WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. PARTIES MICHELLE ANDREA COLE DIGNAM, APPLICANT v. INATURE AUSTRALIA PTY LTD, RESPONDENT CORAM COMMISSIONER A R BEECH DELIVERED FRIDAY, 10 AUGUST 2001 FILE NO APPLICATION 900 OF 2001 CITATION NO. 2001 WAIRC 03512 _______________________________________________________________________________ Result Application alleging denied contractual entitlements granted. Representation Applicant Mr D. Moss (as agent) Respondent No appearance _______________________________________________________________________________ Reasons for Decision. (Extemporaneous) 1 I am satisfied that Ms Dignam was employed by the respondent and I am also satisfied in relation to the following matters concerning her claim. 2 I am satisfied that for the period between Monday, 26 March 2001 to Wednesday, 11 April 2001, Ms Dignam performed work for the respondent. That work was performed pursuant to a contract of employment the terms of which were the continuation of the previous fixed term contract which had by then expired. 3 I am satisfied that the terms of Ms Dignam’s employment continued because of the lack of any evidence of any agreement between the parties to change any of the conditions. It would seem to me that the only practical consequence of Ms Dignam continuing to work after the expiration of the term of the fixed term contract is that she continued without a further fixed term. That is, her contact really became a continuous and ongoing contract of employment. 4 I therefore find that the wage that Ms Dignam was earning at the period that I have indicated was $500.00 per week and I therefore find that for the period between 26 March 2001 to 11 April 2001 that Ms Dignam performed work but was not paid and is therefore owed the wages that were earned between that time at the rate of $500.00 per week. To that extent therefore I would declare that Ms Dignam has been denied a benefit under her contract of employment being wages for work performed for that period of time. 5 I now turn to what is the second part of Ms Dignam’s wages claim. The evidence is that from 11 April 2001 Ms Dignam attended a meeting of her work colleagues where the news gradually disseminated that the respondent was in trouble and that for the period between 11 April 2001 until in fact the termination of her employment received by facsimile on 19 April 2001, Ms Dignam was still employed. That is, no steps had been taken by the respondent to terminate her employment. She had not in any sense sought to terminate her employment. It is merely that, by virtue of circumstances, she was unable to attend the work premises, they having been closed or locked up for whatever reason. She was not contacted by the respondent to perform work in any other location and the fact remains therefore that between 11 April 2001 to 19 April 2001 Ms Dignam did not perform any work. 6 On that basis, I am not of the view that Ms Dignam can succeed with a claim that she is entitled to be paid wages as a benefit under her contract of employment if in fact work was not performed. 7 However, it does seem to me to be quite arguable that by virtue of Ms Dignam’s employment, Ms Dignam had as a benefit under her contract of employment the opportunity to work. There is limited authority to support WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2579 81 W.A.I.G. such a proposition certainly in relation to persons who maintain a career by virtue of their reputation, for example, such as entertainers and so on where it is important for them to perform their work in order to establish a reputation and thus find further work and it has been held that for such persons the opportunity to work is indeed a benefit under the contract of employment. That is not to say that the nature of Ms Dignam’s employment is of an entertainment nature or that those circumstances apply. However, it does seem to me to be arguable that whilst a person is employed by an employer where there is no right in law for an employer to stand down an employee either with or without pay, but in this case without pay, that it is quite a reasonable proposition that such a person is being denied a benefit under their contract of employment the benefit being the opportunity to earn wages. 8 It does seem to me, that Ms Dignam is able to succeed with a variation to her claim that Mr Moss has put to me in his submissions and that is that the benefit that has been denied to Ms Dignam is the right to earn wages she having been ready, available and willing to do so between 11 April 2001 and 19 April 2001 and I am satisfied that she should be awarded a monetary equivalent of the wages she would have earned between that period as compensation for the loss of the opportunity to earn them. 9 The contract of employment provided for eight weeks’ notice of termination. Ms Dignam was entitled to that as a benefit under her contract and yet she merely received the letter of termination given by Mr Hirschberg and no payment in lieu. Accordingly, it is a benefit under her contract of employment which she has been denied. An Order will issue paying her that benefit. 10 The next item of the claim is a claim for pro-rata annual leave. I am satisfied from the schedule that has been provided, that being exhibit 11, that on the calculations on that schedule, the claim for annual leave is $1,285.00. The issue then arises as to whether or not the period for which Ms Dignam did not perform work is service for the purposes of annual leave. I suspect it is not, and indeed that seems to be acknowledged in the way the schedule has broken up the days of her employment in any event. 11 It does seem to be, however, consistent with the reasoning in my earlier decision that Ms Dignam has an entitlement to be compensated for the lost opportunity to provide service between 11 April 2001 and 19 April 2001 and it would seem to me that if the purpose of the compensation of Ms Dignam for that matter is to be consistently applied then Ms Dignam should not also lose by the lost opportunity to work. 12 It would seem to be therefore that whether Ms Dignam’s service for annual leave purposes is calculated only up to and including 10 April 2001 and then Ms Dignam pursues compensation, if that is the correct word, for the opportunity to accrue service for annual leave purposes as an alternate claim on the one hand or whether she pursues the entire claim in relation to pro-rata annual leave on the other does not seem to me to produce a significantly materially different result. It therefore seems to me that in these circumstances the appropriate Order to issue is to declare that Ms Dignam has been denied a benefit under her contract of employment that being pro-rata annual leave on termination and that being a matter that is provided for within the contract of employment. 13 Accordingly, the claim having been amended according to those calculations it appears to me that it is appropriate to make an Order that the respondent pay Ms Dignam the amount of $1,285.00 by way of pro-rata annual leave due upon termination of her employment. 14 The final claim is a matter of superannuation and as I have indicated during the course of those proceedings while a claim for a superannuation payment that arises under the Federal Statute is a claim over which this Commission has no jurisdiction, here the contract of employment makes it clear that the superannuation entitlement is an express provision and therefore I find that it is a benefit that is due under the contract of employment. It seems to me therefore that an appropriate Order to issue is to require the respondent to pay the superannuation benefit due to Ms Dignam in accordance with the contract of employment and that as I presently understand it is set out in exhibit 4 and that is that it is to be a payment made by the respondent to Westpac Business Superannuation on Ms Dignam’s account, she having the membership number which is set out in exhibit 4. 2001 WAIRC 03543