COELHO v Cassaniti
[2012] FMCA 812
•30 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COELHO v CASSANITI | [2012] FMCA 812 |
| INDUSTRIAL LAW – Fair Work small claims – no appearance by the respondent – whether applicant entitled to payment in lieu of notice, unpaid annual leave and unpaid annual leave loading. |
| Fair Work Act 2009 (Cth), ss.87, 117 |
| Applicant: | CRISTINA COELHO |
| Respondent: | GERARDO CASSANITI ABN 89 106 657 223 |
| File Number: | SYG 1142 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 30 August 2012 |
| Date of Last Submission: | 30 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 30 August 2012 |
REPRESENTATION
| The applicant appeared in person and was assisted by Ms A Kovalsky, solicitor with the office of the Fair Work Ombudsman |
| No appearance by or on behalf of the respondent |
ORDERS
Leave be granted to the applicant to proceed with the application ex parte.
Judgment for the applicant in the sum of $3,364.31.
The judgment sum be paid by the respondent within 28 days.
NOTE A: The judgment sum is made up of unpaid annual leave of $2,004.60; unpaid annual leave loading of $256.71; and payment in lieu of notice upon termination of $1,103.00.
NOTE B: The relevant award is the Clerks – Private Sector Award 2010, tendered by the applicant and marked Exhibit 1A.
NOTE C: The applicant read affidavits of service sworn by her and filed on 25 June 2012 and 6 August 2012.
NOTE D: The applicant was assisted by Ms Kovalsky, solicitor with the office of the Fair Work Ombudsman.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1142 of 2012
| CRISTINA COELHO |
Applicant
And
| GERARDO CASSANITI ABN 89 106 657 223 |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
By application filed on 28 May 2012 and “Form 5 Small claim under the Fair Work Act 2009 (Cth)” (“Form 5”) filed on the same date, the applicant seeks payment from the respondent in respect of payment in lieu of notice, unpaid annual leave and unpaid annual leave loading.
The applicant wishes today to proceed with her application ex parte and, in support of that application, she read two affidavits of service, each affidavit sworn by her.
The first affidavit of service is dated 25 June 2012 and relates to service on the respondent of the application and Form 5 upon the respondent on 28 May 2012.
The second affidavit of service on which the applicant relies is one filed on 6 August 2012 deposing to service upon the respondent of a copy of the Court’s order, made 29 June 2012, setting the matter down for hearing today.
I note that in respect of each affidavit of service, service was effected personally by the applicant upon the respondent and, in the circumstances, I am satisfied that service was effected in accordance with the rules of this Court.
In light of the evidence before me, I am further satisfied that the respondent has had a reasonable time in which to participate in the proceeding.
There has been no communication received by this Court from the respondent either seeking an adjournment of today’s hearing or for any other reason. Further, there has been no document filed by the respondent in response to the application filed. Accordingly, I am satisfied that it is appropriate that leave be granted to the applicant to proceed ex parte today with her application.
Ms Kovalsky, solicitor with the office of the Fair Work Ombudsman, assisted the applicant in the presentation of her application to the Court this morning.
The applicant gave sworn evidence adopting the information contained in her Form 5 as true and correct and also adopted as accurate, to the extent that it is relevant, information attached to her application.
In the circumstances, I accept that the applicant was employed between 15 January 2001 and 6 April 2011 as a travel agent with various duties including booking flights, advising clients in respect of travel information and office management, including the preparation of business accounts.
Ms Kovalsky tendered the relevant award being the Clerks - Private Sector Award 2010, which was marked Exhibit 1A. I am satisfied that the characteristics of the applicant’s employment are such that the correct award to govern the applicant’s work is the Clerks - Private Sector Award 2010.
The award rate is less than the hourly rate paid by the respondent. I accept that, in accordance with documents provided by the respondent to the Fair Work inspector, that the applicant was paid at an hourly rate of $27.54.
I accept the applicant’s evidence that she worked 28 hours a week. The weekly amount paid to the applicant on the basis of a 28 hour week as $27.54 per hour is $771 a week.
Pursuant to clause 13.1 of Exhibit 1A, the notice period to which the applicant is entitled is referred to in the National Employment Standard which, in turn, refers to s.117 of the Fair Work Act 2009 (Cth). That section provides for four weeks notice.
The applicant stated that she received notice on 31 March 2011 with the termination to be effective from 6 April 2011. The only other evidence before the Court of any earlier date is a handwritten note on a copy of a notice to produce addressed to the respondent identifying 15 March 2011. That notice to produce is annexure B1 to the applicant’s application.
In the circumstances, I prefer the evidence of the applicant and I accept that the applicant’s termination was effective from 6 April 2011.
I accept the applicant’s evidence that her claim is in respect of three weeks pay in lieu of notice, totalling an amount of $1,103. That figure is calculated on the basis that the total amount owing for those three weeks was $2,313, however, the applicant received payments after 16 April 2011 of two amounts, $1,060 and $150. Those amounts are properly deducted from the total owed, leaving a balance of $1,103.
In the circumstances, I am satisfied that the applicant is entitled to payment of that amount in lieu of notice.
The applicant also claims unpaid annual leave. Clause 29.1 of Exhibit 1A refers the entitlement of annual leave to the National Employment Standard which, in turn, refers to the Fair Work Act 2009 (Cth). Section 87 of the Fair Work Act 2009 (Cth) provides that four weeks leave accrue each year and accrue progressively.
Annexure B2 to the application is a document provided by the respondent which indicates that, as at the date of termination, three weeks annual leave was due and owing. In fact, the applicant seeks annual leave in respect of 2.6 weeks in accordance with the calculation made by the Fair Work Ombudsman inspector.
In the circumstances, I accept that the applicant is entitled to annual leave at the rate of $771 a week for 2.6 weeks, making a total of unpaid annual leave of $2,004.60.
The applicant also seeks annual leave loading in accordance with clause 29.3 of Exhibit 1A of 17.5 per cent in respect of the unpaid annual leave. I am satisfied that the applicant is also entitled to that loading. I accept that the calculation of that amount on the figures referred to above is $256.71.
In the circumstances, judgment should be entered for the applicant in the total amount of $3,364.31 made up of $1,103 in respect of payment in lieu of notice, unpaid annual leave totalling $2,004.60, and unpaid annual leave loading totalling $256.71.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 6 September 2012
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