Whalan v Spill Control Systems Pty Ltd
[2011] FMCA 552
•15 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WHALAN v SPILL CONTROL SYSTEMS PTY LTD | [2011] FMCA 552 |
| INDUSTRIAL LAW – Practice & procedure – no participation by respondent – summary judgment – whether applicant is entitled to payment in lieu of long service leave and accrued leave upon termination. |
| Fair Work Act 2009, ss.81(1); 90 Federal Magistrates Court Rules 2001, r.13.03B(2) Long Service Leave Act, s.4 |
| Applicant: | JOHN GEORGE WHALAN |
| Respondent: | SPILL CONTROL SYSTEMS PTY LTD ACN 068 615 172 |
| File Number: | SYG 576 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 15 July 2011 |
| Date of Last Submission: | 15 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 15 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Mahendra |
| No appearance by or on behalf of the respondent |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 576 of 2011
| JOHN GEORGE WHALAN |
Applicant
And
| SPILL CONTROL SYSTEMS PTY LTD ACN 068 615 172 |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The applicant seeks an order pursuant to Rule 13.03B(2)(c) of the Federal Magistrates Court Rules 2001 that judgment be entered against the respondent on the basis that the applicant appears entitled to the judgment on the statement of claim, and the Court is satisfied it has power to grant the relief sought.
Rule 13.03B(2)(c) states relevantly that:
(2) If a respondent is in default, the Court may:
(c) if the proceeding was commenced by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings – give judgment against the respondent for the relief that:
(i) the applicant appear entitled to on the statement of claim; and
(ii) the Court is satisfied it has power to grant.
The history of this matter is usefully set out by counsel for the applicant, Mr Mahendra, in submissions filed on 12 July 2011 as follows:
1. INTRODUCTION
1.1 Pursuant to rule 13.03B(2)(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”), the Applicant seeks judgment against the Respondent for the relief that the Applicant has claimed in his Statement of Claim plus interest and costs.
1.2 The Applicant’s case is simple. He was an employee of the Respondent between 24 April 1995 and 4 January 2011. At the time of termination of the Applicant’s employment, the Applicant was entitled to:
(a) $31,872.24 (gross) in accrued annual leave pursuant to sections 87 and 90 of the Fair Work Act 2009 (“the FW Act”); and
(b) $22,134.81 (gross) in accrued long service leave pursuant to sections 113(1) of the FW Act and section 4 of the Long Service Leave Act 1955 (NSW) (the “LSL Act”).
1.3 The Applicant has not received any such payments from the Respondent since the date of his termination.
2. BACKGROUND TO PROCEEDINGS
2.1 The Applicant commenced proceedings by way of an Application filed on 29 March 2011.
2.2 The Application together with Points of Claim was served on the Respondent on 31 March 2011 (affidavit of Diana Claire Bourke sworn 11 April 2011).
2.3 On 11 April 2011, having not received any response from the Respondent, the Applicant served a further copy of the Application and Points of Claim on the Respondent (affidavit of Matthew Ellsmore sworn 13 April 2011).
2.4 On 14 April 2011, the matter was listed for directions. The Respondent did not appear.
2.5 On 15 April 2011, the Applicant served a copy of the Orders made at the directions hearing on the Respondent (affidavit of Matthew Ellsmore sworn 19 April 2011)
2.6 On 19 April 2011, the Applicant filed a Statement of Claim pursuant to an order by the Court that the proceedings continue by way of pleadings.
2.7 On 2 May 2011, the Applicant served a copy of the Statement of Claim on the Respondent (affidavit of Matthew Ellsmore sworn 12 May 2011).
2.8 On 19 May 2011, the matter was listed for directions. The Respondent did not appear. The Court made orders requiring the Respondent to file and serve a Defence to the Applicant’s Statement of Claim on or before 8 June 2011.
2.9 On 20 May 2011, the Applicant served a copy of the Orders made at the abovementioned directions hearing on the Respondent (affidavit of Jacqueline Ruth Angelos sworn 20 May 2011).
2.10 By 8 June 2011, the Respondent had not filed and served any Defence.
2.11 On 16 June 2011, the matter was listed for directions. The Respondent did not appear. The Court made orders requiring the Respondent to file and serve a Defence by 24 June 2011 and in the event the Respondent failed to comply with the order an further order that the matter would be set down for hearing on 15 July 2011.
2.12 On 17 June 2011, the Applicant served a copy of the Orders made at the abovementioned directions hearing on the Respondent (affidavit of Jacqueline Ruth Angelos sworn 17 June 2011).
Having regard to previous orders made by the Court and referred to above and the applicant’s compliance with those orders and the complete failure of the respondent either to comply with the orders or participate in the hearing in any manner, I am satisfied that the respondent is in default for the purposes of Rule 13.03B(2).
I am further satisfied that, having regard to the applicant’s compliance with the orders of this Court, as reflected in the affidavits of service, that the respondent is, or should be, aware of the proceeding before this Court. The respondent has been given at least two opportunities to file and serve a defence in this proceeding.
RECORDED : NOT TRANSCRIBED
The applicant has also, either, been served with copies of the orders made on each occasion by this Court, or, been informed of the nature of the orders made by this Court by way of formal service upon the respondent at the respondent’s registered office.
In support of the application this morning, the applicant read the affidavit of John George Whalan, sworn 12 July 2011. The contents of the affidavit is as follows:
“Introduction
1. I am the Applicant named in the Application relating to the debts owed by the Respondent.
2. Annexed hereto and marked with the letter “A” is a copy of a search of the records of the Australian Securities and Investments Commission records with respect to the Respondent Company, Spill Control Systems Pty Limited, as at 11 May 2011.
3. I was a director of the Respondent Company until 3 January 2011 when I resigned my office. Annexed hereto and marked with the letter “B” is a copy of the instrument recording the cessation of my office as director (being Form 484 Document No. 7E3457864).
Employment with the Respondent
4. I was employed by the Respondent as Manager of its business operations from 24 April 1995 continuously until my employment was terminated on 4 January 2011.
5. During the period of my employment I worked in excess of 40 hours per week, but received a salary based on a 40 hour week. As at the date that my employment was terminated I was paid $1,625.77 gross before tax per week at the rate of $40.6442 per hour.
6. On 6 January 2011, I was handed a Centrelink document titled- ‘Employment Separation Certificate’ by Joanne Trethowan, Office Manager for the Respondent. Annexed hereto and marked with the letter “C” is a copy of the Employment Separation Certificate.
7. On 10 September 2010, at my request, Joanne Trethowan provided me with a document titled “Entitlement Balance [Summary]” setting out my entitlements to accrued annual leave and long service leave. Annexed hereto and marked with the letter “D” is a copy of the Entitlement Balance [Summary]. The handwriting on the document is that of Joanne Trothowan. She wrote those notations in my presence.
8. I did not take any of my accrued annual or long service leave entitlements between 10 September 2010 and the date that my employment was terminated. I have calculated my accrued annual leave and long service leave entitlements on the basis of the Entitlement Balance [Summary] at annexure “D”. Annexed hereto and marked with the letter “E” is a copy of my calculations as to my accrued entitlements to 4 January 2011 which I calculate at $54,007.05.
9. Since these proceedings were commenced on 29 March 2011, I have not received any payment from the Respondent with respect to my accrued annual leave and long service leave entitlements.
10. Annexed hereto and marked with the letter “F” is a copy of a schedule of interest calculated at the rate of 8.75% from 4 January 2011 to 15 July 2011. By my calculations interest will have accrued on my outstanding entitlements to 15 July 2011 in the amount of $2,486.40.
11 The debts totalling $54,007.05 mentioned in the Application remain due and payable by the Respondent.
In particular, the evidence before the Court demonstrates that, as at the date of the applicant’s termination of his employment with the respondent on 4 January 2011, the applicant had annual accrued leave and long service leave from 10 September 2010 due in the amounts of $50,040.51. Annexure D to Mr Whalan’s affidavit reflects those figures and was a document that the applicant deposed was given to him at his request on 10 September 2010 by the office manager of the respondent.
Further, the applicant deposed in his affidavit that his hourly rate of pay was $40.65 an hour and that he worked regularly at least a 40 hour week. The applicant seeks judgment against the respondent in the amount of $54,007.05, being the total amount of accrued leave and long service leave from 10 September 2010 until his termination on 4 January 2011.
RECORDED : NOT TRANSCRIBED
Annexed to Mr Whalan’s affidavit is a calculation by him of the further amount of accrued annual leave and long service leave calculated on a 40 hour week at the hourly rate of $40.65, that amount being added then to the amount in annexure D of the applicant’s affidavit.
The applicant deposes that he has not received any payment from the respondent with respect to any accrued annual leave and long service entitlement since 10 September 2010. The applicant claims to be entitled to long service leave pursuant to, in particular, section 4(5) of the Long Service Act.
RECORDED : NOT TRANSCRIBED
I note that annexure C to the applicant’s affidavit, being the employment separation certificate, is dated 6 January 2011. There is nothing on that document to identify the date of termination, and I accept the evidence of the applicant, as reflected in his affidavit, that his employment was terminated on 4 January 2011. I accept that in the circumstances the relevant calculations should be from 10 September 2010 to 4 January 2011 being the date on which the accrued long service leave and accrued annual leave became due and owing.
Pursuant to section 87(1)(a) of the Fair Work Act 2009, the applicant was entitled to four weeks annual leave for each year of service. I note that, pursuant to section 90 of the Fair Work Act 2009 upon the termination of employment the applicant became entitled to any untaken paid annual leave.
In the circumstances, I am satisfied that judgment should be entered against the respondent for the amount claimed by the applicant in paragraph 10A of his statement of claim filed on 19 April 2011, being an amount of $54,007.05.
The applicant seeks interest on this amount from 4 January 2011 to date. I am satisfied that the respondent ought to pay interest in respect of the judgment debt for that period.
RECORDED : NOT TRANSCRIBED
The applicant claims interest at the rate of five per cent from 4 January 2011 to date. I am satisfied that that is an appropriate amount. I am satisfied that interest at five per cent ought to be paid as claimed.
RECORDED : NOT TRANSCRIBED
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 29 July 2011
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