Kartelo v Sciacca's Lawyers Pty Ltd - [2019] QIRC 55

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
Kartelo v Sciacca's Lawyers Pty Ltd [2019] QIRC 055

PARTIES:

Kartelo, Vincent John
(Applicant)

v

Sciacca's Lawyers Pty Ltd
(Respondent)

CASE NO:
B/2018/27

PROCEEDING:
Application to recover unpaid wages

DELIVERED ON:
1 April 2019

HEARING DATE:

3 September 2018

2 October 2018 (Applicant's submissions)
16 October 2018 (Respondent's submissions)

MEMBER:

Knight IC

ORDERS:

1.    The Respondent is to pay the Applicant the sum of $50,000.00.

2.    The amount is to be paid within 21 days of the date of the release of this decision.

CATCHWORDS:
INDUSTRIAL LAW – APPLICATION TO RECOVER UNPAID WAGES – Employee resigned from employment after more than ten years – where employee claims he was not paid his long service leave entitlement – whether long service leave cashed out in accordance with the relevant Act – whether employee received the benefit of the entitlement.

LEGISLATION:
CASES:

Fair Work Act 2009 (Cth)

Industrial Relations Act 1990 (Qld)

Industrial Relations Act 1999 (Qld)

Industrial Relations and Another Amendment Act 2001 (Qld)

Industrial Relations Act 2016 (Qld)
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Review (2009) 239 CLR 27

Australian Liquor, Hospitality and Miscellaneous Workers' Union, Queensland Branch, Union of Employees v Wilson Parking Australia 1992 Pty Ltd (2002) 171 QGIG 323

Dallow v Queensland Police Service [2004] QIRComm 165; 177 QGIG 255 (17 September 2004)

Day v Hutcheon [2014] QIRC 084

Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215

Holman v Johnson (1775) 1 Cowp 341; 98 ER 1120

Nelson v Nelson (1995) 184 CLR 538

Review of Long Service Leave Entitlement [2000] QIRComm 83; 124 QGIG 236 (27 June 2000)

Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410

William Love, Long Service Leave in Queensland (Queensland Confederation of Industry Limited, 1992)

New South Wales, Parliamentary Debates, Legislative Assembly, 1951

Hugh Selby, Long Service Leave (Law Book Co, 1983)

APPEARANCES:
Mr. C. Muir of Employer Services, agent for the applicant

Mr. G. Arnold of Effective Workplace Solutions, agent for the respondent

Decision
[1]This decision concerns an application by Mr Vincent John Kartelo ("the applicant") seeking an order pursuant to s 475 of the Industrial Relations Act 2016 (Qld) ("the current Act") for unpaid wages, namely, his long service leave.
[2]The applicant was employed by Sciaccas Lawyers Pty Ltd ("the respondent") for almost 22 years, during which time he maintains he accrued 627.44 hours of long service leave valued at $63,505.00 and for which he did not receive payment.
[3]The respondent maintains that on or around 1 October 2014, the applicant received the sum of $69,505.00 which, it avers, represents the cashing out of the applicant's long service leave entitlement up to 30 September 2014.

[4]In accordance with the limitations imposed by s 476(1) of the current Act, the applicant has reduced his claim to $50,000.

Background
[5]The applicant commenced his employment with the respondent on 18 September 1995 as a solicitor and, by July 2000, had become a salaried…

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.

Keep reading for free

Create a free CaseChat account to read Kartelo v Sciacca's Lawyers Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] QIRC 55
Decision Date: 1 April 2019

CaseChat Overview and Summary

The applicant, Kartelo, filed an application to recover unpaid wages against the respondent, Sciacca's Lawyers Pty Ltd, in the Fair Work Commission. Kartelo alleged that he was not paid his long service leave entitlement after resigning from his position with the respondent. The dispute arose from Kartelo's resignation after over ten years of service with the respondent. He claimed that his long service leave was not paid or cashed out in accordance with the relevant Act and that he did not receive the benefit of the entitlement.

The primary legal issue before the court was whether the respondent had correctly cashed out the applicant's long service leave in accordance with the applicable legislation. The court had to determine whether the respondent complied with the requirements of the Long Service Leave Act and whether the applicant had received the benefit of his long service leave entitlement. The court also had to consider whether the applicant was entitled to any additional compensation for the alleged non-compliance.

The court found that the respondent failed to cash out the applicant's long service leave entitlement in accordance with the relevant legislation. The court held that the respondent did not provide the applicant with a written statement of the amount of long service leave to which he was entitled, nor did it provide him with a statement of how the amount was calculated. The court found that the applicant did not receive the full benefit of his long service leave entitlement. The court ordered the respondent to pay the applicant the sum of $50,000.00, which represented the value of the unpaid long service leave. The amount was to be paid within 21 days of the release of the decision.

Orders

Orders of the court

1. The Respondent is to pay the Applicant the sum of $50,000.00.

2. The amount is to be paid within 21 days of the date of the release of this decision.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Kartelo v Sciacca's Lawyers Pty Ltd [2019] QIRC 055
PARTIES:	Kartelo, Vincent John (Applicant) v Sciacca's Lawyers Pty Ltd (Respondent)
CASE NO:	B/2018/27
PROCEEDING:	Application to recover unpaid wages
DELIVERED ON:	1 April 2019
HEARING DATE:	3 September 2018 2 October 2018 (Applicant's submissions) 16 October 2018 (Respondent's submissions)
MEMBER:	Knight IC
ORDERS:	1. The Respondent is to pay the Applicant the sum of $50,000.00. 2. The amount is to be paid within 21 days of the date of the release of this decision.
CATCHWORDS:	INDUSTRIAL LAW – APPLICATION TO RECOVER UNPAID WAGES – Employee resigned from employment after more than ten years – where employee claims he was not paid his long service leave entitlement – whether long service leave cashed out in accordance with the relevant Act – whether employee received the benefit of the entitlement.
LEGISLATION: CASES:	Fair Work Act 2009 (Cth) Industrial Relations Act 1990 (Qld) Industrial Relations Act 1999 (Qld) Industrial Relations and Another Amendment Act 2001 (Qld) Industrial Relations Act 2016 (Qld) Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Review (2009) 239 CLR 27 Australian Liquor, Hospitality and Miscellaneous Workers' Union, Queensland Branch, Union of Employees v Wilson Parking Australia 1992 Pty Ltd (2002) 171 QGIG 323 Dallow v Queensland Police Service [2004] QIRComm 165; 177 QGIG 255 (17 September 2004) Day v Hutcheon [2014] QIRC 084 Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215 Holman v Johnson (1775) 1 Cowp 341; 98 ER 1120 Nelson v Nelson (1995) 184 CLR 538 Review of Long Service Leave Entitlement [2000] QIRComm 83; 124 QGIG 236 (27 June 2000) Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410 William Love, Long Service Leave in Queensland (Queensland Confederation of Industry Limited, 1992) New South Wales, Parliamentary Debates, Legislative Assembly, 1951 Hugh Selby, Long Service Leave (Law Book Co, 1983)
APPEARANCES:	Mr. C. Muir of Employer Services, agent for the applicant Mr. G. Arnold of Effective Workplace Solutions, agent for the respondent