Ms Christine Dixon v Orsino Images Pty Ltd T/A Orsino Images, Wedding Movies, Godwin Pictures
[2011] FWA 7446
•31 OCTOBER 2011
[2011] FWA 7446 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Christine Dixon
v
Orsino Images Pty Ltd T/A Orsino Images, Wedding Movies, Godwin Pictures
(U2011/989)
COMMISSIONER ROE | MELBOURNE, 31 OCTOBER 2011 |
Termination of employment - genuine redundancy or dismissal or initiative of employer.
[1] On Monday 7 October I issued a decision in this matter [2011] FWA 6919 PR515420. I also issued an Order on 10 October 2011 (PR515546). That Order provided that the respondent pay the Applicant $5498.13 less appropriate taxation within 14 days. The Order provided the Respondent liberty to apply to vary the time period for payment.
[2] On 18 October 2011 Mr Whimpey for the Respondent applied to vary the time period for payment. On 17 October 2011 the Applicant wrote identifying two errors she said appeared in the decision. I corrected one obvious error which was that Dr Raymond Dixon is not her partner but is her father. The second alleged error related to the amount of compensation as set out in Paragraph 58 of the decision and reflected in the Order.
[3] The application to vary the Order was heard on 28 October 2011.
[4] There was evidence before the Tribunal which was not challenged that the Applicant earnt gross income of $25,000 per year from her ordinary 30 hours per week excluding superannuation. (Annexure A to Exhibit O2 and Exhibit D1 Attachment B and C).
[5] There was also a submission of the Applicant (PN385) that the correct rate under the relevant Modern Award should be $622.20 per week excluding superannuation. There was also evidence from the Applicant that her earnings were $18,801.26 over the past 41 weeks or $458.56 per week excluding superannuation. Following this evidence the following exchange with the Applicant occurred.
“THE COMMISSIONER :Okay. $458.57 per week. And what you’re saying is that compensation should be paid on that basis if compensation was to be paid.
MS DIXON: Yes”(PN420-421)
[6] On this basis the following was included at Paragraph 58 of the decision.
“The Applicant gave uncontested evidence that her gross income excluding superannuation from the Respondent (excluding any amounts invoiced for production and editing of wedding videos outside of ordinary hours) was $18,801.26 over the past 41 weeks. The weekly income is therefore $458.56 gross plus $41.27 superannuation. The Applicant should therefore be paid compensation of $5,498.13 less taxation as required by law. The amount should be paid within fourteen days of this decision. An order to this effect will be published separately.”
[7] My decision clearly rejected the inclusion of “any amounts invoiced for production and editing of wedding videos outside of ordinary hours” and any amounts due to alleged incorrect classification.
[8] There was considerable uncontested evidence that the Applicant did earn additional amounts from the Respondent for meetings and production and editing of wedding videos outside of ordinary hours. Earlier the Applicant had submitted that this non-salary income amounted to $18,801.26 over the past 41 weeks or $458.56 per week. (PN385).
[9] The Respondent initially proposed the payments be spread over a 12 month period. The Applicant was prepared initially to agree to payments being spread over an additional three weeks than provided for in the Order.
[10] At the hearing of 28 October 2011 I adjourned the matter in conference. The parties agreed in conference that the compensation amount was an obvious error which should be corrected. The parties also agreed that the Respondent should be allowed three months to pay. I then resumed the hearing on transcript and advised the parties of my decision in this matter.
[11] I am satisfied that the compensation amount referred to in the Order (PR515546) and in Paragraph 58 of the Decision [2011] FWA 6919 PR515420 had been based on the non-salary income rather than the salary income and that this was an obvious error which should be corrected.
[12] I will therefore correct the obvious error and replace paragraph 58 with the following:
“The Applicant gave uncontested evidence that her gross income excluding superannuation from her ordinary 30 hours per week is $25,000 per year or $480.77 per week plus 9% superannuation. The Applicant also gave uncontested evidence that her gross income excluding superannuation from the Respondent for amounts invoiced for work outside of her ordinary 30 hours per week was $18,801.26 over the past 41 weeks. I have determined that this amount should not be included in the calculation of compensation. Therefore the Applicant should be paid compensation of $5764.43 less taxation required by law. The amount should be paid within 14 days of this decision. An order to this effect will be published separately.”
[13] The compensation amount Ordered will therefore be corrected to $5764.43 in place of $5,498.13.
[14] Having heard the submissions and considered the evidence concerning the financial difficulties of the Respondent I have also determined to vary the Order to increase the time available to the Respondent to make the payment.
[15] Consistent with the agreement of the parties I will Order that the amount should be paid in instalments as follows:
● $1921.15 by 7 November 2011
● $1921.15 by 7 December 2011
● $1921.13 by 7 January 2012
[16] A varied Order shall be issued accordingly.
COMMISSIONER
Appearances:
Ms Christine Dixon appeared on behalf of herself
Mr Ben Whimpey, Director, appeard on behalf of the Respondent
Hearing details:
2011
Melbourne
October 28
Printed by authority of the Commonwealth Government Printer
<Price code A, PR516218>
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