Shrestha v Martland International Pty Ltd
[2013] FMCA 111
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHRESTHA v MARTLAND INTERNATIONAL PTY LTD | [2013] FMCA 111 |
| INDUSTRIAL LAW – Fair Work small claims – whether applicant is a transferring employee within the meaning of s.311 of the Fair Work Act– whether there was a transfer of business in accordance with s.311(1) of the Fair Work Act – whether the applicant’s period of service with another company counted as service with the respondent in accordance with s.22(5) of the Fair Work Act – applicant entitled to unpaid wages and unpaid annual leave. PRACTICE & PROCEDURE – No appearance by the respondent – matter proceeded ex parte. |
| Fair Work Act 2009 (Cth), ss.22, 87, 90, 311, 542 |
| Applicant: | SHRADA SHRESTHA |
| Respondent: | MARTLAND INTERNATIONAL PTY LTD (ACN 145 535 324) |
| File Number: | SYG 2826 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 21 March 2013 |
| Date of Last Submission: | 21 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 21 March 2013 |
REPRESENTATION
| The applicant appeared in person and was assisted by Ms A Beecroft, solicitor with the office of the Fair Work Ombudsman |
| No appearance by or on behalf of the respondent |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2826 of 2012
| SHRADHA SHRESTHA |
Applicant
And
| MARTAND INTERNATIONAL PTY LIMITED (ACN 145 535 324) |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
By application and “Form 5 Small claim under the Fair Work Act 2009 (Cth)” filed on 3 December 2012, the applicant seeks payments from the respondent for unpaid wages and unpaid annual leave.
The applicant was assisted at the hearing by Ms Beecroft, 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, Ms Beecroft read the affidavit of service of Jelena Pisaturo, affirmed 29 January 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 address on 13 December 2012, and the sole director of the respondent’s residential address on 21 December 2012.
On 31 January 2013, the applicant was directed to file and serve evidence in support, together with written submissions, by 14 February 2013; and to serve on the respondent a copy of the orders made also by 14 February 2013.
Ms Beecroft tendered two letters from the Fair Work Ombudsman to the respondent, dated 5 February 2013, as evidence of service of the orders made by the Court on 31 January 2013; and two letters, dated 14 February 2013, as evidence of service of the applicant’s evidence and written submissions upon the respondent. Those letters were addressed to the respondent at both the respondent’s principal place of business and registered office.
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 her application today.
In support of the application, Ms Beecroft read the affidavit of the applicant, affirmed 14 February 2013, in which the applicant claimed to have been employed as a sales assistant by a company known as Integral Imports and Exports Pty Limited, trading under the name Your Place (“Integral”), from 7 January 2010 to 24 July 2011. Following a transfer of business, the applicant claimed to have been employed by Kudos Living from 27 July 2011 to 30 April 2012.
I note that there are some inconsistencies in the applicant’s affidavit, affirmed 23 January 2013 and the applicant’s affidavit, affirmed 14 February 2013. Ms Beecroft informed the Court that if the applicant was to give evidence to explain those inconsistencies, the substance of that evidence would be to the effect that they arose due to the unintentional oversight on the part of the applicant. I accept that these inconsistencies were due to the applicant’s unintentional oversight and do not affect her credibility.
An extract from the Australian Business Register was tendered by the applicant and marked Exhibit 1A, and showed that the respondent owned the business name Kudos Living and traded under that name. Based on that evidence, I accept that the respondent traded as Kudos Living.
The applicant also read her earlier affidavit, affirmed 23 January 2013, in which she stated that in July 2011 the sole director of Integral told her that Integral was having some liquidation issues, that the name of the business would be changed to Kudos Living, and that the business would be sold to a man whom she identified as the sole director of the respondent. Bank statements annexed to the applicant’s affidavit show that her wages were last paid by Integral on 27 July 2011 and that the respondent paid her wages thereafter. Based on that evidence, I accept that the applicant’s employment with Integral was terminated on or about 27 July 2011.
The applicant also stated that she continued to perform the same duties at the same location for the respondent as she had during her employment with Integral, and her bank statements indicate that she continued to have the same weekly wage deposited into her bank account.
I accept that within three months of her termination by Integral, the applicant became employed by the respondent and that the work she performed for the respondent was the same, or substantially the same, as the work performed for Integral.
In the circumstances, I am satisfied that the applicant’s employment was terminated by Integral and that within three months of the termination, the applicant became employed by the respondent.
I also accept that the respondent had the beneficial use of some or all of the assets that Integral owned and that those assets are related to or used in connection with the transferring work. In making that finding, I have regard to the evidence before me that the same retail outlets owned by Integral were being used by the respondent, including the equipment, furniture and stock; the respondent used the same head office as Integral; the applicant continued to collate store figures for the respondent in the same way she did for Integral; and, the respondent used the same direct credit number as Integral in order to pay the applicant’s wages electronically into her bank account.
Accordingly, I am satisfied that the applicant is a transferring employee within the meaning of s.311 of the FWA and that there was a transfer of business in accordance with s.311(1) of the FWA.
Consequently, pursuant to s.22(5) of the FWA, the applicant’s period of service with Integral counts as service with the respondent.
Unpaid wages
The applicant claims unpaid wages for three weeks and three days work performed between 5 April 2012 and 30 April 2012, and for which she was not paid.
Based on bank statements annexed to the applicant’s affidavit, affirmed 23 January 2013, I accept that from 27 July 2011 to 29 September 2011 the applicant continued to receive the same weekly wage from the respondent as she had received when working for Integral ($724 net), and that she continued to work the same number of hours each week for the respondent as she had for Integral (38 hours).
Based on the evidence before me, I accept that from 29 September 2011 until her employment with the respondent ceased on 30 April 2012, that the applicant worked on a full time basis for 38 hours a week and that she was paid an agreed rate of $1,000 a week, or $814 net, equating to $26.32 an hour. I accept that this rate of pay was a contractually agreed rate of pay for the purposes of s.542(1) of the Fair Work Act 2009 (Cth).
Based on the evidence before me, I am satisfied that the applicant is owed a total of three weeks and three days in unpaid wages by the respondent totalling $3,600.
Unpaid annual leave
The applicant also claims $3,600 for 18 days annual leave taken, but for which she remains unpaid.
I accept the applicant’s evidence that she went on approved annual leave for four weeks and three days from 5 March 2012 to 5 April 2012, equating to 23 days in annual leave.
I also accept that the applicant has only received one weeks wages from the respondent for this period.
Pursuant to s.87 of the Fair Work Act 2009 (Cth), the applicant was entitled to four weeks paid annual leave per year and her entitlement to that annual leave accrued progressively during a year of service.
Accordingly, I am satisfied that the applicant remains unpaid for annual leave of three weeks and three days, and that the respondent is obliged to pay her for that time. I am satisfied that at the applicant’s base rate of pay, the applicant was entitled to $3,600 for annual leave taken.
Accrued and untaken annual leave owing on termination
The applicant also claims $698.74 in accrued annual leave entitlements but which remained untaken at the time of her resignation.
Based on the evidence before me, I accept that during her time with Integral and the respondent the applicant accrued 3.49 days annual leave for which she remains unpaid.
At the applicant’s base rate of pay of $26.32 per hour, that makes a total of $698.74 in unpaid annual leave entitlements owing to the applicant upon her resignation.
Conclusion
The total amount claimed by the applicant in the Form 5 filed by her on 3 December 2012 is $7, 842.73. That sum is less than the sum of the amounts that I am satisfied remain unpaid to the applicant. Those underpayments total $7,898.74. Because there has been no document served upon the respondent seeking the greater amount of $7,898.74, the applicant seeks judgement only in the amount of $7,842.73.
In the circumstances, judgment should be entered for the applicant in the total sum of $7,842.73
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate:
Date: 21 March 2013
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