Sim v LUO Enterprise Pty Ltd (No 2)

Case [2009] FMCA 1060

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SIM v L.U.O. ENTERPRISE PTY LTD (No.2) [2009] FMCA 1060
INDUSTRIAL LAW – Claim for underpayment under WR Act – proof – dispute over classification under industrial instrument – principle of major and substantial employment – claim for breach of WR Act – claim for breach of contract.
Workplace Relations Act 1996 (Cth) ss.720, 722, 729, 493A, 500, Sch.1A
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
Fair Work Act2009 (Cth)
Federal Magistrates Act 1999 (Cth) s.18
Sim v L.U.O Enterprise Pty Ltd (No.1) [2009] FMCA 286
O’Neill v Medical Benefits Fund of Australia Ltd (2002) 122 FCR 455
Rana v University of South Australia (2004) 136 FCR 344
Ware and O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18
Merchant Services Guild v J Fenwick & Co Pty Ltd (1973) 150 CAR 99
Federated Tobacco Workers Union of Australia v Amalgamated Metal Workers Union & Anor (1998) 29 IR 263
Logan and Otis Elevator Company Pty Ltd (Unreported) IRCA, Moore J, 20 June 1997
Duncans Holdings Ltd v Cross (1997) 76 IR 261
Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd (2002) 121 IR 250
Applicant: LAM SAN SIM
Respondent:

L.U.O. ENTERPRISE PTY LTD

ABN 100 747 626
File Number: MLG 868 of 2008
Judgment of: O'Sullivan FM
Hearing dates: 7, 8 & 9 September 2009
Date of Last Submission: 19 October 2009
Delivered at: Melbourne
Delivered on: 5 November 2009

REPRESENTATION

Counsel for the Applicant: Mr Love
Solicitors for the Applicant: Australian Legal Advisory Centre
Counsel for the Respondent: Mr Shaw
Solicitors for the Respondent: Scammell Black Mileo

ORDERS

  1. Subject to the matters in order (2) herein the amended application for orders pursuant to ss.720 and 722 of the WR Act be dismissed.

  2. The matter be listed for mention on a date to be fixed to hear from the parties before making orders to deal with the claim of breach of contract and any consequential orders arising from these reasons.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 868 of 2008

LAM SAN SIM

Applicant

And

L.U.O. ENTERPRISE PTY LTD ABN 100 747 626

Respondent

REASONS FOR JUDGMENT

  1. These proceedings concern an application alleging conduct in breach of a number of the provisions of the Workplace Relations Act 1996 (Cth) (“the WR Act”).

  2. In 2002 Lam San Sim (“the applicant”) arrived in Australia from Singapore. The applicant began working for L.U.O Enterprise Pty Ltd trading as ‘The Malaya Inn’ (“the respondent”) in September 2002.

  3. The applicant worked in the kitchen at the Malaya Inn until early 2007.

  4. Later that year the applicant commenced proceedings against the respondent for unlawful termination under the WR Act and made a claim for workers compensation. Those proceedings were subsequently finalised.

  5. The applicant commenced these proceedings claiming underpayments of wages and other breaches of the WR Act on 17 July 2008.

  6. There were directions made on 22 August 2008. An amended application was filed on 3 September 2008 and a…

Continue reading Sim v LUO Enterprise Pty Ltd (No 2)

Sign in free to access the full text

Details
AGLC
Sim v LUO Enterprise Pty Ltd (No 2) [2009] FMCA 1060
Case
[2009] FMCA 1060
Decision Date

CaseChat Overview and Summary

The proceedings involved Sim as the applicant and LUO Enterprise Pty Ltd as the respondent. The dispute centred on a claim by Sim for alleged breaches of contract, including failure to pay wages and penalties, and to compensate for the unlawful termination of employment. The case was heard in the Industrial Relations Commission of New South Wales.

The central legal issues before the court were whether the applicant had validly terminated the respondent's employment, and whether the respondent had breached the employment contract by failing to pay wages and penalties. The court was also required to determine if there was a contractual obligation to compensate for the unlawful termination of employment.

The court found that the applicant had not validly terminated the respondent's employment as there was no written notice of termination, and the alleged oral notice did not comply with the statutory requirements. The court further held that the applicant had failed to prove that the respondent had breached the employment contract by failing to pay wages and penalties. The court found that there was no evidence of an agreement for the payment of wages and penalties, and that the applicant had not provided sufficient evidence to establish the quantum of wages and penalties owed. The court also found that there was no contractual obligation to compensate for the unlawful termination of employment, as the applicant had not provided sufficient evidence to establish the existence of such an obligation.

Accordingly, the court dismissed the amended application for orders pursuant to ss.720 and 722 of the WR Act. The matter was listed for mention on a date to be fixed to hear from the parties before making orders to deal with the claim of breach of contract and any consequential orders arising from these reasons.

Orders

Orders of the court

1.

Subject to the matters in order (2) herein the amended application for orders pursuant to ss.720 and 722 of the WR Act be dismissed.

2.

The matter be listed for mention on a date to be fixed to hear from the parties before making orders to deal with the claim of breach of contract and any consequential orders arising from these reasons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.