Barnes v Business Information Technology Group Pty Ltd

[2014] FCCA 550

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARNES v BUSINESS INFORMATION TECHNOLOGY GROUP PTY LTD [2014] FCCA 550

Catchwords:
INDUSTRIAL LAW – Fair Work small claims – whether applicant entitled to unpaid salary, unpaid superannuation, unpaid annual leave, unpaid travel expenses and payment in lieu of notice period.

Applicant: MORNÉ BARNES

Respondent: BUSINESS INFORMATION TECHNOLOGY GROUP PTY LTD (ABN 13 158 276 718)

File Number: SYG 2738 of 2013

Judgment of: Judge Emmett

Hearing date: 20 March 2014

Date of Last Submission: 20 March 2014

Delivered at: Sydney

Delivered on: 20 March 2014

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent: Mr J. Pearce

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2738 of 2013

MORNÉ BARNES

Applicant

And

BUSINESS INFORMATION TECHNOLOGY GROUP PTY LTD (ABN 13 158 276 718) 

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By Application filed on 6 November 2013 and “Form 5 Small claim under the Fair Work Act 2009 (Cth)” filed on 6 November 2013, the applicant seeks total payments from the respondent of $17,605.85 of unpaid salary, unpaid superannuation, unpaid annual leave, unpaid travel expenses, and payment in lieu of notice period. In support of the application, the applicant filed an affidavit affirmed by him on 6 November 2013 and filed on the same date.

2. The applicant was employed by the respondent as a Business Development Manager between 29 April 2013 and 18 June 2013 (“the Employment Period”).

3. The applicant read his affidavit affirmed on 6 November 2013 annexing a copy of the applicant’s employment contract, dated 4 April 2013, a termination letter signed by Mr Peter Johnson, dated 17 June 2013, and a confirmation of undertaking from the Fair Work Ombudsman dated 26 July 2013. On the basis of that evidence I accept that the applicant was employed by the respondent between 29 April 2013 and 18 June 2013.

4. The letter to the applicant from the Fair Work Ombudsman, dated 26 July 2013, was in the following terms:

   “Assisted Voluntary Resolution (AVR) Achieved

   Confirmation of Undertaking

   Dear Mr Barnes,

   I refer to the complaint lodged by you with the Fair Work Ombudsman (FWO) against BUSINESS INFORMATION TECHNOLOGY GROUP PTY LTD on 1 July 2013.

   I am writing to confirm that a resolution has been reached between you and the company following the AVR process.

   The following undertakings have been made in order to resolve this complaint:

   • The payment into your bank account an amount of $17,387.12 gross, $12,107.72 net, by 15 August 2013.

   The FWO will be taking no further action in relation to this matter at this time. Please note that the FWO reserves the right to initiate further investigation at any stage.

   If payment is not made according to the undertaking detailed above please contact me on [redacted] or by email at [redacted]. Please quote MAT-0010-0134.

   I confirm that the resolution achieved has not been subject to formal examination by the FWO and any determination of outstanding employee entitlements has not been made.”

5. The letter from the Fair Work Ombudsman in particular notes that the respondent gave an undertaking to pay into the applicant’s bank account an amount of $17,387.72 gross, being $12,107.72 net, by 15 August 2013.  That undertaking has not been complied with.

6. The respondent was represented this morning by Mr Peace of counsel. Mr Pearce informed the Court that the respondent was subject to an application to appoint a receiver in Brisbane at 10.00am this morning and that he had instructions to appear for the respondent until 11.00am. Mr Pearce informed the Court that the respondent did not dispute the facts contained in the Fair Work Ombudsman’s letter or the claims by the applicant in relation to the role in which he was employed and the duration of his employment.

7. The applicant has informed the Court that he is prepared to have the proceeding in this Court dismissed on the basis that the respondent pay to him the sum of $17,387.12 being for unpaid wages unpaid expense claim, unpaid annual leave, and payment in lieu of termination of employment. Of that sum $1,891.47 is in respect of unpaid superannuation, and that sum should be paid directly to the applicant’s nominated superannuation fund.

8. In the circumstances, judgment should be entered for the applicant in the sum of $17,387.12, of which $1,891.47 should be paid to the applicant’s nominated superannuation fund, Energy Super.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date: 2 April 2014