Halliday v Sharon-Lee Holdings Pty Ltd (ACN 112 486 030)
[2012] FMCA 1111
•1 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| Halliday v Sharon-Lee Holdings Pty Ltd (ACN 112 486 030) | [2012] FMCA 1111 |
| INDUSTRIAL LAW – Fair Work small claims – no appearance by the respondent – leave granted to the applicant to proceed ex parte – applicant entitled to unpaid wages, unpaid annual leave and payment in lieu of notice. |
| Fair Work Act 2009 (Cth), s.90 |
| Applicant: | MICHELLE HALLIDAY |
| Respondent: | SHARON LEE HOLDINGS PTY LTD (ACN 112 486 030) |
| File Number: | SYG 1527 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 1 November 2012 |
| Date of Last Submission: | 1 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 1 November 2012 |
REPRESENTATION
| The applicant appeared in person with the assistance of Ms M Bwadi of the office of the Fair Work Ombudsman. |
| There was no appearance by or on behalf of the respondent. |
ORDERS
Judgment for the applicant in the sum of $4,058.22 (“the Judgment Sum”).
The Judgment Sum is to be paid within 28 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1527 of 2012
| MICHELLE HALLIDAY |
Applicant
And
| SHARON LEE HOLDINGS PTY LTD (ACN 112 486 030) |
Respondent
REASONS FOR JUDGMENT
Ex Tempore
By application filed on 13 July 2012 and “Form 5 Small Claim under the Fair Work Act 2009 (Cth)” (“Form 5”) filed on the same date, the applicant seeks payments from the respondent for unpaid wages and unpaid annual leave.
The applicant seeks leave to proceed with her application today ex parte. In support of that application, the applicant read two affidavits of service by Marcel Smithers, one sworn 20 July 2012, the other sworn 31 October 2012. Those affidavits satisfy the service requirements and annex a copy of the registered business office of the respondent.
In the circumstances, I am satisfied that the respondent was duly served with a copy of the Application and Form 5 on 20 July 2012 in accordance with the rules of the Court.
Further, I accept the evidence of Mr Smithers that on 24 October 2012 a copy of the applicant's affidavit, sworn 22 October 2012, was sent by express post and emailed to Ms Sharon Clarke, the sole director of the respondent.
I also note in the affidavit of Mr Smithers, sworn 31 October 2012, that during a conversation with Ms Clarke, Ms Clarke indicated that she would be out of the country in November and December 2012. Mr Smithers deposed, and I accept, that he told Ms Clarke that she would need to contact the Court if she wished to seek alternative arrangements.
Mr Smithers deposed that Ms Clarke then asked him for the Court details which he duly gave her. There has been no communication received by or on behalf of the respondent to the Court seeking an adjournment or for any other reason. Further, despite being aware of this proceeding, the respondent has not filed any response or other documents in the matter. In the circumstances, I am satisfied that it is appropriate that the matter proceed ex parte this morning.
In support of her claim, the applicant read an affidavit sworn by her on 22 October 2012. The applicant claimed to have been employed by the respondent between 14 May 2011 and 14 July 2011 in an administrative capacity. The applicant claimed her duties involved managing the day to day running of the applicant's store, overseeing staff, managing the reception area, supporting the Director of the business with the export and freight of stock, public relations, marketing and tours of the business, and assisting the Director with ad hoc duties and personal tasks.
The applicant signed a contract of employment with the respondent on 19 May 2011 which stated that her commencement date would be 17 May 2011. The contract provided for an initial probation period of four months and the duration of the applicant's employment was within that period.
I accept the applicant’s evidence that she was employed to work 38 hours a week at a rate of $24.78 an hour. The applicant claims that during the period of her employment she was not paid for 70.5 hours at that rate. Annexed to the applicant's affidavit is a copy of a pay slip that confirmed her hourly rate as $24.78 a week. The pay slips annexed to the applicant's affidavit conclude on 3 July 2011.
On the evidence before me, I am satisfied that the applicant is entitled to unpaid wages totalling $1,746.99 for the 70.5 hours worked pursuant to her contract of employment.
In addition, in accordance with the applicant’s evidence, I also accept that the applicant is entitled to a further 28 hours for other work done during that employment period on particular identified Mondays, those being 23 May, 30 May, 13 June and 11 July 2011. Those hours, at $24.78 per hour, make a total of $693.84.
In the circumstances, I am satisfied that the applicant is entitled to unpaid wages in a total amount of $2,440.83.
The applicant also seeks annual leave pursuant to s.90 of the Fair Work Act 2009 (Cth). I accept the calculation presented by Ms Bwadi and reflected in the applicant's affidavit as correct. Accordingly, I am satisfied that the applicant is entitled to annual leave in the amount of $675.75 in accordance with the calculation reflected in her affidavit.
The applicant also seeks one week’s pay in lieu of notice in an amount of $941.64 in accordance with her contract of employment. I am satisfied that the applicant is entitled to that notice and that the amount of $941.64, calculated on 38 hours at the hourly rate of $24.78, is the correct calculation.
In the circumstances, I am satisfied that the applicant is entitled to a total payment from the respondent of $4,058.22 and, accordingly, judgment should be entered for the applicant in that sum.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 22 November 2012
0
0
1