her, or otherwise harassed her.

Process of Termination

12       On the morning of 29 January 2013, Ms Shakeshaft sent Mr Davis an email informing him that she wanted to meet with him at 1.00pm to discuss the incident of 16 January 2013.

13       When Mr Davis attended Ms Shakeshaft’s office at 1.00pm that day, Ms Shakeshaft gave him a letter explaining why he had been called into her office. She informed him in that letter that the meeting was not a disciplinary proceeding but part of a disciplinary process aimed at establishing the facts and giving him the opportunity respond to allegations made, which concerned harassing staff at the workplace (Exhibit 9). He was also orally informed that in part, the investigation to be undertaken related to the incident on 16 January 2013. At 3.00pm on 29 January 2013, Ms Shakeshaft sent Mr Davis home and told him to return to work at 11.00am the next day.

14       The next day, 30 January 2013 when Mr Davis arrived at work, he went to his computer terminal and attempted to log in. He discovered that his login access had been denied. He remained in his office until called in to participate in the meeting with Ms Shakeshaft. Although Mr Davis was provided with the opportunity to have a support person with him during the meeting, he declined that opportunity. Also at the meeting was Ms Linda Peckham, Office Manager, who took notes. At one point Ms Staal also joined the meeting for a brief period.

15       It is Mr Davis’ evidence that after having been called into Ms Shakeshaft’s office, she informed him that what he had done with respect to Ms Staal amounted to serious misconduct and that he was to be summarily dismissed. She informed him that as a result of her investigation she had found serious misconduct proven.  He was then handed two letters. The letters are Attachments 2 and 3 to the Small Claim. Both letters were dated 30 January 2013.

16       In Attachment 2, Ms Shakeshaft stated that Mr Davis had breached the company’s guidelines with respect to grievance procedures. She told him that this was not an isolated incident and that he had made comments to other female staff that were “extremely offensive, of a sexual and racial nature and contravened the laws of Western Australia.”  He was told that he would be given an opportunity to respond to the allegations and make submissions before she reached a decision.

17       In Attachment 3, Ms Shakeshaft informed Mr Davis that the threats he made to Ms Staal were of a serious nature. She said that he had chosen to take matters into his own hands, rather than follow the procedures the Staff Handbook. Notwithstanding having taken into account his response and remorse, Ms Shakeshaft could not risk the chance of the behaviour recurring.  She informed Mr Davis that he was “summarily dismissed forthwith.”

18       Ms Shakeshaft denies the sequence of events as described by Mr Davis. She says that on the morning of 30 January 2013, she met with Mr Davis and gave him Attachment 2. She then gave him a further opportunity to make submissions to her. After having made those submissions, Mr Davis was asked to leave Ms Shakeshaft’s office. She then considered the matter. Approximately 40 minutes later Ms Shakeshaft called Mr Davis into her office whereupon she provided him with Attachment 3, which informed him of his summary dismissal.

19       Although in the circumstances little turns on it, I find it to be most probable that the events occurred in the sequence described by Ms Shakeshaft. She clearly received advice as to the process to be undertaken and in view of the documentary evidence before me; it appears that she followed the steps described.

Events after Termination

20       Mr Davis did not receive his termination payment immediately. Rather, he was paid in the normal course of the Respondent’s pay run on 28 February 2013. His penultimate payslip dated 25 January 2013 showed that he had accrued an entitlement of 226.76 hours of annual leave. However, Mr Davis was only paid for 70.56 hours of that entitlement. Having received only a small portion of what he had expected, Mr Davis sent Ms Shakeshaft an email querying the underpayment. On 27 February 2013, Ms Shakeshaft responded to Mr Davis’ email in the following terms:

“Hello Paul,

So that you are aware of the calculation of your final holiday pay I confirm:-

As per the agreement between us, you took hours off on Friday afternoons on the basis that time would either be made up by coming in on Saturdays for appointments and to work, or if the time taken was in excess of time worked, then the Friday time off would be taken as holiday. To date the holiday entitlements have yet to be adjusted and this would have taken effect at the end of the financial year. In particular as the time taken has far exceeded the time made up.

I have gone back through from 1st January 2012 and calculated the total hours paid for, I have taken off the hours not worked on Fridays, and adjusted these for the time made up on Saturdays.

Although this has gone on for some years, I have only calculated back from January 1st 2012. This is a gesture of goodwill only and for no other reason.

Best Regards.”

21       It suffices to say that Mr Davis denies the existence of such agreement.

The Issues

22       The two issues to be determined in this matter are:

• whether Mr Davis was entitled to payment in lieu of notice of the termination of his employment; and
• whether Mr Davis is owed 156.2 hours of accrued holiday leave.

23       In order to resolve the first issue I will need to consider whether Mr Davis’ dismissal was justified and in any event lawful.

Notice of Termination

24       Section 117 of the Fair Work Act 2009 (FW Act) requires an employer to give the requisite period of notice of termination of employment, or payment in lieu thereof. In Mr Davis’ case, given that he had worked for the Respondent for four years and nine months and that he was over the age of 45 years, section 117 of the FW Act required that he be given four weeks’ notice of the termination of his employment. That entitlement would be lost if there was a justified summary dismissal of employment.

25       Mr Davis says there was no justification for his summary dismissal and that it was simply a “ruse” to deny him of his proper entitlements.

Was the Summary Dismissal Justified?

26       When Ms Shakeshaft wrote to Mr Davis on 30 January 2013 (Attachment 3) she gave two main reasons for summarily terminating his employment. They were:

• that Mr Davis had threatened another employee; and
• that Mr Davis had taken matters into his own hands rather than follow company procedures as laid down in the Staff Handbook.

27       An ancillary reason given for the termination of his employment was that the incident on 16 January 2013 was the last in a long line of incidents in which he “regularly caused staff to feel threatened or uncomfortable,” and that despite the issue having been previously raised, he had failed to modify his ways.

Did Mr Davis Threaten or Harass Ms Staal on 16 January 2013?

28       One of the reasons why Ms Shakeshaft dismissed Mr Davis was because he had allegedly threatened Ms Staal.  In her letter to him dated 29 January 2013 (Exhibit 9) she informed him that she was investigating allegations that he had been harassing staff at the workplace.  Then in her letter dated 30 January (Attachment 2) she asserted that Mr Davis had “deliberately and relentlessly verbally harassed Megan (Ms Staal).”

29       Ms Shakeshaft testified that the allegations she had put to Mr Davis in the course of disciplinary proceedings came from what she had been told by Ms Staal. As indicated earlier, what Ms Shakeshaft has told the Court about what Ms Staal told her is not consistent with Ms Staal’s evidence. Despite the obvious inconsistency, Ms Shakeshaft did not seriously challenge Ms Staal when she had the opportunity to do so. In her testimony, Ms Shakeshaft asserts that Ms Staal lied under oath.

30       In resolving the conflict between the two accounts of the relevant facts, I accept Ms Staal’s evidence, and I reject the evidence of Ms Shakeshaft. I do not accept Ms Shakeshaft’s evidence that she was told by Ms Staal that she had been threatened or harassed by Mr Davis. Her contentions are unsupported. Ms Staal was an impressive and truthful witness. Unlike Ms Shakeshaft she has no interest in the outcome of this matter. Indeed, if anything, her evidence is against her own interests given that she continues to be employed by the Respondent. Despite the fact that her evidence is contrary to the Respondent’s interests and that it may well damage the fabric of her employment relationship with the Respondent, Ms Staal nevertheless was prepared to give such evidence. Ms Shakeshaft on the other hand, was an unimpressive witness. She was evasive in answering questions. She often failed to directly answer questions and was simply not credible on this issue. Ms Shakeshaft was equally not credible on a number of other issues, the starkest of which concerned the alleged agreement with Mr Davis regarding his annual leave.

31       Although it cannot be denied that the issue of the incident of 16 January 2013 was brought up and discussed in the meeting held between Ms Staal and Ms Shakeshaft following Ms Staal’s resignation, it was clearly not the primary issue expressed by Ms Staal as being the reason for her resignation. I find that Ms Staal was generally unhappy with her working arrangements which related to issues beyond the disagreement she had with Mr Davis on 16 January 2013. There were problems with her pay. Despite the fact she had just received a small pay increase, she was of the view that it was inadequate. She felt she was not appreciated within the workplace and there were other systemic problems there.

32       I find the incident of 16 January 2013 to be that as recounted to the Court by the two protagonists Mr Davis and Ms Staal. It was a one-off incident in which Mr Davis went into Ms Staal’s office and challenged her about the comments she made. That led to both of them raising their voices and shouting at each other. Mr Davis at all times stood in the doorway of Ms Staal’s office. He did not stand over Ms Staal or otherwise physically threaten her. The incident was such that it was overheard by other staff members. Although unseemly, it was not violent in nature. There had not been any issue between Ms Staal and Mr Davis prior to that date, nor was there or likely to be any incident after it. Although Ms Shakeshaft conveniently used safety and health to justify her actions, the reality was that Ms Staal’s safety and health was never at risk. I find that there was no threat made by Mr Davis to Ms Staal. It follows therefore, that the major plank underlying Ms Shakeshaft’s decision to terminate Mr Davis’ employment did not exist.

Alleged Previous Incidents

33       Ms Shakeshaft asserted that Mr Davis had been the subject of previous disciplinary “involvement”. It was alleged that on prior occasions he had caused other staff members to feel threatened or uncomfortable. In her letter to Mr Davis dated 30 January 2013 (Attachment 2), Ms Shakeshaft suggested that Mr Davis had made comments to female staff members which were extremely offensive and of a sexual and racial nature that contravened the laws of Western Australia. It suffices to say, in that regard that there is not one scintilla of evidence produced to this Court to support that allegation, nor is there any evidence to support the contention that Mr Davis had been the subject of previous disciplinary proceedings.

34       I fear that those comments have been made to bolster up Ms Shakeshaft’s decision to terminate Mr Davis’ employment. Her bare assertion in that regard is not only unsupported by the evidence but is also inconsistent with the evidence given by other staff members such as Ms Sinead Lowe.

Failing to Follow Grievance Procedures in Handbook

35       Another major reason why Ms Shakeshaft chose to summarily dismiss Mr Davis’ employment was because he allegedly failed to follow the grievance procedures set out in the Staff Handbook.

36       Sometime prior to the beginning of 2011, Mr Davis was to some extent involved in the creation of the Staff Handbook (Exhibit 10.1). The extent of his involvement is unclear. After its creation, the Staff Handbook was placed on the Respondent’s intranet site. According to Ms Shakeshaft, it remained on that site throughout 2011. Thereafter there was a problem with the server causing the site to fail. Although I know that the site is again operational it is unclear as to when it was re-established.

37       Ms Shakeshaft suggests that the terms and conditions contained in the Staff Handbook form part of the conditions of employment for each of the Respondent’s employees. For that to be the case, the employer was required not only to have informed each employee of the Handbook’s existence, but to also inform each employee of its provisions. Ms Shakeshaft was specifically required to inform employees of the fact that the Handbook’s content formed part of the contract of employment. The evidence of Mr Davis, Ms Lowe and Ms Staal establishes that they were never given a hard copy of the Handbook upon commencement, nor were they formally otherwise informed of its existence on the intranet, or that its terms would be incorporated into their contracts of employment. Ms Staal and Ms Lowe professed little or no knowledge of the Handbook. Ms Shakeshaft on the other hand, said that not only did employees know of the Handbook and that it could be accessed on the intranet, but further, that they were expected to access it and have regard to it. The weight of the evidence is against Ms Shakeshaft.

38       It is obvious that the Handbook was created and posted on the Respondent’s intranet site. However, I find that it was not in any formal way, or otherwise, brought to the attention of the Respondent’s employees. Indeed, some employees did not even know of its existence. Employees were not specifically told of the Handbook and its significance. I find that employees were not told that the conditions contained in the Handbook formed part of the terms and conditions of their employment. The creation of the Handbook and its placement on the intranet was a unilateral act on Ms Shakeshaft’s part. In the circumstances, its provisions could not have, and in fact never did form part of the conditions of employment of the Respondent’s employees. The Handbook never was an integral part of the employment relationship.

39       The Respondent’s approach to the Handbook is illustrative of its lax procedures. Ms Shakeshaft took the view that the Respondent’s employees would become bound by the obligations contained in the Handbook by its mere placement on the intranet site. That however, was insufficient. She had an obligation on behalf of the Respondent to bring the Handbook to the attention of each staff member and to specifically inform them that it formed part of their contractual relationship. Not having done that with Mr Davis, and indeed with other staff members, Ms Shakeshaft cannot now rely on its alleged breach as a foundation for Mr Davis’ dismissal. There was no breach of the employment agreement. There is no evidence to support the Respondent’s contention that the requirement to follow the grievance procedure set out in the Handbook ever formed part of the employment contract.

Conclusion Regarding Termination of Employment

40       In his submissions, Mr Davis suggested that the summary termination of his employment was contrived by Ms Shakeshaft to obtain a financial advantage. In light of the evidence presented to the Court, one can well understand why Mr Davis feels that way. However, it is unnecessary for me to determine whether Ms Shakeshaft has acted in the way she did for that purpose. All that I am required to do is to objectively examine the evidence to ascertain whether the summary termination of Mr Davis’ employment was justified.

41       Termination of employment summarily arising from misconduct can arise from a wide range of behaviour including violence, intoxication at work, theft, dishonesty, offensive language and so on. When such misconduct occurs it constitutes a repudiation of the terms of the employment agreement. Each case of course, will turn on its own facts.

42       Had Mr Davis threatened Ms Staal or otherwise wilfully disobeyed his employer’s directions, then there may have been grounds for summary dismissal. In this case though, the evidence dictates that he did not do those things. Viewed objectively, there was no serious misconduct by Mr Davis. The evidence is unsupportive of Ms Shakeshaft’s conclusion that Mr Davis had been guilty of serious misconduct. In the circumstances, his summary termination was clearly unwarranted.

43       What occurred might well justify Mr Davis’ belief that the summary termination of his employment occurred for a collateral purpose. Whilst the proper procedural steps were taken in Mr Davis’ disciplinary proceedings, the process may have nevertheless been vitiated by pre-judgement. It is of significance that access to his computer was denied on 30 January 2013, prior to his disciplinary meeting that morning. That enables a conclusion to be drawn that the decision to terminate Mr Davis’ employment had been made prior to the meeting.

44       Given that Mr Davis’ summary termination was not justified, he is entitled to be paid in lieu of notice.

Annual Leave

45       The payslip issued by the Respondent to Mr Davis in January 2013 showed that he was owed 226.76 hours of accrued annual leave. Following his termination he was only paid for 70.56 hours. Mr Davis says that Respondent is obligated to pay him the balance of his accrued annual leave entitlement, being 156.2 hours at the rate of $50.21 per hour, totalling an amount of $7,842.80.

46       The Respondent denies Mr Davis’ claim in this regard for the following two reasons:

• that the payslip showing the accrued leave is incorrect; and
• in any event there was an agreement that time taken off on Friday afternoons would be treated as annual leave unless set-off by time worked on Saturdays. In the circumstances, Mr Davis has used all of his accrued annual leave entitlements.

47       The National Employment Standards in the FW Act require employers to pay accrued leave entitlements upon an employee’s termination of employment, unless there is written agreement from the employee to do otherwise. Mr Davis denies any such agreement, let alone a written agreement.

Accrued Annual Leave Entitlement Upon Termination of Employment

Incorrect Entitlement shown on Payslip

48       Ms Shakeshaft contends that Mr Davis’ payslips produced by her company are inaccurate for two reasons. Firstly, she says that the 226.76 hours of accrued annual leave as shown on the January 2013 payslip is not correct. She testified that the Respondent’s Office Manager, Ms Peckham, recently discovered old payslips evidencing errors. Ms Peckham’s evidence supports that of Ms Shakeshaft concerning her discovery of those old pay slips. Secondly, a comparison of leave accrued by Mr Davis, against actual leave taken by him, indicates the figure to be incorrect.

49       Ms Shakeshaft has produced payslips for June and July 2010 (Exhibits 2.1 – 2.3). The payslip for 23 June 2010 shows the entitlement for “Holiday Leave PD and TY” to be 85.54. The 24 July 2010 payslip shows the “Holiday Leave PD and TY” to be minus 179.90. The next payslip, dated 25 July 2010, shows “Holiday Leave Accrual” to be 158.31 hours. It is to be noted that as at 25 July 2010 there was a change in terminology used in the description of the entitlement.

50       Ms Shakeshaft says that the error is obvious on its face and that Mr Davis’ annual leave entitlement was inappropriately inflated as at 25 July 2010. She says that the error has continued to flow through to January 2013. She suspects that Mr Davis, who at the time was responsible for the payroll system, may have had a part to play in what occurred.

51       In determining the issue concerning the accuracy of Mr Davis’ January 2013 payslip, it suffices to say that there is not a shred of evidence which would support Ms Shakeshaft’s contention that Mr Davis has fraudulently or otherwise inflated his annual leave entitlement.

52       Further, the mere production of Exhibits 2.1 – 2.3 does not assist the Respondent. The pay slips alone without source documents do not demonstrate error. The documents on their face do not and cannot explain the reasons for the changes. I do not know what was behind the changes made. For all I know the changes may have been made to correct an earlier error. I do not know whether the change in terminology from “Holiday Leave PD and TY” to “Holiday Leave Accrual” has anything to do with it. Whether the letters “PD and TY” had any particular value later converted, I do not know. Although Exhibits 2.1 – 2.3 appear to show anomalous values, I cannot conclude that the entitlement ultimately settled on in Exhibit 2.3 is wrong.

53       The Respondent’s payslip issued on 25 January 2013 with respect to Mr Davis, shows that he had accrued 226.76 hours of annual leave. Prima facie, that is his entitlement unless that prima facie evidence is otherwise displaced. An audit may well have assisted the Respondent but that has not been done. In the end result the prima facie correctness of the Respondent’s own payslip has not been displaced.

54       I now move to consider the second limb of Ms Shakeshaft’s argument. Ms Shakeshaft has, for the purpose of this hearing, created a document (Exhibit 4) in which she set out details of leave accrued and taken by Mr Davis. She suggests that the annual leave accrued by him over the entire period of his employment with the Respondent amounted to 712.5 hours, and the leave taken was 563.8 hours. However, she has not produced any source documents which support those statements.

55       Although I have some of Mr Davis’ payslips going back to 1 January 2010, I do not have them all. Without all of the payslips, Ms Shakeshaft’s calculations cannot be verified and her statements constitute no more than bare assertions. I place no weight on her Exhibit 4.

Alleged Agreement Regarding Friday Afternoons

56       Ms Shakeshaft asserts that there was an agreement to treat time taken by Mr Davis on Friday afternoons as annual leave, unless equivalent time was worked on Saturdays.

57       I do not accept Ms Shakeshaft’s evidence in that regard and find her assertion to be untrue. When cross-examined in relation to the terms of the alleged agreement and the circumstances in which it was entered into, Ms Shakeshaft was vague and evasive. She was unable to specifically state the time, place and circumstance of the alleged verbal agreement. Further, there is no documentary evidence which supports the creation or existence of the alleged agreement. There was not, prior to Mr Davis’ employment being terminated, any written confirmation of the alleged agreement, nor was there ever any attempt made to enforce its terms. Interestingly, there was no accounting of the leave allegedly taken by Mr Davis on Friday afternoons. These facts all support Mr Davis’ position that there was no such agreement. The alleged agreement is a recent invention by the Respondent, aimed at denying Mr Davis his entitlement.

58       Mr Davis is entitled to be paid for the 156.20 hours of accrued annual leave which remains outstanding.

Result

59       The Claimant is entitled to recover $15,374.30 comprised as follows:

60       The Respondent is ordered to pay the Claimant $15,374.30. In view of the claim for interest it is appropriate that an order be made, pursuant to section 247 of the FW Act, allowing interest. The Respondent shall also pay interest on $15,374.30 at the rate of 6% per annum, calculated from 1 February 2013 to 19 September 2013, which amounts to $583.80.

G CICCHINI

INDUSTRIAL MAGISTRATE