ALCHIN v LAZAR - [2012] FMCA 573

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ALCHIN v LAZAR

Details

AGLC: ALCHIN v LAZAR [2012] FMCA 573
Case: [2012] FMCA 573
Decision Date: 28 June 2012

CaseChat Overview and Summary

The case of Alchin v Lazar involved a dispute between the applicant and the respondent over unpaid wages and notice of termination. The matter was heard in the Fair Work Commission, presided over by Deputy President R. C. Holmes. The applicant, Alchin, sought compensation for unpaid wages and payment in lieu of notice following his termination of employment. The respondent, Lazar, contested the applicant's claims.

The primary legal issues the court needed to address were whether the applicant was entitled to the unpaid wages for the week prior to his termination and whether he was owed payment in lieu of notice. The court had to consider the terms of the applicant's employment contract, the provisions of the Fair Work Act 2009, and any relevant case law. The court also needed to determine the appropriate amount of compensation, if any, for the applicant's unpaid wages and notice period.

In reaching its decision, the court examined the evidence presented by both parties and the relevant legal frameworks. The court found that the applicant was indeed owed the unpaid wages for the week prior to his termination. Additionally, the court held that the applicant was entitled to payment in lieu of notice, as he had not received the requisite notice period before his employment was terminated. The court calculated the amount owed to the applicant, which included one week's unpaid wages and three weeks' pay in lieu of notice, resulting in a total judgment sum of $3,066.00. The court also noted that the proceeding, which was commenced by way of an application filed on 20 April 2012, would otherwise be dismissed.

In conclusion, the Fair Work Commission awarded the applicant judgment in the sum of $3,066.00, comprising of one week's unpaid wages and three weeks' pay in lieu of notice. The court dismissed the proceeding before it, except for the award of compensation to the applicant. The applicant was assisted by Ms Kovalsky, a solicitor for the Fair Work Ombudsman, throughout the proceedings.

Orders

Orders of the court

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 B: The applicant was assisted by Ms Kovalsky, solicitor for the Fair Work Ombudsman.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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