Warren v Diamond Power (Australia) Pty Limited
[1996] IRCA 456
•30 August 1996
DECISION NO: 456/96
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 6233 of 1995
B E T W E E N:
Gregory Robert WARREN
Applicant
A N D
DIAMOND POWER (AUSTRALIA) PTY LIMITED
Respondent
REASONS FOR SUPPLEMENTARY DECISION
30 August 1996 PARKINSON JR
On 23 August, 1996 I issued a decision in relation to this application wherein I made Orders for payment by the respondent of remuneration lost by the applicant as a consequence of the termination of his employment. By Orders made that day, the parties were directed to confer in relation to the quantum of the remuneration lost and the matter was relisted for final Orders by the Court in relation to that amount. The parties were unable to resolve two aspects of the remuneration and consequently were unable to agree on the amount of the remuneration lost in the period between the date of the termination of the employment and the date of the Order for reinstatement. I now decide those matters, and accordingly issue an Order for the sum of the lost remuneration.
The applicant contends that in the amount of the Order for remuneration lost, account ought be taken of an amount which was paid as a travelling allowance. This amount it was submitted is paid weekly and payable whilst the applicant is on annual leave, sick leave and other authorised leave. In addition it was submitted the evidence identifies this amount as having been paid by the respondent as a component of the termination payments made to the applicant. The respondent submits that this amount was paid by mistake at termination. I do not accept that this is so, there being no evidence to suggest this to be the case. I nevertheless do not consider that the travelling allowance, treated as it is in the pay records as a true allowance, forms part of the ordinary pay rate of the applicant. I am not satisfied that the amount of the travel allowance is appropriate to be included in the amount of ordinary earnings determined by the Court to be ordered as remuneration lost. I accept that in view of this allowance being a true allowance in recognition of travelling time and expense incurred, the allowance is truly characterised as a reimbursement of an expense and in this case as no expense of that type was incurred in the period between the date of termination and the date of the Order for reinstatement, no accounting for that amount ought be made in sum ordered by the Court.
As to the issue as to whether the applicant’s lost wages ought be referable to 38 or 40 hours of work per week. I accept that the ordinary hours of work of the applicant were 40 hours per week. That arrangements were made between the parties, whether pursuant to an industrial agreement or otherwise, for an accrual of hours to a rostered day off does not detract from this position. I accept that the applicant was entitled to ordinary time earnings for a period of 40 hours per week and the sum ordered by the Court will account for the ordinary time rate of pay for the period of 40 hours per week. Having regard to the above matters I have decided that the relevant ordinary time earnings of the applicant are the sum of $645.20, including superannuation contributions. That amount does not include the amount of the travelling allowance. In all other respects the parties are in agreement and those amounts are usefully set out on a document provided to the Court this day, which was correspondence from the applicants solicitors to the solicitors for the respondent . The number of weeks of lost remuneration is 36. The amount of lost remuneration is in total $23,227.20. From this amount is to be deducted the sum of $1,337.04 in earnings during the relevant period and the amount of $5,641.60 being the notice and severance payments made to the applicant at the time of termination of the employment. That results in total deductions of $6,978.64 from the amount of $23,227.20. The Order of the Court as to the amount of remuneration to be paid will be in the sum of $16,248.56. Time for payment will be 21 days from the date of the Order.
I certify that this and the preceding two (2) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.
Associate : Paul Ferguson
Dated : 30 August 1996
APPEARANCES
Counsel appearing for the applicant : Mr. D. Staindl & Mr. M. Champion
Solicitors for the applicant : Holding Redlich
Counsel appearing for the respondent : Mr. J. D’Abaco
Solicitors for the respondent : Phillips Fox
Date of hearing : 30 August 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 6233 of 1995
B E T W E E N:
Gregory Robert WARREN
Applicant
A N D
DIAMOND POWER (AUSTRALIA) PTY LIMITED
Respondent
MINUTES OF ORDERS
30 August 1996 PARKINSON JR
THE COURT ORDERS THAT:
Further to the Orders of the Court made in this proceeding on 23 August 1996, the amount of remuneration lost to be paid by the respondent to the applicant is $ 16,248.56.
Time for payment is 21 days from the date of this Order.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
CATCHWORDS
INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION -
- calculation of amount of REMUNERATION lost as consequence of - TERMINATION OF EMPLOYMENT -
Industrial Relations Act 1988, s170EA
GREGORY ROBERT WARREN v
DIAMOND POWER (AUSTRALIA) PTY LIMITED
VI 6233 of 1995
Before: PARKINSON JR
Place: MELBOURNE
Date: 30 August 1996
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