Ajax v Toll Transport Pty Ltd

[2012] QCAT 76

CITATION: Ajax v Toll Transport Pty Ltd [2012] QCAT 76

PARTIES:	Ross Anthony Ajax (Applicant)
v
Toll Transport Pty Ltd ACN 31006604191 trading as Toll Project Services (TPS) Business Unit part of Toll Global Forwarding (TGF) (Respondent)

APPLICATION NUMBER: MCDO1642-11

MATTER TYPE: Other minor civil disputes matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: John Bertelsen, Adjudicator

DELIVERED ON: 17 February 2012

DELIVERED AT: Brisbane

ORDERS MADE:

The Tribunal’s decision of 22 November 2011 is amended to read as follows:

[1]   The respondent pay to the applicant the sum of $27,707.39 for and on account of salary, tax, superannuation, interest and fees.

CATCHWORDS: Totality of monetary order made – whether inclusive of salary, tax and superannuation –  construction of decision according to the record – amendment for clarity

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. The application was a claim for salary owing.  It was heard by the Tribunal on 22 November 2011 at Brisbane.  At the conclusion of the hearing an oral decision was given and an order made as follows:

“the respondent pay to the applicant the sum of $27,707.39 within 14 days.”

1. On 16 December 2011 the respondent filed an application for correction/amendment of the Tribunal’s decision.  The respondent asserted substantial compliance with the Tribunal’s order in that it paid the sum of $27,707.39 on 7 December 2011 as follows:

Net payment to applicant   $15,499.09
           Tax  $  9,714.63
           Superannuation                 $  2,493.67
           Total  $27,707.39

1. The applicant asserted that the sum of $27,709.39 ought be paid to him personally with issues of taxation and superannuation to be addressed separately by the respondent.  The applicant has entered judgement against the respondent in the Magistrates Court for $12,208.30 ($9,714.63 + $2,493.67).

1. The applicant’s own application at attachment C spells out the applicant’s claim.  It is clearly expressed in gross terms.  The record shows that during the course of the hearing the applicant’s claim was always in the context of his total employment package i.e. salary, tax and superannuation.  The letter of appointment the applicant filed as attachment B with his application was proffered by the applicant as the benchmark by which underpayment for the disputed period of employment ought properly be determined.  That letter provided for gross salary of $4,985 per week plus 9% superannuation contribution i.e. $712.14 per day plus 9% superannuation.  The applicant’s own adjustment calculation at attachment C to his application claims $710.14 per day plus 9% superannuation (in the event $710.14 was adopted by the Tribunal as the daily gross rate of pay). 

1. The calculations made by the Tribunal particularly towards and at the conclusion of the hearing make it abundantly clear that salary before tax was being calculated.

1. The gross salary the Tribunal considered ought to have been paid in the underpayment period as discerned by the Tribunal was calculated together with superannuation calculated at 9% of the gross salary.  Gross payment made by the respondent during the underpayment period was deducted. 

1. The applicant in his response to the respondent’s application for correction/amendment asserted “that issues of taxation and superannuation are not the concerns of the Tribunal”.  That is true here in the context that it is not for the Tribunal to micromanage exactly how much ought to be paid directly to the applicant and how much ought to be deducted as tax or applied as superannuation.  That would no doubt vary from salary earner to salary earner.

1. What is certain is that the liability of the respondent on account of salary, tax and superannuation is contained within the totality of the Tribunal’s decision in the sum of $27,707.39.

1. For clarity calculations as per the record were as follows:

   49 days @ $710.14 = $34,796.86
              Superannuation for 49 days @ 9% of that sum of $34,976.86 = $3131.70
              Total $37,928.56
              Less gross sum already paid $12,405.00
              That leaves $25,523.56

1. The applicant claimed $24,941.26 and was accordingly constrained to that figure.  The applicant was allowed interest of $2,494.13, his filing fee of $255, service fee of $15 and searches of $12, a total of in fact $27,717.39.  The applicant had claimed $27,707.39 in his application (a minor miscalculation) and was once again constrained to the figure nominated in his application.  Accordingly it was ordered that the respondent pay to the applicant the sum of $27,707.39 within 14 days.

1. For clarity on the record therefore the Tribunal’s decision of 22 November 2011 is amended to read as follows:

Amended Order

1. The respondent pay to the applicant the sum of $27,707.39 for and on account of salary, tax, superannuation, interest and fees.