Richardson v SHARON-LEE Holdings Pty Ltd (ACN 112 486 030)
[2012] FMCA 1123
•1 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RICHARDSON V SHARON-LEE HOLDINGS PTY LTD (ACN 112 486 030) | [2012] FMCA 1123 |
| INDUSTRIAL LAW – Fair Work small claims – no appearance by the respondent – leave granted to the applicant to proceed ex parte – applicant entitled to unpaid wages, unpaid overtime, unpaid penalty rates, unpaid annual leave and unpaid annual leave loading. |
| Fair Work Act 2009 (Cth), ss.90, 117 |
| Applicant: | KARINA ALYCE RICHARDSON |
| Respondent: | SHARON-LEE HOLDINGS PTY LTD (ACN 112 486 030) |
| File Number: | SYG 1528 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 1 November 2012 |
| Date of Last Submission: | 1 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 1 November 2012 |
REPRESENTATION
| The applicant appeared in person with the assistance of Ms M Bwadi of the office of the Fair Work Ombudsman |
| There was no appearance by or on behalf of the respondent |
ORDERS
Judgment for the applicant in the sum of $1,417.93 (“the Judgment Sum”)
The Judgment Sum is to be paid within 28 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1528 of 2012
| KARINA ALYCE RICHARDSON |
Applicant
And
| SHARON-LEE HOLDINGS PTY LTD (ACN 112 486 030) |
Respondent
REASONS FOR JUDGMENT
Ex Tempore
By way of application filed on 13 July 2012 and “Form 5 Small Claim under the Fair Work Act 2009 (Cth)” (“Form 5”) filed on the same date, the applicant seeks various amounts arising from her employment with the respondent between 15 June 2011 and 20 July 2011.
The applicant seeks leave to proceed with her application today ex parte. In support of that application, the applicant read two affidavits of service by Marcel Smithers, one sworn 20 July 2012, the other sworn 31 October 2012. Those affidavits satisfy the service requirements and annex a copy of the registered business office of the respondent.
In light of the evidence before me, I am satisfied that the respondent was duly served with a copy of the Application and Form 5 on 20 July 2012 in accordance with the rules of the Court. The respondent has, for whatever reason, not filed any documents in this proceeding.
Accordingly, I am satisfied that it is appropriate that the matter proceed ex parte this morning.
The applicant read an affidavit sworn by her on 19 October 2012. I accept the applicant’s evidence that she is a qualified beautician and was employed by the respondent to perform beauty treatments including eyebrow shaping and lash tinting. I accept that the applicant’s employment was governed by the Hair and Beauty Industry Award 2010 (“the Award”).
Under the Award, the applicant was employed as a level 6 beauty therapist and her annual salary was $38,165.09, being an hourly rate of $18.34, as reflected in the payslips annexed to her affidavit.
Trial period
The applicant undertook a trial period between 15 June 2011 and 18 June 2011 for which she was not paid. The applicant deposed that during this period she worked a total of 34.5 hours. I accept that, pursuant to the Award, the applicant was entitled to be paid during this trial period. The relevant hourly rate at which she was to be paid for ordinary hours worked is $17.01 an hour, as reflected in the pay scale summary of the pre-modern award, tendered by the applicant and marked Exhibit 2A. On the evidence before me, I accept that the applicant was entitled to 28 hours at $17.01 an hour during the trial period, making a total $476.28. Thereafter, the respondent agreed to pay the applicant an hourly rate of $18.34.
Pursuant to clause 31(2) of the Award, the applicant was also entitled to overtime on Saturdays at a rate of $21.53 during the trial period. I accept the applicant’s evidence that she worked for six and a half hours at that rate, making a total amount of $139.95.
Accordingly, the applicant was entitled to be paid a total of $616.23 for the trial period.
Unpaid wages
The applicant claims that she worked 164.5 hours for the respondent for between 20 June 2011 and 20 July 2011 during which she was entitled to be paid a total of $3,016.93. That calculation was made up of 164.5 hours at her hourly rate of $18.34. The applicant stated in her affidavit that as at 13 July 2012, she had received only $2,417.67 from the respondent as wages for hours worked.
On the evidence before me, I am satisfied that $599.26 remains outstanding for the period worked by the applicant between 20 June 2011 and 20 July 2011.
Further, I accept that the applicant worked various hours on the Saturdays of 25 June 2011, 2 July 2011 and 16 July 2011 during which time she was entitled to receive an hourly rate of $21.53 until 1 July 2011. Thereafter she was entitled to an hourly rate of $23.26. In the circumstances, on the evidence before me I am satisfied that the total overtime for Saturdays for which the applicant remains unpaid, is $102.08.
The applicant also claims 15 hours overtime in respect of ordinary hours worked during the period 20 June 2011 to 20 July 2011. On the evidence before me, I am satisfied that the applicant is entitled to be paid for 15 hours overtime at the overtime rate. The overtime is calculated in the Form 5 and I accept that calculation as accurate. During that period there were various adjustments to the overtime rate and I am satisfied the applicant ultimately is entitled to be paid a total of $452.98 for overtime work performed by her for the respondent.
Accordingly, I am satisfied that the applicant is owed by the respondent unpaid wages for the period 20 June 2011 to 20 July 2011, including Saturdays and overtime worked, totalling $1,154.32.
Annual leave
The applicant also claims unpaid annual leave. I accept that pursuant to s.90 of the Fair Work Act 2009 (Cth) (“the Act”), the applicant was entitled to an amount for annual leave and I accept that the calculation in the Form 5 is correct. The total claimed by the applicant for unpaid annual leave is $287.02 and on the evidence before me, I am satisfied that that amount is due and owing.
The applicant also seeks annual leave loading pursuant to clause 33.3 of the Award, at the rate of 17.5 per cent on the annual leave calculated. In the circumstances, I am satisfied that the Award rate is presently $18.14 for the purposes of the calculation and that the annual leave loading for the 15.65 hours calculated by the applicant to be due and owing is a total of $49.68.
Applicant required to give one week’s notice
The applicant stated in her affidavit that she resigned from her employment and did not provide notice to the respondent. In the circumstances, pursuant to clause 14.2 of the Award and s.117 of the Act, the applicant was required to give one weeks notice to the respondent.
I am satisfied that the amount of that notice is a calculation of 38 hours at $18.14 an hour, making at total of $689.32, and that that sum should be deducted from the total amount claimed by the applicant.
Conclusion
In the circumstances, I am satisfied that the total amount owing by the respondent to the applicant for the period of time worked is $1,417.93 and judgment should be entered for the applicant in that amount.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 26 November 2012
0
0
1