WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES DEBORAH MARGARET HAMPSON, APPLICANT v. DIRICH PTY LTD T/A TRAVELWORLD STIRLING, RESPONDENT CORAM COMMISSIONER J L HARRISON DATE THURSDAY, 31 JULY 2003 FILE NO/S. APPLICATION 1140 OF 2002 CITATION NO. 2003 WAIRC 08895 _________________________________________________________________________________________________________ Result Application for contractual benefit allowed. Representation Applicant Ms D Hampson on her own behalf Respondent No appearance _________________________________________________________________________________________________________ Reasons for Decision (Given extemporaneously at the conclusion of the proceedings as edited by the Commissioner) 1 This is an application by Deborah Margaret Hampson (“the applicant”) pursuant to section 29(1)(b)(ii) of the Industrial Relations Act 1979 (“the Act”). The applicant alleges that she is owed benefits due to her under her contract of employment with Dirich Pty Ltd Trading as Travelworld Stirling (“the respondent”). 2 The respondent did not appear at the hearing. On 25 March 2003, as a result of communications between the Western Australia Industrial Relations Commission (“the Commission”) and the respondent, Ms Di’anne Dolzan, the respondent’s director, informed the Commission that her new address was PO Box 600, Albion, Queensland. A notice of hearing was sent to that address on 10 June 2003 and was not returned to the Commission. As I am satisfied that the respondent was given adequate notice of today’s hearing I formed the view that it was appropriate that the hearing go ahead. Even though the respondent has had adequate notice of the hearing for whatever reason the respondent chose not to appear. 3 The applicant is claiming $1000.00 in overtime payments due to her for additional hours worked throughout December 2000 and January 2001. The applicant gave evidence that during this period the respondent was short staffed and instead of working her normal 26.5 hours per week, she worked on a full-time basis for approximately five weeks. The applicant stated that during this period she worked an additional 71 hours over and above her normal hours. The applicant gave evidence that she was not paid for undertaking these additional hours at the time because the respondent maintained it was short of funds. The applicant gave evidence that Ms Dolzan agreed to pay the applicant $1000.00 in return for the applicant undertaking this overtime but this money had not been paid to the applicant. 4 Exhibit A1 is a copy of the applicant’s contract of employment with the respondent. This contract confirms that the applicant was to work 53 hours per fortnight and that she was to be paid an hourly rate of $12.00 per hour for additional hours worked over her set hours. 5 On 6 June 2002 the respondent made the applicant redundant. When she was terminated the applicant asked the respondent about the $1000.00 payment for overtime worked in December 2000 and January 2001 which had still not been paid to her. The respondent confirmed that it would honour this payment of $1000.00 and this was confirmed in writing to the applicant on 7 June 2002 (Exhibit A2). This letter states that the respondent will pay the applicant $1000.00 for the extra hours worked once the sale of the respondent’s business has been processed. The applicant gave evidence that given this undertaking she agreed to wait for the business to be sold. The applicant tendered letters acknowledging the respondent’s promise to pay the applicant $1000.00 once the business was sold (Exhibit A3). The applicant understood that even though the respondent’s business was sold in October 2002, she has still not been paid the $1000.00 owing to her. 6 The applicant gave her evidence clearly and, in my view, honestly and her evidence was supported by the contents of the exhibits tendered. On this basis I have no hesitation in accepting the applicant’s evidence. 7 In an application for contractual benefits under s.29(1)(b)(ii) of the Act, the onus is on the applicant to establish that the subject of the claim is a benefit to which the applicant was entitled under his or her contract of employment. It is for the Commission to determine the terms of the contract of employment and to ascertain whether the claim constitutes a benefit which has been denied under the contract of employment, having regard to the obligations on the Commission to act according to equity, good conscience and the substantial merits of the case (Belo Fisheries v Froggett (1983) 63 WAIG 2394; Waroona Contracting v Usher (1984) 64 WAIG 1500; Perth Finishing College Pty Ltd v Watts (1989) 69 WAIG 2307). 8 I am satisfied that the applicant has made out her claim that she is owed $1,000.00 in outstanding overtime payments. I find that the applicant worked approximately 71 hours overtime during the period December 2000 and January 2001 when the respondent was short staffed. I also find that the respondent acknowledged that $1,000.00 was due to the applicant for working this overtime, and the applicant’s entitlement to be paid overtime is outlined in the applicant’s contract of employment (Exhibit A1). 9 It is clear that when the applicant was made redundant the respondent continued to acknowledge that $1,000.00 was to be paid to the applicant. Notwithstanding this undertaking to pay the overtime due to the applicant, the $1,000.00 has not been paid. As I have found that the applicant is entitled to be paid for working the additional hours during the relevant period and as I have found that the respondent agreed to pay $1000.00 in satisfaction of that claim, it is my view that an order should issue that the respondent pay the applicant $1000.00 as the applicant has been denied a benefit due to her under her contract of employment. 10 A Minute of Proposed order will issue in those terms. _________ 2840 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. 2003 WAIRC 08966