Pincott v PC Disposals Pty Ltd - [2013] QCAT 287

CITATION:

Pincott v PC Disposals Pty Ltd [2013] QCAT 287

PARTIES:	Treacey Leah Pincott (Applicant)
v
PC Disposals Pty Ltd (Respondents)

APPLICATION NUMBER:

MCDO1786-12

MATTER TYPE:

Other minor civil dispute matter

HEARING DATE:

6 May 2013

HEARD AT:

Brisbane

DECISION OF:

John Bertelsen, Adjudicator

DELIVERED ON:

21 May 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application filed 14 June 2012 is transferred to the Magistrates Court of Queensland at Brisbane.

2. Proceedings in the said Court shall be taken to have commenced on 14 June 2012.

3. The applicant Treacey Leah Pincott shall be taken to have complied with all requirements of the Fair Work Act 2009 (Cth) for the commencement and hearing in the said Court of a small claims procedure, within the meaning of section 548 of the said Act.

4. Liberty to each party to apply for further directions upon 7 days notice in writing to the other party and to the Tribunal.

CATCHWORDS:

EMPLOYMENT – continuity of employment – applicability of relevant award – jurisdiction of Tribunal – transfer of proceeding

Fair Work Act 2009 (Cth), s 548

JF Hodge Pty Ltd v Brown [2013] QCATA 36

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Treacey Leah Pincott appeared in person.

RESPONDENT:

PC Disposals Pty Ltd represented by Mr Peter Petz, Director

REASONS FOR DECISION

Application

By application filed 14 June 2012 the applicant, Ms Pincott, seeks holiday entitlements and termination entitlements pursuant to her continuity of employment from 24 September 2007 through 14 October 2011 with firstly Brisbane Computer Recyclers, then Brisbane Computer Recyclers Pty Ltd and finally PC Disposals Pty Ltd, in the sum of $8,745.00.

Background and evidence

Ms Pincott commenced employment as bookkeeper with the business Brisbane Computer Recyclers on 24 September 2007. In 2008 that business was then conducted as Brisbane Computer Recyclers Pty Ltd which company was placed in voluntary liquidation on 30 June 2011. Ms Pincott continued employment with PC Disposals Pty Ltd, the successor to Brisbane Computer Recyclers Pty Ltd. Ms Pincott’s employment was terminated on 14 October 2011. Her wages were paid to that date. What was not paid at that time according to Ms Pincott was 22 days holiday pay at $25.00 per hour plus 17.5% loading, $5,175.00 (less $430.00 paid 25 October 2011), a net figure of $4,745.00 and four weeks termination pay being three weeks applicable to her total period of employment and one week on account of being over 45 years of age, a total of $4,000.00.
Subsequent to termination Ms Pincott made a claim under the General Employee Entitlements and Redundancy Scheme (GEERS) managed by the Federal Department of Education, Employment and Workplace Relations (the Department).
Based on information available to the Department it was determined that Ms Pincott was ineligible for assistance. Relevantly GEERS stated in correspondence to Ms Pincott:
GEERS assistance is available where there is no other source of funds to pay your outstanding employee entitlements. If your employers interests or assets have been sold or transferred to another business…

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 Pincott v PC Disposals Pty Ltd

Details

AGLC: Pincott v PC Disposals Pty Ltd [2013] QCAT 287
Case: [2013] QCAT 287
Decision Date

CaseChat Overview and Summary

Treacey Leah Pincott commenced proceedings against PC Disposals Pty Ltd seeking holiday and termination entitlements. The dispute centred on Ms Pincott's claim that she was owed $8,745.00 for unpaid holiday pay and termination entitlements following her employment with Brisbane Computer Recyclers, Brisbane Computer Recyclers Pty Ltd, and finally PC Disposals Pty Ltd. The matter was brought before the Queensland Civil and Administrative Tribunal (QCAT) to determine its jurisdiction and to transfer the matter to an appropriate court.

The legal issues before the Tribunal were whether QCAT had the jurisdiction to hear the matter, and if not, to which court the matter should be transferred. The central issue was whether Ms Pincott's employment was covered by a modern award under the Fair Work Act 2009, and if so, whether the Tribunal or a court had the jurisdiction to hear her claim.

The Tribunal found that Ms Pincott's employment was indeed governed by a modern award, as she was employed in an office administration role which falls under modern awards. The Tribunal referenced the decision in JF Hodge Pty Ltd v Brown [2013] QCATA 36, which held that claims involving modern awards must be brought before a State Magistrates Court or a Federal Magistrates Court. As QCAT is not a court for the determination of such claims, the Tribunal transferred the matter to the Magistrates Court of Queensland at Brisbane. The Tribunal also noted that Ms Pincott had complied with the requirements of the Fair Work Act 2009 for initiating a small claims procedure in the Magistrates Court.

In conclusion, the Tribunal transferred Ms Pincott's application to the Magistrates Court of Queensland, deeming the proceedings to have commenced on the original filing date of 14 June 2012, and granting Ms Pincott compliance with the Fair Work Act 2009 requirements for small claims. The Tribunal allowed each party the liberty to apply for further directions upon notice to the other party and the Tribunal.

Orders