Farmer v King

[2014] FCCA 587

FEDERAL CIRCUIT COURT OF AUSTRALIA

FARMER v KING [2014] FCCA 587

Catchwords:
INDUSTRIAL LAW – Fair Work small claims.

PRACTICE & PROCEDURE – No appearance by the respondent – whether application should proceed ex parte – whether applicant entitled to unpaid wages, unpaid annual leave and annual leave loading – judgment entered against the respondent.

Legislation:

Fair Work Act 2009 (Cth). s.87

Applicant: NATALIE FARMER

Respondent: LIA-BELLE KING

File Number: SYG 3012 of 2013

Judgment of: Judge Emmett

Hearing date: 25 March 2014

Date of Last Submission: 25 March 2014

Delivered at: Sydney

Delivered on: 25 March 2014

REPRESENTATION

Solicitors for the Applicant

Mr Stephen Wawn

(Stephen Wawn and Associate Lawyers)

No appearance by or on behalf of the respondent

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3012 of 2013

NATALIE FARMER

Applicant

And

LIA-BELLE KING 

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application, filed on 4 December 2013, in which the applicant seeks payment for unpaid annual leave, unpaid annual leave loading, and unpaid weekly wages as a ‘Level 3 Clerk’, pursuant to the Clerks – Private Sector Award 2010 (“the Award”)

2. The applicant seeks leave of the Court to proceed ex parte this morning with her application.

3. In support of that application, the applicant’s solicitor, Mr Stephen Wawn, read the Affidavit of Service of Henry Malcolm Carmichael, sworn 20 December 2013 and filed in Court today, annexing a copy of the initiating application and Form 5 that were filed by the applicant on 4 December 2013.

4. On the basis of the evidence in the Affidavit of Service of Mr Carmichael, I am satisfied that the applicant was duly served with the application and Form 5 on 20 December 2013. In the circumstances the respondent has had sufficient time to file a Response and participate in the proceeding.

5. Yesterday, on 24 March 2014, an email was sent to the Registry of this Court at 4:54pm, seeking an adjournment of today’s hearing. That email is in the following terms:

   “Hello,

   I hope you can urgently assist my enquiry.

   I am due to attend court tomorrow at 10am, the case number is SYG3012/2013

   Due to two factors, one being I run a business and the person I had arranged to cover my absence has just notified me that they are unable to cover me, the second being I have not heard back from my lawyer, I am hoping to have the case date changed so that both my lawyer and myself my attend.

   I do not want  the case to go ahead without me and my lawyers attendance please.

   Reasons being:

   Natalie signed a contract saying she agreed to a specified wage amount and now she is disputing the agreed wage even though she was initially happy to work for that amount

   Natalie is claiming leave loading however she is not entitled to leave loading as she was employed for less than 12 months, and she was only a part time employee

   Natalie also received over $3000 in 'bonuses' during the time she worked at Our Kingdom, which were paid in the form of clothing and accessories

   I have previously tried to enter into a payment plan with Natalie to pay the outstanding wages and she denied me the ability to do so

   During her time of employment I was suffering a nervous breakdown and post-traumatic stress disorder (all medically documented, which affected my ability to run the business effectively. I have since enlisted an accountant and am having all by business financials sorted and psychological illness also being managed)

   At the end of this financial year I may by closing the business and filing for bankruptcy

   Please can you get back to regarding the above.

   Kind regards,

   Lia-Belle”

6. The applicant was unaware of the email or its content. It is clear from that email that the respondent is aware of today’s scheduled Court event. The respondent has had since 4 December 2013 to obtain legal advice or otherwise participate in this proceeding.  The matters raised in the respondent’s email were sent at 4:54pm on the evening before the hearing. The assertions made in the email were not accompanied by any evidence. In the circumstances, in the absence of the consent of the applicant to adjourn the hearing, I am not satisfied that it is in the interests of justice to adjourn the hearing.

7. Accordingly, I grant leave to the applicant to proceed with the application ex parte today.

8. The applicant gave sworn evidence before me this morning in which she adopted the information provided in Part I of the Form 5, filed with her Application, as true and correct. I note that the applicant has attached various financial records in support of the claims referred to in Part I of the Form 5. 

9. In support of the applicant’s substantive application, Mr Wawn tendered a copy of the Award. That document was marked ‘Exhibit 1A’.

10. The Court was directed to the duties of a Level 3 Clerk as identified in the Award, and I am satisfied that the work or services performed by the applicant as stated in the Form 5 are at Level 3 of the Award.

11. In the circumstances and in the absence of any evidence to the contrary, I am satisfied that the claims made by the applicant, as particularised in the details of Part I of the Form 5, have been made out.

12. In the circumstances, I am satisfied that the applicant is entitled to the payments that she seeks.

13. I accept that the applicant was employed for 24 weeks as an Assistant Manager at the showroom of the respondent’s business.

14. I am satisfied that, pursuant to the Award, the applicant was entitled to be paid at total of $15,415.90 for the duration of her employment period, including annual leave and annual leave loading, pursuant to s.87 of the Fair Work Act 2009 (Cth). I accept that the applicant has received $6,610.00 from the respondent. This leaves an amount of $7,523.60 in unpaid wages, plus $1091.32 for annual leave and $190.98 for annual leave loading, owing to the applicant, leaving a total amount owing to the applicant of $8,805.90.

15. Accordingly, judgment should be entered for the applicant in the total sum of $8,805.90.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date: 2 April 2014