ALCHIN v LAZAR
[2012] FMCA 573
•28 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALCHIN v LAZAR | [2012] FMCA 573 |
| INDUSTRIAL LAW – Fair Work small claims – no appearance by the respondent – applicant entitled to unpaid wages and payment in lieu of notice upon termination. |
| Fair Work Act 2009 (Cth), ss.117, 542 |
| Applicant: | AMY ALCHIN |
| Respondent: | NATALIE LAZAR |
| File Number: | SYG 872 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 28 June 2012 |
| Date of Last Submission: | 28 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 28 June 2012 |
REPRESENTATION
| The applicant appeared in person. |
| No appearance by or on behalf of the respondent. |
ORDERS
Judgment for the applicant in the sum of $3,066.00.
The proceeding before this Court, commenced by way of application filed on 20 April 2012, is otherwise dismissed.
NOTE A: The judgment sum is made up of one weeks unpaid wages between 24 May 2011 and 28 May 2011 at $21 per hour for 36.5 hours making a total of $766.50; and three weeks pay at the same rate and duration for payment in lieu of notice making a total of $2299.50
NOTE B: The applicant was assisted by Ms Kovalsky, solicitor for the Fair Work Ombudsman.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 872 of 2012
| AMY ALCHIN |
Applicant
And
| NATALIE LAZAR |
Respondent
REASONS FOR JUDGMENT
Ex Tempore
By application filed on 20 April 2012, together with a “Form 5 Small Claim under the Fair Work Act 2009 (Cth)” also filed on 20 April 2012, the applicant seeks payments from the respondent for one weeks unpaid wages and payment in lieu of notice upon termination. The applicant also sought an amount of annual leave and leave loading that is no longer pressed.
The applicant seeks leave to proceed with her application this afternoon ex parte.
The solicitor for the Fair Work Ombudsman, Ms Kovalsky, assisted the applicant and read the affidavit of service of the applicant, sworn 18 June 2012, deposing that on 28 May 2012 the applicant personally served the respondent with the documents the subject of the Order made by me on 28 May 2012. The applicant states in her affidavit that she attempted to give the documents to the respondent who refused to accept them, so she put them down and left them in the presence of the respondent. In the circumstances, I am satisfied that the respondent was served in accordance with the rules of this Court and is aware of today’s hearing, and for whatever reason has chosen not to attend.
Accordingly, I am satisfied that the application to proceed ex parte by the applicant ought be granted.
The applicant gave sworn evidence that her employment with the respondent was as a nail technician who also engaged in waxing, tinting and body waxing between an unspecified date in December 2006 and 3 June 2011.
The applicant gave evidence that her employment was terminated on 3 June 2011 when she attended the offices of the respondent’s accountant and was told that she was no longer employed by the respondent.
The applicant claimed that she was not paid any wages for the week of 24 May 2011 to 28 May 2011. The applicant tendered three payslips for the periods 17 April 2011, 1 May 2011 and 8 May 2011, those documents together being Exhibit 1A.
Exhibit 1A is to the effect that the applicant was paid $21 an hour and that the hours she worked on each of those three pay periods was 27 normal hours plus 9.5 hours overtime.
I am satisfied that the relevant award to which the Court should have regard, and a copy of which was provided by the solicitor for the Fair Work Ombudsman, the Hair and Beauty Industry Award 2010, will be marked Exhibit 2A.
I am satisfied that Exhibit 2A is in respect of the hair and beauty industry and their employees. I am satisfied that the applicant was such an employee. I am also satisfied that the definition in respect of the hair and beauty industry covers the work done by the applicant.
Whilst there is no evidence before me other than the oral evidence of the applicant that she holds a Certificate II in Nail Technology from the Australian College, I accept that she was at all relevant times a nail technician holding a Certificate II in Nail Technology.
Under s.542 of the Fair Work Act 2009 (Cth), the applicant is entitled to the amount of $21 an hour in respect of her pay, even though that amount is higher than the amount provided for in the award.
In those circumstances, the applicant seeks unpaid wages for 24 May 2011 to 28 May 2011 for 36.5 hours at $21 an hour, making a total of $766.50. On the evidence before me, I am satisfied that the applicant is entitled to be paid that amount for unpaid wages.
In relation to the applicant’s application for payment in lieu of notice, I have regard to s.117 of the Fair Work Act 2009 (Cth) which relevantly provides that the applicant is entitled to three weeks payment in lieu of notice.
On the evidence before me, I am satisfied that the appropriate calculation is three weeks at 36.5 hours a week at $21 an hour, making a total sum of $2299.50. I am satisfied that the respondent is obliged to pay the applicant the sum as payment in lieu of notice upon termination.
Accordingly on the evidence and material before me, I am satisfied that judgment should be entered for the applicant in the amount of $3066.
The proceeding before this Court, commenced by way of application filed on 20 April 2012, should be otherwise dismissed.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 5 July 2012
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