Plotzki v Connor Investments Pty Ltd
[2013] FMCA 114
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PLOTZKI v CONNOR INVESTMENTS PTY LTD | [2013] FMCA 114 |
| INDUSTRIAL – Fair Work small claims – applicant entitled to unpaid wages, unpaid annual leave and unpaid annual leave loading. PRACTICE & PROCEDURE – no appearance by the respondent – matter proceeded ex parte. |
| Fair Work Act 2009 (Cth), ss.87, 90 |
| Applicant: | MICHAEL PLOTZKI |
| Respondent: | CONNOR INVESTMENTS PTY LTD ACN 153 126 375 |
| File Number: | SYG 185 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 21 February 2013 |
| Date of Last Submission: | 21 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 21 February 2013 |
REPRESENTATION
| The applicant appeared in person with the assistance of Mr Robertson, solicitor with the office of the Fair Work Ombudsman |
| No appearance by or on behalf of the respondent |
ORDERS
Leave be granted to the applicant to proceed ex parte.
Judgment for the applicant in the sum of $3,518.23 (“the Judgment Sum”).
The Judgment Sum is to be paid within 28 days.
NOTE: The applicant was assisted by Mr Robertson, solicitor with the office of the Fair Work Ombudsman.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 185 of 2012
| MICHAEL PLOTZKI |
Applicant
And
| CONNOR INVESTMENTS PTY LTD ACN 153 126 375 |
Respondent
REASONS FOR JUDGMENT
Ex Tempore
By application and “Form 5 Small claim under the Fair Work Act 2009 (Cth)” (“Form 5”) filed on 1 February 2013, the applicant seeks payments from the respondent for unpaid wages, unpaid annual leave and unpaid annual leave loading.
The applicant was assisted at the hearing by Mr Robertson, solicitor from the office of the Fair Work Ombudsman, who sought leave to proceed with the application ex parte.
In support of the application to proceed ex parte, Mr Robertson read the affidavit of service of Jason Lam, affirmed 13 February 2013. I note that the affidavit of service states that the application and the Form 5 were served on the respondent at the respondent’s registered office and principal place of business on 5 February 2013.
In light of the evidence before me, I am satisfied that the respondent has been duly served according to law and 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.
In the circumstances, I am satisfied that it is appropriate that leave be granted to the applicant to proceed ex parte on his application today.
In support of the application, Mr Robertson tendered a copy of the Road Transport and Distribution Award 2010 which was marked Exhibit 1A, a copy of the transitional version of the Road Transport and Distribution Award 2010 which was marked Exhibit 2A, and a copy of the pay scale summary of the Transport Industry (State) Award which was marked Exhibit 3A.
Mr Robertson also read the affidavit of the applicant, sworn 19 February 2013, in which the applicant claimed to have been employed on a full time basis by the respondent as a courier driver from 16 September 2011 to 30 January 2012.
Based on the evidence before me, I am satisfied that the applicant’s employment with the respondent is covered by the Road Transport and Distribution Award 2010 and that the applicant was employed during that period for not less than 38 hours per week.
I am satisfied that the relevant hourly rate to which the applicant was entitled, having regard to Exhibits 1A, 2A and 3A, together with the applicant’s affidavit, sworn 19 February 2013, to an hourly rate $17.56.
I accept the applicant’s evidence that he was not paid for the hours worked in the period from 16 December 2011 to 30 January 2012. I accept the applicant’s evidence that, despite receiving payslips over that period, the applicant did not receive the amounts referred to in the document. Those payslips were annexed to the applicant’s affidavit and marked “A”.
Further, I accept the applicant’s evidence that the respondent’s bank account record of payment’s to the applicant during that period, annexed to the applicant’s affidavit and marked “B”, relate to fuel reimbursements to the applicant and earlier pay still owed to the applicant.
Accordingly, I am satisfied that the total unpaid wages during the period claimed is $3,550.46, made up of unpaid hours of 202.19 x the applicant’s hourly rate entitlement of $17.56.
Further, I am satisfied that pursuant to s.90 and s.87 of the Fair Work Act 2009 (Cth), that annual leave of four weeks accrues to the applicant per year. Based on the applicant’s full time employment at 38 hours per week, the applicant’s annual leave entitlement is 1,976 hours per year. The applicant claims unpaid annual leave of 56.71 hours during his period of employment. Based on the applicant’s hourly rate, the applicant claims an entitlement of annual leave in the amount of $995.79.
Accordingly, I am satisfied that the applicant is entitled to unpaid annual leave in the amount of $995.79.
Further, in accordance with cl.29.2 of the Road Transport and Distribution Award 2010, the applicant is entitled to a loading on his annual leave entitlement of 17.5%. Based on the hours of annual leave accrued by the applicant, the amount of annual leave loading to which the applicant remains entitled is $174.26.
I accept the applicant’s evidence that he failed to give notice to the respondent of his resignation. The respondent was entitled to one week’s notice. I am satisfied that the amount of $667.28 (being 38 hours x $17.56 per hour) should be deducted from the total of the applicant’s claim from the respondent.
I further accept that the amount received by the applicant on 25 September 2012 for $535 should also be deducted from the total of the applicant’s claim from the respondent.
In the circumstances, judgment should be entered for the applicant in the total amount of $3,518.23.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 21 February 2013
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