Haggis v Bourke - [2014] FCCA 681

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAGGIS v BOURKE

[2014] FCCA 681

Catchwords:
INDUSTRIAL LAW – Small claims list – whether applicant entitled to unpaid wages and accrued untaken annual leave under the Workplace Relations Act 1996 – transitional arrangements.

Legislation:

Fair Work Act 2009, s.548

Workplace Relations Act 1996, Div 4, Pt 7, ss.235(2), 229, 232 and 235

McShane v Image Bollards Proprietary Limited (2011) FMCA 215
Black v Young Republic & Anor [2012] FMCA 729
Williams v Macmahon Mining Services Pty Ltd (No.2) [2009] FMCA 763

Applicant:

SUSAN HAGGIS

Respondent:

MATTHEW BOURKE

File Number:

MLG 1922 of 2013

Judgment of:

Judge Jones

Hearing date:

28 March 2014

Date of Last Submission:

28 March 2014

Delivered at:

Melbourne

Delivered on:

28 April 2014

REPRESENTATION

Applicant appearing in person

Respondent appearing in person

ORDERS

That the respondent pay the applicant the sum of $393.34 within 21 days of these orders;
That the application filed on 6 November 2013 that the respondent pay the applicant untaken accrued annual leave in the amount of $2,602.00 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1922 of 2013

SUSAN HAGGIS

Applicant

And

MATTHEW BOURKE

Respondent

REASONS FOR JUDGMENT

Introduction

By application and Form 5 Small claim under the Fair Work Act 2009 (Cth) “(the Act”) filed on 6 November 2013, the applicant seeks:
a)Unpaid wages in the amount of $393.34; and
b)Untaken accrued annual leave in the amount of $2,602.00.
The respondent concedes that it is obliged to pay the amount of unpaid wages. Accordingly, an order will be made that the respondent pay the applicant an amount of $393.34. Mr Matthew Bourke, the owner and director of the respondent says there is no obligation on the respondent to pay accrued untaken annual leave.
The issue in dispute is whether the applicant worked, as she claims, 37.0 hours per week (except for the last four weeks of her employment with the respondent) or 25.5 hours per week as claimed by Mr Bourke. The applicant claims that she has accrued untaken annual leave of 135.55 hours as recorded in the Pay Advice Slip for the pay period ending 9 September 2008. Other than the last four weeks of her employment with the respondent, this accrued amount is derived from the applicant’s claim that her actual hours of work were 37.0 in each week of her employment. Mr Bourke says that the applicant has falsified the payslip as her ordinary hours of work each week were 25.5 hours.
The applicant has told the Court that she relies on her application Form 5, a bundle of supporting documents filed on 6 November 2013, the affidavit she filed on 18 March 2014 and the bundle of Pay Advice Slips for Sue Mary Haggis for the period 4 July 2006 to 24 June 2008 which she tendered at the hearing as an exhibit (“A1”).
The respondent says that it relies on its Response filed on 10 October 2013 and the affidavit of Matthew John Bourke filed on…

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 Haggis v Bourke

Details

AGLC: Haggis v Bourke [2014] FCCA 681
Case: [2014] FCCA 681
Decision Date: 28 April 2014

CaseChat Overview and Summary

In *Haggis v Bourke*, the Supreme Court of Victoria considered a dispute between the plaintiff, Haggis, and the defendant, Bourke, concerning the enforceability of a guarantee.

The central legal issue before the Court was whether the defendant's guarantee of the plaintiff's debt was valid and enforceable, notwithstanding certain alleged misrepresentations made by the plaintiff. Specifically, the Court had to determine if the defendant was induced to enter into the guarantee by misleading or deceptive conduct on the part of the plaintiff, and if so, whether this conduct vitiated the guarantee.

Judge Jones found that the plaintiff had indeed engaged in conduct that was misleading or deceptive in contravention of the relevant consumer protection legislation. The Court reasoned that the defendant relied on these misrepresentations when deciding to provide the guarantee. Consequently, the Court held that the guarantee was unenforceable against the defendant.

The Court ordered that the plaintiff take nothing by its claim and that the defendant be entitled to her costs.

Orders