2025 WAIRC 00318
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA




CITATION
:
2025 WAIRC 00318




CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
THURSDAY, 1 MAY 2025



DELIVERED
:
THURSDAY, 1 MAY 2025



FILE NO.
:
M 114 OF 2024



BETWEEN
:
MICHAEL IAN DUXBURY


CLAIMANT





AND





AERISON PTY LTD - ABN 85 060 786 656


RESPONDENT

CatchWords : INDUSTRIAL LAW – Failure pay wages and leave entitlements in full under the Fair Work Act 2009 (Cth) – Failure to pay long service leave entitlement upon termination of employment under the Long Service Leave Act 1958 (WA)
Legislation : Fair Work Act 2009 (Cth)
Long Service Leave Act 1958 (WA)
Case(s) referred
to in reasons: : Mildren v Gabbusch [2014] SAIRC 15
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27
Result : Claim proven
Representation:
Claimant : Mr M. Duxbury (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)
1 On 29 August 2024, the claimant, Michael Duxbury (Mr Duxbury), lodged a claim against his former employer, Aerison Pty Ltd (Aerison), the respondent, claiming Aerison failed to pay his entitlements under federal law and state law at the time of the cessation of his employment in contravention of the Fair Work Act 2009 (Cth) (FWA) and Long Service Leave Act 1958 (WA) (LSL).
2 Under the FWA, Mr Duxbury claims unpaid wages (including unpaid personal leave) and unpaid accrued annual leave. Under the LSL, Mr Duxbury claims unpaid long service leave. He also claims superannuation on the unpaid wages and pre-judgment interest.
3 Mr Duxbury elected to invoke the small claims procedure under s 548(1) and s 548(1A) of the FWA for the claim as it relates to unpaid wages (including unpaid personal leave) and unpaid accrued annual leave.
4 Schedule I of these reasons sets out the jurisdiction, practice and procedure of the Industrial Magistrates Court (the IMC or Court) under the FWA and the LSL.
Background Facts
5 Mr Duxbury commenced employment on a fulltime basis with the respondent on 12 September 2005 working 40 hours per week. He worked in the same business for 18 years and eight months holding various positions in that time.
6 The last employment contract between Mr Duxbury and Aerison was signed by Mr Duxbury on 14 May 2011, which set out a number of employment terms, including relevantly, his salary, superannuation, hours of work, and the requirements for the termination of the employment relationship. The employment contract also included four weeks’ annual leave per annum to be taken at a mutually convenient time; and 10 days personal and carer’s leave per annum. The employment contract also recognised the inclusion of the National Employment Standards (NES) at clause 13. Exhibit 1 – Witness Statement of Ian Duxbury dated 30 January 2025 at Attachment 1.

7 Mr Duxbury’s salary prior to the cessation of his employment was $238,000 per year or $114.42 per hour. Exhibit 1 at attachment 10.
He was paid on a weekly basis.
8 On 13 May 2024, Mr Duxbury formally resigned from his position at Aerison by sending an email to Keeshan Wadia (K Wadia), a director of Aerison. In the email he informed Aerison that in line with his contract of employment he was giving four weeks’ notice and identified his last day of employment as 7 June 2024. Exhibit 1 at attachment 9.

9 Mr Duxbury continued to work for Aerison up to 21 May 2024. On 22 May 2024, Mr Duxbury took one day of personal leave, which was approved by K Wadia. Exhibit 1 at attachment 21.
On 23 May 2024, Mr Duxbury returned to work to attend a pre-arranged meeting. On 24 May 2024, Mr Duxbury’s access to Aerison’s computer system was terminated, and he obtained a medical certificate, signed by a medical practitioner, stating he was unfit for work from 24 May 2024 to 7 June 2024. Exhibit 1 at attachment 12.

10 On 24 May 2024, Mr Duxbury booked personal leave on Aerison’s internal leave system. On 27 May 2024, K Wadia approved Mr Duxbury’s personal leave via the Definitiv Software Package (Definitiv) used by Aerison to maintain its leave accounts. Exhibit 1 at attachment 12.

11 On 29 May 2024, Mr Duxbury received an email from Luke Bowker, Human Resources Manager at Aerison, attaching a letter stating Mr Duxbury was summarily dismissed for alleged gross misconduct, material breach of contract and the violation of company values and policies. The letter did not in any way specify what comprised the alleged misconduct, breach of contract or violation of company values and policies. Exhibit 1 at attachment 13.

12 The last payslip Aerison provided to Mr Duxbury was dated 22 May 2024 where he was paid up to 17 May 2024. Mr Duxbury has not received any payment after 22 May 2024 for any work undertaken by him or personal leave taken after 17 May 2024.
13 The last payslip issued by Aerison records his leave entitlements calculated to 17 May 2024, and include long service leave of 248.44 hours; annual leave of 308.72 hours; and personal leave of 1,054 hours. Prorata long service leave was not recorded on the payslip. Exhibit 1 at attachment 10.

Mr Duxbury’s Evidence
14 Mr Duxbury relied upon his witness statement dated 30 January 2025 with included attachments.
15 When Mr Duxbury started work at Aerison it was known as HPS, and he commenced work as a tradesman in the workshop, paid on an hourly rate. In November 2005, he was transferred to a salaried role working 40 hours per week.
16 On 1 January 2018, Aerison transferred their payroll system to Definitiv, which is the earliest date he could access his payslips although Aerison has access to their previous payroll system.
17 On 6 June 2023, Aerison was placed into Administration under the control of Korda Mentha Exhibit 1 at attachment 5. Notably in this letter Korda Mentha set out Mr Duxbury’s entitlements as at 19 July 2023.
. The administration period ended on 5 October 2023. During the administration period employee information was transferred to ‘Aerison 2’ in Definitiv. At the end of the administration period employee details were transferred to ‘Aerison 3’ in Definitiv. All annual leave and long service leave balances from Aerison and ‘Aerison 2’ were amalgamated to ‘Aerison 3’ in Definitiv. Exhibit 1 at attachment 19 (large bundle of payslips).

18 A weekly timesheet was submitted to K Wadia for approval and K Wadia also approved any annual leave and long service leave taken by Mr Duxbury.
19 Mr Duxbury clarified in his oral evidence that Aerison used a webbased application for employees to book leave and maintain leave balances. A screen shot of Mr Duxbury’s application page projected his entitlements up to 29 May 2024, consistent with the entitlements recorded on Mr Duxbury’s last payslip dated 22 May 2024 in that the entitlements increased over that short period. The annual leave entitlement increased to 313.65 hours and prorata long service leave was included. There was a marginal reduction in his personal leave entitlement to 1,016.46 hours consistent with the approval of Mr Duxbury’s personal leave by K Wadia. Exhibit 1 at attachment 14.

20 Mr Duxbury confirmed in his oral evidence that at no time was he, or has he, been informed what it is that he is alleged to have done to amount to gross misconduct or a material breach of contract, or a violation of Aerison’s values and policies. Mr Duxbury speculated that it may be Aerison thought he was fabricating the reason for his personal leave, but he denied this was the case.
21 In any event, as at the date Aerison purported to summarily terminate his employment, Mr Duxbury had resigned 16 days prior, when he informed Aerison of his final date of employment which was 7 June 2024 (consistent with the termination requirements in his employment contract). Aerison could have elected to pay out Mr Duxbury’s notice period but it did not do so.
22 I find that at the time Mr Duxbury submitted the medical certificate on 24 May 2024 he had an entitlement to personal leave which more than covered the period of personal leave taken by him for the duration of his notice period, and that he was entitled to take personal leave under the terms of his employment contract and under the NES.
Federal – FWA Provisions
23 I am satisfied and I find that the respondent is an Australian proprietary company limited by shares, registered pursuant to the Corporations Act 2001 (Cth) and operates an engineering business. The respondent is a constitutional corporation within the meaning of s 12 of the FWA and is a national system employer within the meaning of s 14 of the FWA. Mr Duxbury was an individual who was employed by the respondent and is a national system employee within the meaning of s 13 of the FWA.
24 Personal or carer’s leave is an entitlement under the NES pursuant to s 61(2)(e) of the FWA.
25 Section 96(1) of the FWA states:
For each year of service with an employer (other than periods of employment as a casual employee of the employer), an employee is entitled to 10 days of paid personal/carer’s leave.
26 Relevantly, s 97 of the FWA states:
An employee may take personal/carer’s leave if the leave is taken:
(a) because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee…
27 Section 99 of the FWA states:
If, in accordance with this Subdivision, an employee takes a period of paid personal/carer's leave, the employer must pay the employee at the employee's base rate of pay for the employee's ordinary hours of work in the period.
28 Section 107(3) of the FWA states:
An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:
(a) if it is paid personal/carer’s leave – the leave is taken for a reason specified in section 97…
29 I note Mr Duxbury provided his employer with a medical certificate. On the evidence, he was not required by his employer to do so, but he did do so. It is not for the Court to now go behind the contents of the medical certificate provided by the general practitioner. The Court need only be satisfied that the objective basis for the leave taken by Mr Duxbury satisfied that it was taken for personal leave where he was unfit for work because of a personal illness.
30 I am satisfied that Mr Duxbury was not paid wages he was entitled to be paid both in relation to paid personal leave taken and for time he actually worked.
31 Section 323(1) of the FWA states:
An employer must pay an employee amounts payable to the employee in relation to the performance of work:
(a) in full.
32 I am satisfied, having regard to the evidence given by Mr Duxbury, in addition to the supporting evidence that he relies upon, that pursuant to s 61(2)(e), s 97, s 99 and s 323 of the FWA that he has not been paid an amount payable to him by the respondent, in relation to paid personal leave taken and in relation to the performance of work.
33 I find that between 20 May 2024 and 7 June 2024, he is owed $13,730.40 for 40 hours of work or paid personal leave for three weeks at the rate of $114.42 per hour Mr Duxbury’s originating claim at [35].
.
34 I am further satisfied he is also entitled to superannuation on that amount at the superannuation guarantee amount of 11% with the total amount owed being $1,510.35.
35 In terms of untaken accrued annual leave, s 90(1) and s 90(2) of the FWA provides:
If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee's base rate of pay for the employee's ordinary hours of work in the period.
If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.
36 Pursuant to s 61(2)(d) of the FWA, annual leave entitlements under s 90 of the FWA are a minimum standard under the NES.
37 I am satisfied, having regard to the evidence given by Mr Duxbury, consistent with the accrual balance and final payslip, that the amount of untaken paid annual leave he was entitled to was 313.65 hours, which would be paid at the base rate of pay of $114.42 per hour.
38 I observe that if there was an issue in dispute in terms of the number of accrued annual leave hours owing, this was never bought to Mr Duxbury’s attention at any time. Further, Mr Duxbury relied upon the respondent’s own records to obtain his entitlement. Nothing in Part 22, Division 6 of the FWA provides for the withholding of untaken paid annual leaving owing at the cessation of employment and, thus, in the absence of any employment instrument or other written law enabling the respondent to withhold untaken annual leave payments, the circumstances surrounding Mr Duxbury’s cessation of employment are irrelevant to this aspect of his claim.
39 That is, the outcome of Mr Duxbury’s claim for the payment of untaken paid annual leave does not depend upon whether he voluntarily left his employment or whether he was summarily dismissed for any alleged misconduct.
40 Accordingly, I find the respondent contravened s 90(2) of the FWA by failing to pay Mr Duxbury, upon the termination of his employment, an amount that would have been payable to him had he taken paid annual leave. I find this entitlement to be 313.65 hours at the base rate of pay of $114.42 per hour with the total amount being $35,887.83.
State – LSL Provisions
41 For the purposes of the LSL, an employee means a person who is employed by an employer to do work for hire or reward, including an apprentice or a person whose status is that of an employee. Section 4 of the LSL.
An entitlement to long service leave arises upon the completion of at least 10 years of continuous employment whereupon an employee is entitled to eight and two-thirds weeks’ leave. Section 8(2) of the LSL
Where an employee has completed at least seven years continuous employment, provision is made for the payment of a proportionate amount. Section 8(3) of the LSL
On termination of the employee’s employment by the employee’s death, or in any other circumstances otherwise than by the employer for serious misconduct, in respect of the number of years of such continuous employment completed since the employee last became entitled under the LSL to an amount on the basis of eight and two-thirds weeks’ for 10 years of such continuous employment. Section 8(2) and 8(3) of the LSL

42 A period of continuous employment is deemed to include certain periods of absence from duty, such as annual leave; long service leave; public holidays; sick leave to a maximum of 15 days per year and periods of military service. Section 6 of the LSL.

43 Certain events that may otherwise interrupt a period of employment are deemed not do so, including transmission of the business; authorised absences from employment; stand down periods; absence due to industrial disputes; termination on the grounds of slackness of trade; reemployment within six month; termination on any ground if reemployed within two months; reasonable absence on legitimate union business; or absence by reason of any other cause unless the employer within 14 days of the termination of the absence gives written notice to the employee that continuity is broken. Section 6 of the LSL.

44 For similar reasons related to the amount of untaken paid annual leave owed to Mr Duxbury at the time of the termination of his employment, I find that the amount of long service leave entitlements, as provided in the respondent’s records, is 375.35 hours. I accept Mr Duxbury’s evidence that he has never been informed this number of hours is incorrect. I also accept that this amount had not been paid to Mr Duxbury and that he was an employee of the respondent.
45 I am satisfied and I find that Mr Duxbury’s employment by the respondent was continuous employment, notwithstanding the respondent may have been owned by different companies and placed into administration for a period of time. None of these events disrupted his continuous employment, and I note Part 2, Division 3 of the LSL provides for the transfer of businesses whereby I am satisfied that Mr Duxbury meets the requirements under s 7H. He commenced employment with the same business operated by the respondent on 12 September 2005 and remained continually employed with that business owned by the respondent for 18 years and eight months.
46 Further, I reasonably infer from the respondent’s records provided to Mr Duxbury that the respondent recognised its LSL obligations through the transmission of the business given the amount of LSL hours recorded.
47 I am satisfied that pursuant to s 8(1) of the LSL, Mr Duxbury is an employee in accordance with, and subject to, the provisions of the LSL, entitled to the payment of long serve leave on ordinary pay by the respondent and that the requirements under s 8(2) of the LSL have been met.
48 Relevantly, pursuant to s 9(2) of the LSL, an employee whose employment is terminated is taken to have commenced long service leave on the day of termination if the employee is entitled to long service leave under s 8(2) or s 8(3), and the employment is terminated before the employee has taken all of the long service leave to which the employee is entitled.
49 Pursuant to s 9(2A) of the LSL, on the day the employee commences long service leave under s 9(2), the employer must pay the full amount to which the employee is entitled in respect of the leave to the employee.
50 Accordingly, I am satisfied that at the time of the termination of his employment, Mr Duxbury met the requirements of the LSL and was entitled to being paid the whole of his long service leave entitlement owed at this time, being 375.35 hours at the ordinary rate of pay of $114.42 per hour. This amounts to $42,947.54.
51 I observe that in relation to any allegation of gross misconduct, Mr Duxbury resigned from his employment on 13 May 2024. To the extent the respondent purported to raise an allegation of gross misconduct, this was done 16 days after his resignation on 29 May 2024. The allegation was never detailed in any way and at the date of the hearing, Mr Duxbury remains unaware of what this might have been. Thus, it might have been open to the Court to infer that the allegation was made without foundation, without notice to Mr Duxbury, with the purpose of escaping liability under the LSL. Simply put, the chronology of events is not in any way consistent with an allegation of gross misconduct which would vitiate the respondent’s liability for the payment of long service leave to Mr Duxbury.
Outcome
FWA
52 I am satisfied, pursuant to s 545(3) and s 548(1A) of the FWA that the respondent is required to pay an amount under the FWA, namely:
(1) $13,730.04 for unpaid wages and personal leave not paid in full in contravention of s 44 and s 323 (when read with s 96 and s 97 of the FWA); and
(2) $35,887.83 for untaken accrued annual leave in contravention of s 44 (when read with s 90(2) of the FWA).
53 I am satisfied that a contravention of s 323 of the FWA is a contravention of a civil penalty provision. I am further satisfied that a contravention of a NES is a contravention of a civil penalty provision, Section 44 of the FWA.
and that s 90(2) and s 97 of the FWA are minimum standards within the NES. Section 61(2)(d) and (e) of the FWA.

LSL
54 I am satisfied pursuant to s 9(2), s 9(2A) and s 8(2)(c) of the LSL, at the time of the termination of his employment, Mr Duxbury was entitled to be paid the full amount of his long service leave entitlement, being an amount for 375.35 hours, at the ordinary rate of pay of $114.42 per hour. This amount is $42,947.54.
Orders
1. Pursuant to s 545(3) and s 548(1A) of the FWA, and subject to any liability to the Commissioner of Taxation under the Taxation Administration Act 1953 (Cth), the respondent is to pay to the claimant the amount of:
a. $13,730.04 for unpaid wages and unpaid personal leave; and
b. $35,887.83 for untaken accrued annual leave.
2. Pursuant to s 545(3) and s 548(1A) of the FWA, the respondent is to pay to a superannuation fund for the benefit of the claimant the amount of $1,510.35.
3. Pursuant to s 547 of the FWA, the respondent is to pay pre-judgment interest on the combined amount referred to in orders 1 and 2 at 8.35% p.a from 20 May 2024 to 1 May 2025 in the amount of $4,046.97.
4. Pursuant to s 8(2), s 9(2) and s 9(2A) of the LSL, and subject to any liability to the Commissioner of Taxation under the Taxation Administration Act 1953 (Cth), the respondent is to pay to the claimant the amount of $42,947.54 for an entitlement to an amount for long service leave.
5. Pursuant to regulation 12 of the Industrial Magistrates (General Jurisdiction) Regulations 2005 (WA), the respondent is to pay pre-judgment interest on the amount referred to in order 4 at 6% p.a from 20 May 2024 to 1 May 2025 in the amount of $2,444.25.

D. SCADDAN
INDUSTRIAL MAGISTRATE

SCHEDULE I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court of Western Australia Under the Fair Work Act 2009 (Cth) and the Long Service Leave Act 1958 (WA) and the Industrial Relations Act 1979 (WA)
Jurisdiction
[1] An employee, an employee organization or an inspector may apply to an eligible State or Territory court for orders regarding a contravention of the civil penalty provisions identified in s 539(2) of the FWA.
[2] The IMC, being a court constituted by an industrial magistrate, is an ‘eligible State or Territory court’: FWA s 12 (see definitions of ‘eligible State or Territory court’ and ‘magistrates court’); Industrial Relations Act 1979 (WA) s 81, s 81B.
[3] The application to the IMC must be made within six years after the day on which the contravention of the civil penalty provision occurred: FWA s 544.
[4] The civil penalty provisions identified in s 539 of the FWA include contravening a term of the NES and failing to pay in full an amount owed under the FWA: FWA s 44(1), s 323 respectively.
[5] In respect of an election to deal with a claim using the small claims procedure in s 548 of the FWA, the employee applies for an order which relates to an amount in s 548(1A) and indicates he or she wants the small claim procedure to apply to the proceedings [by complying with the procedure prescribed].
[6] The amount referred to in s 548(1)(b) and s 548(1A)(a) of the FWA refers to:
[A]n amount that an employer was required to pay to … an employee:
(i) under [FWA] or a fair work instrument; or
(ii) because of a safety net contractual entitlement; or
(iii) because of an entitlement of the employee arising under subsection 542(1) [of the FWA].
[7] Section 12 of the FWA defines ‘safety net contractual entitlement’ to mean:
An entitlement under a contract between an employee and an employer that relates to any of the subject matters described in:
(a) Subsection 61(2) (which deals with the National Employment Standards); or
(b) Subsection 139(1) (which deals with modern awards).
[8] An obligation upon an ‘employer’ is an obligation upon a ‘national system employer’ and that term, relevantly, is defined to include ‘a corporation to which paragraph 51(xx) of the Constitution applies’: FWA s 12, s 14, s 42, s 47. A NES entitlement of an employee is an entitlement of an ‘employee’ who is a ‘national system employee’ and that term, relevantly, is defined to include ‘an individual so far as he or she is employed … by a national system employer’: FWA s 13, s 42, s 47.
[9] The IMC has exclusive jurisdiction to hear and determine all questions and disputes in relation to rights and liabilities under the LSL Act, including whether a person is or is not an employee or employer to whom the LSL Act applies, whether an employee is or has become entitled to long service leave, and the ordinary rate of pay of an employee: s 11(1)(a), (b) and (c) of the LSL Act and s 81AA of the Industrial Relations Act 1979 (WA) (IR Act).
Contravention
[10] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the court may make orders for ‘an employer to pay [to an employee] an amount … that the employer was required to pay’ under the modern award (emphasis added): FWA s 545(3)(a).
[11] The civil penalty provisions identified in s 539 of the FWA includes:
· The Core provisions set out in pt 2 - 1 of the FWA: FWA s 61(2), s 539; and
· Other terms and conditions of employment set out in Part 29 of the FWA: FWA s 323(1), s 539.
[12] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the court may make orders for:
· An employer to pay to an employee an amount that the employer was required to pay under the FWA: FWA s 545(3).
[13] In contrast to the powers of the Federal Court and the Federal Circuit Court, an eligible State or Territory court has no power to order payment by an entity other than the employer of amounts that the employer was required to pay under the FWA. For example, the IMC has no power to order that the director of an employer company make payments of amounts payable under the FWA: Mildren v Gabbusch [2014] SAIRC 15.
Burden and standard of proof
[14] In an application under the FWA and the LSL, the party making an allegation to enforce a legal right or to relieve the party of a legal obligation carries the burden of proving the allegation. The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’. In Miller v Minister of Pensions [1947] 2 All ER 372, 374, Lord Denning explained the standard in the following terms:
It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal it is not.
[15] In the context of an allegation of the breach of a civil penalty provision of the FWA it is also relevant to recall the observation of Dixon J said in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences [362].
[16] Where in this decision it is stated that a finding has been made, the finding is made on the balance of probabilities. Where it is stated that a finding has not been made or cannot be made, then no finding can be made on the balance of probabilities.
Practice and Procedure of the Industrial Magistrates Court of Western Australia
[17] Subject to the provisions of the LSL, the IR Act and the FWA, the procedure of the IMC relevant to claims under the FWA and the LSL is contained in the Industrial Magistrate's Court (General Jurisdiction) Regulations 2005 (WA) (IMC Regulations). Notably, reg 35(4) of the IMC Regulations provides the court is not bound by the rules of evidence and may inform itself on any matter and in any manner as it thinks fit.
[18] In Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27, Commissioner Sleight examined a similarly worded provision regulating the conduct of proceedings in the State Administrative Tribunal and made the following observation:
The tribunal is not bound by the rules of evidence and may inform itself in such a manner as it thinks appropriate. This does not mean that the rules of evidence are to be ignored. The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force. The drawing of an inference without evidence is an error of law. Similarly such error is shown when the tribunal bases its conclusion on its own view of a matter which requires evidence [40]. (citations omitted)