Vujinovic v Martand International Pty Limited
[2013] FMCA 110
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VUJINOVIC v MARTAND INTERNATIONAL PTY LIMITED | [2013] FMCA 110 |
| INDUSTRIAL LAW – Fair Work small claims – applicant entitled to unpaid wages, unpaid annual leave, unpaid personal/carer’s leave and payment in lieu of notice upon termination. PRACTICE & PROCEDURE – no appearance by the respondent – matter proceeded ex parte. |
| Fair Work Act 2009 (Cth), ss.22, 87, 90, 96, 99, 107, 117, 311 |
| Applicant: | NADA VUJINOVIC |
| Respondent: | MARTAND INTERNATIONAL PTY LIMITED (ACN 145 535 324) |
| File Number: | SYG 2824 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 Vuzeska and Ms A Becroft, solicitors 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 $16901.86 (“the Judgment Sum”).
The Judgment Sum is to be paid within 28 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2824 of 2012
| NADA VUJINOVIC |
Applicant
And
| MARTAND INTERNATIONAL PTY LIMITED (ACN 145 535 324) |
Respondent
REASONS FOR JUDGMENT
By application filed on 3 December 2012 and “Form 5 Small claim under the Fair Work Act 2009 (Cth)” (“Form 5”) filed on 3 December 2012, the applicant seeks payments from the respondent for unpaid wages, unpaid annual leave, unpaid personal/carer’s leave, and payment in lieu of notice upon termination.
The applicant was assisted at the first hearing on 31 January 2013 by Ms Vuzeska, solicitor from the office of the Fair Work Ombudsman, and at the second hearing by Ms Becroft, solicitor from the office of the Fair Work Ombudsman. At the first hearing, Mr Vuzeska sought leave to proceed with the application ex parte.
In support of the application to proceed ex parte, Ms Vuzeska 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.
In light of the evidence before me, I am satisfied that the respondent was duly served with the application and the Form 5 on 13 December 2012. The application correctly identified 31 January 2013 as the first court date and hearing date, and informed the respondent that default orders may be made if there was no appearance. The application also informed the respondent that a response must be filed and served within 14 days of receipt of the application. There had been no document filed by the respondent. Nor had any communication been received by this Court or the applicant from the respondent either seeking an adjournment of the hearing or for any other reason. In the circumstances, I am satisfied that the applicant had a proper opportunity to participate in the proceeding before this Court and for whatever reason had chosen not to do so.
Accordingly, leave was granted to the applicant to proceed ex parte.
In support of the application, Ms Becroft read the affidavit of the applicant, affirmed 22 January 2013, in which the applicant claimed to have been employed as a Retail Manager by a company known as Integral Imports and Exports Pty Limited, trading under the name Your Place (“Integral”), from 2 August 2010 to 24 July 2011. Following a transfer of business, the applicant claimed to have been employed by Kudos Living from 25 July 2011 to 29 May 2012.
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.
In her affidavit, the applicant stated that in July 2011 she noticed that the name of the shop where she worked had changed to Kudos Living, that she was told by the sole director of Integral that the business was to be sold and that her entitlements would be transferred to Kudos Living, and that the sole director of the respondent introduced himself to her as the new director of the business. 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 transfer stock for the respondent from other outlets to the Rockdale outlet, as she had done previously 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 Fair Work Act 2009 (Cth) (“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 seeks payment for unpaid wages totalling $5,418.
This amount arises from the respondent’s alleged non-payment of six week wages during the period 16 January 2012 to 29 May 2012.
The applicant’s affidavit and Form 5 annexed a copy of a payslip dated 27 October 2010. That payslip identifies the applicant’s pay rate for ordinary hours worked as $23.76 per hour and her gross weekly wage for the pay period as $903. Bank statements annexed to the applicant’s affidavit correspond with the annexed payslip.
Based on the evidence and material before me, I am satisfied that the applicant remains unpaid for six weeks work, which, at the applicant’s gross weekly wage of $903, makes a total of $5,418 in unpaid wages.
Unpaid annual leave
The applicant seeks payment of $6,607.66 for unpaid annual leave.
This payment comprises 148 hours and 40 minutes of unpaid annual leave from the applicant’s time with Integral, and 129 hours and 26 minutes of unpaid annual leave from her time with the respondent; making a total of 278 hours and 6 minutes of unpaid annual leave.
Pursuant to s.87 of the FWA, four weeks of annual leave accrue progressively to the applicant for each year of service. As I have found that there was a transfer of business from Integral to the respondent, under s.22(5) of the FWA, the applicant’s period of service with Integral counts as service with the respondent.
Accordingly, based on the evidence and material before me, I am satisfied that the applicant is owed 278 hours and 6 minutes of unpaid annual leave from the respondent, which, at $23.76 per hour, makes a total of $6,607.66.
Unpaid personal/carer’s leave
The applicant also seeks payment of $3,070.20 for unpaid personal/carer’s leave.
Pursuant to s.96 of the FWA, an employee is entitled to 10 days of paid personal/carer’s leave for each year of service with an employer and this entitlement accrues progressively.
Based on the evidence and material before me, during the course of her employment, the applicant accrued 74 hours and 20 minutes of personal/carer’s leave with Integral, and 64 hours and 43 minutes of personal/carer’s leave with the respondent; making a total of 148 hours and 53 minutes of accrued personal carer’s leave.
Based on the evidence and material before me, including, in particular, the medical certificates annexed to the applicant’s affidavit, I find that the applicant took 17 days of sick leave during her employment with the respondent for which she has not been paid.
I also find that based on her affidavit on the medical certificates annexed to it, find that the applicant complied with the requirement in s.107 of the FWA to give adequate notice of her intention to take leave.
Pursuant to s.99 of the FWA, if an employee takes a period of paid personal/carer’s leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period of leave.
As I have found that, in accordance with the payslip annexed to the applicant’s affidavit, the applicant had a base rate of pay for ordinary hours worked of $23.76 per hour, and that the applicant took 17 days or 129.2 hours, of sick leave, I find that the applicant is entitled to $3,070.20 in unpaid personal/carer’s leave.
Payment in lieu of notice
The applicant also seeks $1,806 as payment in lieu of notice upon termination.
Based on the evidence in the applicant’s affidavit that the General Manager of the respondent left a message on her telephone to the effect of “do you need separation papers”, and that the manager of the shopping centre where she worked told her that the store where she worked had shut down, I find that the applicant’s employment with the respondent was terminated on 29 May 2012.
Having accepted that the employed was employed by Integral from 2 August 2010 to 24 July 2011 and by the respondent from 25 July 2011 to 29 May 2012, a period of between one and three years, under s.117(3)(a) of the FWA, the respondent was required to give the applicant at least two weeks notice of her termination. Based on the evidence and material before me, the respondent failed to do so.
Based on a gross weekly wage of $903, which I accept based on the payslip and bank statements annexed to the applicant’s affidavit, and the respondent’s requirement to give two weeks notice, I find that the applicant is entitled to $1,806 as payment in lieu of notice upon termination.
Conclusion
In the circumstances, I am satisfied that the applicant is entitled to $5,418 in unpaid wages; $6,607.66 in unpaid annual leave; $3,070.20 in unpaid personal/carer’s leave; and, $1,806 as payment in lieu of notice; making a total of $16,901.86.
Accordingly, judgment should be entered for the applicant in the total sum of $16,901.86.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 21 March 2013
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