CITATION : 2012 WAIRC 00422 CORAM : ACTING SENIOR COMMISSIONER P E SCOTT HEARD : THURSDAY, 28 JUNE 2012 DELIVERED : FRIDAY, 6 JULY 2012 FILE NO. : B 187 OF 2011 BETWEEN : DIANA ELIZABETH DOWNS-STONEY Applicant AND CULUNGA ABORIGINAL COMMUNITY CORPORATION Respondent 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1599 CatchWords : Denied contractual entitlements – contract of employment – validity of contract – notice of termination – pro-rata annual leave –payment in lieu of notice Result : Order issued Representation: Applicant : Ms D Downs-Stoney on her own behalf Respondent : Ms G Corunna and with her Mr A Corunna Reasons for Decision 1 The applicant was employed by the respondent from the 24 January to 19 August 2011 as the Principal of its school. 2 The applicant has given evidence that she was employed by the respondent during the absence of the previous Principal, who was on leave. She applied for the position following an advertisement and made enquiries as to certain conditions. She was interviewed by three people being Mr Roland Bartlett and Ms Diane Blurton, Directors of the Corporation and Mr Darryl Eades, the then School Principal. She was offered the position and following discussions, she signed a contract of employment. She says that the original document was stolen from her drawer, however, she says that the document which is exhibit 2, is the same document as she signed except for an amendment to the salary. Under the heading of salary in the contract it was agreed that the figure of $100,000 would be amended to $85,000 because the school was not in a financial position to pay her the higher salary at that time. However, she agreed that she would accept $85,000 until the school was on a more sound financial footing. She would then be paid the $100,000 and, she says that the difference would be back-dated. 3 The applicant says that within a fortnight of commencing and having access to the school’s finances she discovered that the school was in financial difficulty and only had sufficent funds to cover the next two pay periods, after which it would be out of funds. She contacted a range of organisations including writing to the Minister for Education requesting emergency funding to allow the school to continue to operate. She says this funding was provided subject to conditions which included that the organisation meet the funding body’s governance and accounting requirements. She gave evidence that a number of attempts were made to have the Board meet, however, no quorum was present. She sought assistance from the Office of the Registrar of Indigenous Corporations and a Mr Mastralembo came to assist the school to attempt to remedy the deficiencies. When the emergency funding was drawing to an end, the issues had not been resolved and were unlikely to be resolved. 4 On Friday 19 August 2011 a letter was received by the school to advise that the Minister had decided to cancel the school’s registration as from that date. Accordingly the applicant received a letter from the Chairperson of the Corporation dated 19 August 2011, advising her that: The Department of Education Services cancelled the registration of the Culunga Aboriginal Community School effective Friday, 19th August 2011. Your employment at the school is therefore terminated as of close of business 19th August 2011. (exhibit 3) 5 The applicant says she spent time assisting to place children at other schools. She then collected her own belongings from the school, locked up the school and handed the keys to the Catholic Education Office which owned the property. She says that she has had no further involvement in the school. 6 The applicant says that on the afternoon of 19 August 2011 the children were conveyed home as usual by the school’s three buses. Two of those buses were subsequently abandoned on her property and she sought to have them removed. 7 The applicant says that the two buses are still on her property and that when she left the school there was a significant amount of other assets at the school which would be available to be liquidated to meet the school’s debts. 8 The applicant claims that she was not provided with notice of the termination of her employment in accordance with the contract and claims 10 weeks’ pay in lieu of that notice. She says that she has not been paid annual leave in accordance with the contract and seeks 3.74 weeks’ pay. She also seeks superannuation contributions in the amount of $5,069.42. She has reported the issue of unpaid superannuation to the Australian Taxation Office and has received advice that her claim is being investigated (exhibit 4). 9 The applicant has produced her bank account records which indicate that during the initial period of her employment she was paid fortnightly amounts of $2,057.23, which she says was the net amount of her reduced salary of $85,000 per annum. She says that from 6 April 2011 her salary was increased to $100,000 in accordance with the conditions under which she accepted the reduced salary, and that she was back-paid for the deficiency to that point. She also says that from that point she received regular amounts of salary at the rate of $100,000 per annum with some additional amounts to cover reimbursements of expenses and these are recorded in her bank account records (exhibit 5). She has also submitted a payslip which shows the pay of 10 August 2011 as including wages of $3,846.15 gross for the fortnight and an accumulation of leave of $2,307.70 (exhibit 6). 10 The applicant’s claim for annual leave is said to be based on there being 12 weeks per annum in accordance with her contract. At the time of termination she says she had accrued 7.74 weeks by reference to the standard means of calculating annual leave provided to her by Wageline. From this she has deducted the two weeks during the April holidays and the two weeks in July holidays leaving a balance of 3.74 weeks leave due to her. 1600 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. 11 Gwen Phyllis Corunna gave evidence for the respondent. She was a foundation member of the Corporation and was a member of the Board for a number of years including 2011. 12 Ms Corunna referred to records of meetings of the respondent which questioned the applicant’s salary entitlements. She says that the contract was never accepted by the respondent and although the Board asked to sight the contract, they were never shown a copy. She therefore questions the validity of the contract. 13 Ms Corunna also submitted other documents dealing with the financial circumstances of the respondent and she raised concerns regarding expenditure of monies by the applicant. 14 Ms Corunna’s main focus in her evidence was an expression of her regret at the closure of the school which was there to meet the particular needs of aboriginal children. The cancellation of the registration of the school and the closing of the school, she says, is detrimental to the aboriginal community children. 15 Although he did not give evidence, Mr Corunna made a submission challenging the calculation of the applicant’s claims saying they do not add up. He also says there is insufficient money to pay the applicant the amounts she claims. However there was no demonstration of this. 16 I have considered the evidence before me and make the following findings. Although the contract appears to have been questioned during the course of a Management Sub-Committee meeting, nothing further appears to have been done to challenge it. On the contrary, it is quite clear that the contract was entered into, the applicant worked in accordance with that contract for some seven months and she was paid in accordance with the terms of the contract during that time. She agreed to a salary of $85,000 for a period, after which the salary was increased to $100,000 and the difference back-paid. From the beginning of April, the salary was paid at a higher rate. 17 In those circumstances and based on the evidence of the applicant, which I accept, I find that the document which she submitted as exhibit 2 is a copy of the contract of employment between herself and the respondent except that the annual salary of the Principal was changed to $85,000 on the understanding that it would increase and back-pay be made to $100,000 once the respondent was in a financial position to do so. The emergency funding was provided and I accept the applicant’s evidence that one of the conditions of that funding was that employees were to be paid in accordance with their award entitlements or contractual arrangements. CONSIDERATION AND CONCLUSIONS Pay in lieu of notice 18 The contract of employment provides the following terms in respect of notice: Duration of the Contract: This contract will commence on the 25th January 2011 and will expire on the 31st day of December 2011, unless for unforeseen circumstances require the contract to be terminated earlier. Unforeseen circumstances includes, but not limited to, poor performance, reduced enrolments at Culunga and a change in the School’s financial position. Termination of Contract: Except in the case of misconduct the parties agree that a minimum of 10 weeks notice in writing shall be given by either party to take effect from the close of school business at the end of a school term/end of school year. Failure to give the required notice will make that party liable to forfeiture or payment to the other party of an amount equivalent to one term’s pay or an amount equivalent to that period of notice not given or served. Provisions are provided that these requirements may be waived in part or whole by mutual agreement, between the Principal and the Employer. Where the Principal’s service are terminated prior to the completion of the 12 months continuous service, the Principal shall be entitled to payment of prorate annual leave. 19 The contract of employment provided for termination prior to the expiration date of December 2011 in the case of unforeseen circumstances requiring the contract to be terminated earlier. It is clear that the cancellation of the registration and the consequential closure of the school constitute such circumstances. The applicant’s employment was terminated on 19 August 2011 due to the cancellation of the registration. 20 I find that notice was not given in accordance with the contract, which required that there would be a minimum of 10 weeks’ notice in writing. The contract provides that notice ‘shall be given by either party to take effect from the close of school business at the end of a school term/end of school year’. The applicant does not seek this, rather she seeks the 10 weeks’ notice. I am satisfied that she has not been provided with notice. In accordance with the contract she is entitled to 10 weeks’ pay at her normal rate of pay, which according to the applicant’s payslip and from the calculation of her salary of $100,000 per annum that her weekly pay was $1,923.08. Ten weeks’ pay is $19,230.80 gross. Annual Leave 21 The contract provided: Annual Leave: The Principal shall be allowed the holidays granted by the school in which he/she is employed, including term and Christmas vacations, without deduction of pay. The Principal may be required to carry out duties as reasonably directed by the Employer during school holidays provided that the Principal receives not less than six weeks annual leave on full pay. 22 I also refer to the last paragraph quoted above under the heading of Termination of Contract which provided for ‘prorate annual leave’. 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1601 23 The contract provided a number of provisions dealing with annual leave. The first is that the Principal was to be allowed the holidays granted by the school including term and Christmas vacations without deduction of pay. Her employment commenced on 24 January 2011 and she was allowed the two periods of two weeks in April and July 2011 without deduction of pay. 24 Secondly, there is the provision that ‘[t]he Principal may be required to carry out duties as reasonably directed by the Employer during the school holidays provided that the Principal receives not less than six weeks’ annual leave on full pay’. In this case, by the time her employment terminated the applicant had taken four weeks’ leave. 25 Thirdly, there was an entitlement to a pro-rata payment should the employment be terminated prior to the completion of 12 months’ continuous service. 26 It is clear that as the contract was for a period of less than 12 months then a pro-rata entitlement would apply in any event. 27 Based on the contractual terms, had the school year run until 15 December 2011 there would have been 2.5 weeks of the contractual period for which the applicant would have been allowed leave without deduction of pay. However, that period had not arisen by the time the employment terminated. 28 There are two methods of calculating the annual leave. The first would be to take the total amount of leave which the applicant might have enjoyed had she remained for the 12 months and this, according to her calculations, was 12 weeks. Of this 12 weeks she had taken four. Then there would have been a further 2.5 weeks at the end of the contractual period, during which she could have taken leave on the basis of being allowed the holidays granted by the school without deduction of pay. However, given the limited duration of the contract and that her employment terminated prior to that, the provisions for a pro- rata benefit became operative. The contract ran from 24 January 2011 until 31 December 2011, however, it terminated on 19 August 2011 being 29 weeks of employment. Twelve months’ continuous service would have brought a total of 10 weeks’ vacation and holidays. Twenty nine weeks out of 52 x 12 weeks equals a pro-rata entitlement of 6.69 weeks. 29 The applicant had already taken four weeks leave which leaves an amount of 2.69 weeks' leave at the rate of $1,923.08. 30 The second method simply looks at what the contract provided, ie a minimum of six weeks annual leave on full pay (emphasis added). In this case the applicant would still have at least two weeks’ leave due to her. 31 I am more inclined to the former calculation on the basis that the pro-rata entitlement should reflect the lack of symmetry of vacation periods during the school year. 32 I find it more appropriate in the circumstances that the contractual provision for 12 weeks for a completed year of service be applied. Therefore, the entitlement is for a pro-rata amount outstanding of 2.69 weeks’ leave at $1,932.08 per week being, an amount of $5,173.08 gross owing to the applicant for pro-rata annual leave. Superannuation 33 The contract provided the following terms: Superannuation: Superannuation will be paid in accordance with the rates specified by the Superannuation Guarantee Act. 34 The provision for superannuation is not a contractual term as such, but merely refers to an entitlement arising from Commonwealth legislation. Accordingly, the matter is appropriately dealt with by the Australian Taxation Office rather than pursuant to this application. 35 In conclusion I find that the applicant is entitled to be paid by the respondent the amount of $19,230.80 gross as pay in lieu of notice and $5,173.08 for pro-rata annual leave. 2012 WAIRC 00434 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES DIANA ELIZABETH DOWNS-STONEY APPLICANT -v- CULUNGA ABORIGINAL COMMUNITY CORPORATION RESPONDENT CORAM ACTING SENIOR COMMISSIONER P E SCOTT DATE FRIDAY, 13 JULY 2012 FILE NO/S B 187 OF 2011 CITATION NO. 2012 WAIRC 00434 Result Order issued 1602 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. Order HAVING heard the applicant on her own behalf and Ms G Corruna and with her Mr A Corunna on behalf of the respondent, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders: THAT: 1. The respondent pay to the applicant the amount of: (a) $19,230.80 in lieu of notice; and (b) $5,173.08 for pro-rata annual leave; less any amounts due to the Australian Taxation Office. 2. The payments referred to in Order 1 above to be paid no later than 21 days from the date of this order. 3. The application be, and is otherwise hereby dismissed. (Sgd.) P E SCOTT, [L.S.] Acting Senior Commissioner. 2012 WAIRC 00719 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES PETER MICHAEL GILLETT APPLICANT -v- FUJITSU AUSTRALIA LTD (ABN 19 001 011 427) RESPONDENT CORAM ACTING SENIOR COMMISSIONER P E SCOTT DATE THURSDAY, 2 AUGUST 2012 FILE NO/S B 41 OF 2012 CITATION NO. 2012 WAIRC 00719 Result Application dismissed Order WHEREAS this is an application pursuant to Section 29(1)(b)(ii) of the Industrial Relations Act 1979; and WHEREAS on the 10th day of May 2012 the Commission convened a conference for the purpose of conciliating between the parties; and WHEREAS at the conclusion of that conference the parties agreed to enter into further negotiations in an effort to reach a settlement; and WHEREAS on the 6th day of July 2012 the applicant filed a Notice of Discontinuance in respect of the application; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby dismissed. (Sgd.) P E SCOTT, [L.S.] Acting Senior Commissioner. 2012 WAIRC 00367 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES PATRICIA ANN GRACE APPLICANT -v- DAVID STEWART RAWLINSON RESPONDENT CORAM COMMISSIONER S J KENNER DATE TUESDAY, 19 JUNE 2012 FILE NO/S U 32 OF 2012, B 32 OF 2012 CITATION NO. 2012 WAIRC 00367 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1603 Result Application discontinued Representation Applicant Ms R Roach Respondent Mr A Drake-Brockman Order WHEREAS the applicant filed a notice of discontinuance, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders – THAT the application be and is hereby discontinued. (Sgd.) S J KENNER, [L.S.] Commissioner. 2012 WAIRC 00696 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES BRENDAN MALCOM HOSIE APPLICANT -v- MATTHEW ALLEN MELVILLE SUBARU RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE THURSDAY, 26 JULY 2012 FILE NO/S U 123 OF 2012 CITATION NO. 2012 WAIRC 00696 Result Application discontinued Representation Applicant Mr B Hosie Respondent Mr G Dean Order WHEREAS this is an application pursuant to section 29(1)(b)(i) of the Industrial Relations Act 1979; AND WHEREAS on 29 June 2012 the Commission convened a conference for the purpose of conciliating between the parties; AND WHEREAS at the conclusion of the conference an agreement was reached between the parties; AND WHEREAS on 11 July 2012 the applicant advised the Commission to file the Notice of Discontinuance in respect of the application; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby discontinued. (Sgd.) S M MAYMAN, [L.S.] Commissioner. 1604 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. 2012 WAIRC 00443 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES DONALD MCLEAN APPLICANT -v- PATHWEST LABORATORY MEDICINE WA DEPARTMENT OF HEALTH GOVERNMENT OF WESTERN AUSTRALIA RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE THURSDAY, 19 JULY 2012 FILE NO/S U 111 OF 2012 CITATION NO. 2012 WAIRC 00443 Result Application dismissed Representation Applicant No appearance Respondent No appearance Order WHEREAS this is an application pursuant to section 29(1)(b)(i) of the Industrial Relations Act 1979; AND WHEREAS this matter was listed for hearing on 12 July 2012 for the applicant to show cause why his application should not be dismissed; AND WHEREAS the applicant failed to attend the hearing; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders - THAT this application be, and is hereby, dismissed. (Sgd.) S M MAYMAN, [L.S.] Commissioner. 2012 WAIRC 00690 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES ANTHONY CHARLES PHILLIPS APPLICANT -v- CASTLE EQUIPMENT HIRE PTY LTD RESPONDENT CORAM COMMISSIONER S J KENNER DATE TUESDAY, 24 JULY 2012 FILE NO/S B 2 OF 2012 CITATION NO. 2012 WAIRC 00690 Result Order issued Representation Applicant Mr P Mullally Respondent Ms M Ivanovski 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1605 Order WHEREAS the applicant filed a notice of discontinuance, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders – THAT the application be and is hereby discontinued. (Sgd.) S J KENNER, [L.S.] Commissioner. 2012 WAIRC 00747 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES DAVID PRESTON APPLICANT -v- COM-AL WINDOWS RESPONDENT CORAM ACTING SENIOR COMMISSIONER P E SCOTT DATE FRIDAY, 10 AUGUST 2012 FILE NO/S B 84 OF 2012 CITATION NO. 2012 WAIRC 00747 Result Application dismissed Order WHEREAS this is an application pursuant to Section 29(1)(b)(ii) of the Industrial Relations Act 1979; and WHEREAS on the 14th day of June 2012 the Commission convened a conference for the purpose of conciliating between the parties; and WHEREAS at the conclusion of that conference the parties agreed to continue negotiations with a view to resolving the matter; and WHEREAS on the 26th day of July 2012 the applicant filed a Notice of Discontinuance in respect of the application; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby dismissed. (Sgd.) P E SCOTT, [L.S.] Acting Senior Commissioner. 2012 WAIRC 00748 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES DAVID PRESTON APPLICANT -v- COM-AL WINDOWS RESPONDENT CORAM ACTING SENIOR COMMISSIONER P E SCOTT DATE FRIDAY, 10 AUGUST 2012 FILE NO/S U 84 OF 2012 CITATION NO. 2012 WAIRC 00748 Result Application dismissed 1606 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. Order WHEREAS this is an application pursuant to Section 29(1)(b)(i) of the Industrial Relations Act 1979; and WHEREAS on the 14th day of June 2012 the Commission convened a conference for the purpose of conciliating between the parties; and WHEREAS at the conclusion of that conference the parties agreed to continue negotiations with a view to resolving the matter; and WHEREAS on the 26th day of July 2012 the applicant filed a Notice of Discontinuance in respect of the application; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby dismissed. (Sgd.) P E SCOTT, [L.S.] Acting Senior Commissioner. 2012 WAIRC 00441 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES JAYNE ROGERS APPLICANT -v- MICHELLE'S GOURMET RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE THURSDAY, 19 JULY 2012 FILE NO/S B 101 OF 2012 CITATION NO. 2012 WAIRC 00441 Result Application discontinued Representation Applicant No appearance Respondent No appearance Order WHEREAS this is an application pursuant to section 29(1)(b)(i) of the Industrial Relations Act 1979; AND WHEREAS on 4 July 2012 the applicant filed a Notice of Discontinuance in respect of the application; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby discontinued. (Sgd.) S M MAYMAN, [L.S.] Commissioner. 2012 WAIRC 00442 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES JAYNE ROGERS APPLICANT -v- MICHELLE'S GOURMET RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE THURSDAY, 18 JULY 2012 FILE NO/S U 101 OF 2012 CITATION NO. 2012 WAIRC 00442 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1607 Result Application discontinued Representation Applicant No appearance Respondent No appearance Order WHEREAS this is an application pursuant to section 29(1)(b)(i) of the Industrial Relations Act 1979; AND WHEREAS on 4 July 2012 the applicant filed a Notice of Discontinuance in respect of the application; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby discontinued. (Sgd.) S M MAYMAN, [L.S.] Commissioner. 2012 WAIRC 00709 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION