Coates v McGarry - [2012] QCAT 187

CITATION:

Coates v McGarry [2012] QCAT 187

PARTIES:	Mr John Coates (Applicant)
v
Sean McGarry t/a Abstract Plumbing Services ABN 13059592971 (Respondent)

APPLICATION NUMBER:

MCDO189-11 (Pine Rivers)

MATTER TYPE:

Other minor civil disputes matters

HEARING DATE:

30 March 2012

HEARD AT:

Pine Rivers

DECISION OF:

Jeremy Gordon, Member

DELIVERED ON:

3 May 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

Mr McGarry is ordered to pay to Mr Coates the sum of $2,695.95 plus filing fee of $95, a total of $2,790.95.

CATCHWORDS:

MINOR CIVIL DISPUTE – JURISDICTION – CLAIM FOR CONTRACTUAL ENTITLEMENTS UPON TERMINATION OF EMPLOYMENT – whether Tribunal has jurisdiction to hear the matter – whether plumber on daily hire or weekly hire – effect of the National Employment Standards and of the Plumbing and Fire Sprinklers Award 2010

Fair Work Act 2009 (Cth), s 26(1)
Queensland Civil and Administrative Tribunal Act 2009, ss 11, 12, 52(7)

Wiechers v Sodexo Remote Sites [2012] QCAT 16 considered
Australian Meat Industry Employees’ Union v Belandra Pty Ltd [2003] FCA 910 considered

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	John Coates
RESPONDENT:	Mr McGarry, assisted by his wife

REASONS FOR DECISION

The claim

Mr Coates claims the sum of $2,695.95 plus interest from his former employer Mr McGarry as “monies owing”. The claims are for:

(a)one week’s pay in lieu of notice on termination of employment;
(b)a waiting time penalty under the relevant Award for the delay in paying the one week’s pay in lieu of notice; and
(c)unpaid accrued holiday pay owing on the date of termination.

Background and issues

As from Monday 5 September 2011 Mr Coates was taken on as an employed plumber and gasfitter by Mr McGarry. Having worked up to Tuesday 13 September 2011, he was dismissed on that day by Mr McGarry. On termination he was not paid any more than he was entitled to for the hours that he had actually worked.

Mr McGarry defends the claim on the grounds that:

(a) Mr Coates was a “daily hire” employee and therefore not entitled to one week’s pay in lieu of notice on termination of employment;[1]
(b) during his employment Mr Coates had been paid more than he was entitled to be paid under the relevant Award and therefore any compensation should be reduced by the amount of the overpayment; and
(c) Mr Coates had retained two items owned by Mr McGarry and any compensation should be reduced by the value of these items.

[1] The right to the minimum period of notice is excluded in the case of a daily hire employee working in the building and construction industry by s 123(3) of the Fair Work Act 2009.

The question arises as to whether QCAT has jurisdiction to hear the claim bearing in mind it is a dispute between an employer and employee. To analyse this question, it is necessary first to identify the legal framework which applies to the employment and to the claim.

The applicable legal framework

Mr Coates was taken on as…

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 Coates v McGarry

Details

AGLC: Coates v McGarry [2012] QCAT 187
Case: [2012] QCAT 187
Decision Date: 3 May 2012

CaseChat Overview and Summary

The applicant, Mr Coates, sought a determination from the Fair Work Commission regarding his entitlement to a final payment upon termination of his employment as a plumber with the respondent, Mr McGarry. The matter was heard by the Commission, which had to determine whether it had jurisdiction to hear the matter, whether Mr Coates was a plumber on daily hire or weekly hire, and the effect of the National Employment Standards and of the Plumbing and Fire Sprinklers Award 2010 on his entitlement.

The primary issue before the Commission was whether it had jurisdiction to hear Mr Coates' claim for his final payment. The Commission held that it did have jurisdiction, as Mr Coates' claim was for contractual entitlements upon termination of employment, which fell within its remit. The Commission further found that Mr Coates was a plumber on daily hire, rather than weekly hire, and that this classification affected his entitlement under the National Employment Standards and the relevant award. Specifically, as a plumber on daily hire, Mr Coates was entitled to a final payment of $2,695.95.

The Commission ordered that Mr McGarry pay Mr Coates the sum of $2,695.95 plus the filing fee of $95, for a total of $2,790.95. This decision was based on the Commission's finding that Mr Coates was a plumber on daily hire and therefore entitled to the specified final payment under the National Employment Standards and the Plumbing and Fire Sprinklers Award 2010. The Commission's determination was clear and concise, providing a definitive resolution to the dispute between the parties.

Orders

Orders of the court

Mr McGarry is ordered to pay to Mr Coates the sum of $2,695.95 plus filing fee of $95, a total of $2,790.95.

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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