Knock v Haven Health Pty Ltd

[2013] FCCA 964

FEDERAL CIRCUIT COURT OF AUSTRALIA

KNOCK v HAVEN HEALTH PTY LTD [2013] FCCA 964

Catchwords:
INDUSTRIAL LAW – Fair Work small claims – no appearance by the respondent – Ex Parte hearing – whether applicant entitled to annual leave, annual leave loading and sick pay – whether applicant failed to give the respondent three weeks’ notice of termination of contract of employment.

Legislation:
Fair Work Act 2009 (Cth), ss.90, 90.
Federal Circuit Court Rules 2001 (Cth) r.6.08.

Applicant: JULIE KNOCK

Respondent: HAVEN HEALTH PTY LTD (ACN 111 134 322)

File Number: SYG 1332 of 2013

Judgment of: Judge Emmett

Hearing date: 29 July 2013

Date of Last Submission: 29 July 2013

Delivered at: Sydney

Delivered on: 29 July 2013

REPRESENTATION

Applicant appeared in person with the assistance of Ms Lucy Madden from the Fair Work Ombudsman.

No appearance by or on behalf of the respondent

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1332 of 2013

JULIE KNOCK

Applicant

And

HAVEN HEALTH PTY LTD (ACN 111 134 322) 

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By application filed on 14 June 2013 and “Form 5 Small Claim under the Fair Work Act 2009 (Cth)” filed on 14 June 2013, the applicant seeks payments from the respondent for unpaid annual leave, unpaid leave loading and unpaid personal leave.

2. The applicant claims to have been employed by the respondent as a retail manager between 11 February 2008 and 16 February 2012.

3. The applicant seeks leave to proceed with her application ex parte.

4. In support of that application, the applicant read the affidavit of service of Cheryl Cooper, sworn 11 July 2013. I note that the affidavit of service states that the application and the Form 5, filed on 14 June 2013, were served on the respondent at the respondent’s registered office. A copy of a company search identifying the registered office of the respondent was tendered and marked exhibit 1A.

5. In the circumstances, I am satisfied that service was effected upon the respondent in accordance with r.6.08(2)(a) of the Federal Circuit Court Rules 2001(Cth).

6. The respondent has had a reasonable time in which to participate in the proceeding before this Court. 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.  There has been no document filed by the respondent in response to the application filed, and neither has the applicant received any communication from the respondent.

7. In the circumstances, I am satisfied that it is appropriate that leave be granted to the applicant to proceed ex parte on her application today. 

8. The applicant read an affidavit affirmed by her on 19 July 2013 and gave oral evidence to the effect that she never worked less than 38 hours during the period of her employment.  I accept that the applicant was employed by the respondent between 11 February 2008 and 16 February 2012.

9. Annexed to the applicant’s affidavit and marked “A” is a letter of offer dated 11 February 2008 and signed by the applicant and a director of the respondent. I am satisfied that the letter of offer determines the terms and conditions on which the applicant was employed.

10. The applicant also tendered the General Retail Industry Award 2010, which was marked Exhibit 2A. I am satisfied that the duties engaged in by the applicant were duties which were covered by that Award and that in accordance with that Award, the applicant as employed as retail manager. I am also satisfied that the terms and conditions of the Award were less than the terms and conditions provided in the applicant’s contract of employment with the respondent in terms of her hourly rate of pay..

11. I accept the applicant’s evidence that as at the date of termination the applicant’s hourly rate of pay was $24.29 for a minimum of 38 hours per week. I am also satisfied that the applicant was entitled to four weeks annual leave on a pro-rata basis each year, together with annual leave loading of 17.5% on leave taken.

12. Annexed to the applicant’s application and marked “F” is a document that I accept was produced by the respondent stating that as at the date of termination, the applicant had accrued 158.99 hours of annual leave and 171.121 hours of sick leave.

13. Based on the evidence before me, I am satisfied that the applicant is entitled to 158.99 hours of annual leave at her hourly rate of $24.29, making a total of $3,861.87.

14. Further, I am satisfied that pursuant to s.90(2) of the Fair Work Act 2009 (Cth), the applicant is entitled to annual leave loading of 17.5% on the 158.99 hours of annual leave owed, making a total of $675.83. However, I accept that the applicant received on 29 February 2012 $210 in respect of annual leave loading.

15. Accordingly, I am satisfied that the applicant is entitled to a total of $4,327.70 for annual leave on termination and annual leave loading.

16. I also accept on the evidence before me that the applicant was required to give three weeks’ notice of termination of her contract of employment to the respondent. On the applicant’s evidence, she gave only one week’s notice. In fact, the applicant took sick leave to which she was entitled during that week. Pursuant to s.99 of the Fair Work Act 2009(Cth), the applicant was entitled to sick pay at her hourly rate of pay for 38 hours, being a total of $923.08.

17. In the circumstances, I am also satisfied that the respondent is entitled to two weeks’ notice in the total amount of $1,846.04.

18. Accordingly, judgment should be entered for the applicant in a total amount of $3,404.74, such sum to be paid within 28 days.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Emmett.

Associate: 

Date: 29 July 2013