BROWN & BARRITT TRADING as BRADDON CHIROPRACTIC OPTIMAL HEALTH CENTRE (Civil Dispute)
[2011] ACAT 33
•8 February 2011
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BROWN & BARRITT TRADING AS BRADDON CHIROPRACTIC OPTIMAL HEALTH CENTRE (Civil Dispute) [2011] ACAT 33
XD 1227 of 2010
Catchwords: CIVIL DISPUTE – unwritten contract for casual employment – was there a term in contract for increase of remuneration? – shortfall in the pay
Tribunal: Ms J. Lennard, Senior Member
Date of Orders: 8 February 2011
Date of Reasons for Decision: 13 May 2011
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1227 of 2010
BETWEEN:
SALLY JANE ARCHER
ALKEIYA BROWN
Applicant
AND:
JASON BARRITT CHIROPRACTOR
T/AS BRADDON CHIROPRACTIC
OPTIMAL HEALTH CENTRE
Respondent
TRIBUNAL: Ms J. Lennard, Senior Member
DATE: 8 February 2011
ORDER
Respondent to pay the Applicant an amount of $78.20 within 7 days of the date of this Order.
It is noted that:
Dr Barritt has undertaken to audit the superannuation payments made on Ms Brown’s account and to correct any deficiencies within 2 months of the date of this Order.
………………………………..
Ms J Lennard
Senior Member
REASONS FOR DECISION
The Applicant was employed by the Respondent from 2 March 2009 until
15 July 2009. She was employed on a casual basis to perform office receptionist and secretarial work as needed within office hours of 9 am to 5.30 pm.
The Applicant was recruited to this employment by Mr Simon Maddox, Consultant. She had previously been known to him.
Ms Brown asserted that at the time she was recruited she was told that she would be remunerated at a rate of $22 per hour for the first month of her employment and that this would increase thereafter to $25 per hour. Ms Brown asserted that this increase would happen after the first month and that there were no benchmarks or performance criteria to be met before this increase could take effect. Ms Brown produced no evidence to support this assertion.
The ACT Civil & Administrative Tribunal (the ACAT) heard evidence from both Mr Maddox and Mr Barritt to the effect that the agreed starting rate was $22 per hour. The evidence as to whether there was to be an increase was inconsistent: Mr Barritt stated that he had no knowledge of any proposed increase; but Mr Maddox in a written statement said that Ms Brown had been told that ‘the hourly rate would be periodically reviewed and dependent upon her performance, the hourly rate would be adjusted’.
On the evidence before the tribunal it is possible to conclude that, during the time she was employed by the Respondent, Ms Brown raised the issue of an increase with Mr Maddox, but not with Mr Barritt. It appears that Mr Maddox did not raise this with Mr Barritt.
On the little evidence provided to the tribunal it is clear that Ms Brown’s work was not regarded as satisfactory by the Respondent, and, that this had been raised by the Respondent with Mr Maddox.
The terms of a contract must be made clear at the time of formation of the contract. The rate of pay is a very important part of any contract of employment. There is no evidence before the tribunal that the rate of pay was other than $22 per hour. There was no written contract, the presence of any terms as to increase was denied by the respondent and the applicant was not able to establish on the balance of probabilities that any such term was discussed or agreed to by the parties.
Ms Brown’s application included claims for back pay and payment for unused leave. There was a provision made for leave on the pay slips provided to the tribunal. This appears to have been a mistake made by the accountant engaged by the Respondent. Ms Brown was a casual worker and did not accumulate holiday or sick leave.
A comparison of time sheets and pay slips revealed that there was a short fall of $78.20, again due to an error on the part of the accountant. The respondent was ordered to pay that amount to the Applicant within 7 days of the date of the Order.
The ACAT also noted that the Respondent had given an undertaking to audit the superannuation payments made on Ms Brown’s behalf and to correct deficiencies, if any, identified within 2 months of the date of the Order.
………………………………..
Ms J Lennard
Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO:
APPLICANT:
RESPONDENT:
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT:
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER/S:
DATE/S OF HEARING: PLACE: CANBERRA
DATE/S OF DECISION: PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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