WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Industrial Relations Act 1979. Edmond K.W. Cheung and Peony Garden Chinese Restaurant. No. 177 of 1992. COMMISSIONER R.N. GEORGE. 19 June 1992. Reasons for Decision. THE COMMISSIONER: On 14 Febraary 1992 Mr Edmond K.W. Cheung (the Applicant) filed in the Commission an application for an Order against Peony Garden Chinese Restaurant (the Respondent) pursuant to Section 29(b)(ii) of the Industrial Relations Act 1979 for a benefit not allowed to him by his employer, not being a benefit under an award or Order of the Commission, to which he claimed to be entitled under his contract of service. The benefit claimed is $2,509.59 being $1,666.70 in wages for the period 31 December 1991 to 25 January 1992, and $842.89 said to have been expended on behalf of the Respondent and not reimbursed. Attempts to resolve the claim by conciliation were unavailing due to the failure of the Respondent to attend at a meeting arranged at the Commission for that purpose. As a consequence, the matter was listed for hearing and determination at 10:30am on 16 June 1992. The Respondent again failed to record an appearance and the matter proceeded in its absence. Because of the failure of the Respondent to attend the Commission it is relevant to note the sequence of events since the application was filed on 14 February 1992. On 3 March 1992 the Applicant filed in the Commission a Declaration of Service to the effect that the Notice of Application and attached Particulars of Claim had been served on the Respondent at 53 Lake Street, Northbridge, that being the address from which the Respondent operated its business. There was no Answering Statement filed by the Respondent and on 13 March 1992, in a letter to the Registrar, the Applicant requested that the application be dealt with in accordance with the Industrial Relations Act 1979 (the Act). A hand written note on that letter recorded a new address for the Respondent at C/—Trader Nick's, Northbridge Pavilion, James Street, Cnr. Lake Street, Northbridge. On 18 March 1992 the Deputy Registrar of the Commission was directed pursuant to Section 93(8) of the Act to investigate and report to the Commission on the prospects of settlement of the claim. On 19 March 1992 both the Applicant and the Respondent were notified in writing of a meeting scheduled for 10:30am on 10 April 1992 for that purpose. The notice to the Respondent was forwarded to both the Peony Garden Chinese Restaurant at 53 Lake Street, Northbridge and to Trader Nick's at the Northbridge Pavilion, corner of James and Lake Streets, Northbridge. On 10 April 1992 the application file was noted by an officer of the Commission to the effect that both the Applicant and the Respondent had telephoned and requested that the meeting be postponed until 10 May 1992. On 10 April 1992, a notice was forwarded to the Applicant and the Respondent at the addresses used for the earlier notice dated 19 March 1992. On 15 April 1992 a further notice was sent amending the date set for the meeting to 11 May 1992. There was no attendance by the Respondent at the appointed time and there being no capacity to pursue the matter through conciliation, the Applicant requested that the application proceed to formal hearing. On 18 May 1992 a Notice of Hearing issued confirming that the matter would proceed in the Commission on Tuesday, 16 June 1992 at 10:30am. Copies of the Notice of Hearing were forwarded to the Applicant and the Respondent at the addresses to which the notices dated 19 March, 10 April and 15 April 1992 had been sent. In the course of the hearing, the Commission was informed by the Applicant that following receipt of the Notice of Hearing he had made contact with a Mr loannou 1630 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 72 W.A.I.G. of the Respondent in an attempt to resolve his claim. According to the Applicant, Mr loannou told him at the time that he had received the Notice of Hearing and asked the Applicant if he would pick him up so they could travel together to the Commission on the appointed day. The Applicant agreed but when he called to pick up Mr loannou he was not at his place of residence. Given the above the Commission is satisfied that every attempt had been made to ensure the Respondent was represented before the Commission and that no purpose would be served by adjourning proceedings. There was nothing to suggest that an adjournment would assist in the resolution of the matter by way of conciliation or that it would result in any different response to a further Notice of Hearing. In the circumstances it was decided to proceed to hear and determine the matter in the absence of the Respondent pursuant to the powers available under Section 27(l)(d) of the Industrial Relations Act 1979. The facts as they are revealed from the sworn evidence of the Applicant are as follows. The Applicant commenced work for the Peony Garden Chinese Restaurant as Purchasing Manager from a date not made known to the Commission but prior to November 1991. On 1 December 1991, Mr Peter loannou took over the operation of the restaurant and came to an arrangement with the Applicant which continued his employment. There was no formal contract covering the Applicant's employment but the arrangement which applied, in so far as it is relevant to the claim before the Commission, was that he would receive a wage of $400.00 nett after tax which would be paid weekly in arrears. A normal week was worked over six days, with each Tuesday being a day off. The pay week commenced on the Monday and finished on the Sunday. If work was required on the normal day off he was paid, according to the records submitted to the Commission as Exhibit 2, a normal day's pay. It was a further condition of his employment that the Applicant would make purchases on behalf of the restaurant of food and other necessities from moneys advanced to him for that purpose. This arrangement was altered by Mr loannou shortly after he took over the restaurant and the Applicant was asked to make the purchases using his own funds which would later be reimbursed. The Applicant was dismissed from his employment on 25 January 1992 at which time he was owed wages for the period 30 December 1991 to 25 January 1992, a total of three weeks and five days for ordinary time worked plus an additional day worked in the week ending 5 January 1992 when the restaurant was opened on the Tuesday for a special function. Based on the rate of wage to which the Applicant was entitled under his contract, this calculates to an amount of $1,600.00 nett after tax, not $1,666.70 as claimed. It appears from the evidence that the additional $66.70 wages in the figure calculated by the Applicant is based on a claim for payment in lieu of notice of termination. It was acknowledged by him, however, that notice of termination was not a condition of employment discussed with the Respondent and there was nothing in the evidence to enable notice of termination to be implied into the contract. In addition to outstanding wages, the Applicant was also owed $842.89 for purchases made from his own funds which had not been reimbursed. The amounts claimed were said by the Applicant in his evidence to have been acknowledged as owing by the Respondent who had given as the reason for non-payment a shortage of money. The Applicant supported his evidence as to the amounts claimed with copies of the wages records showing the weekly wages earned by the staff at the Peony Garden Chinese Restaurant for the period of the claim and the signatures indicating receipt of payment were applicable (Exhibit 2) and with detailed records and receipts for purchases made on behalf of the Respondent between 6 December 1991 and 13 January 1992 (Exhibit 3). The Applicant also submitted a cheque dated 31 December 1991 for an amount of $660.90 drawn under the name of "Trader Nick's" in his favour and returned by the R & I Bank marked "Refer to Drawer" (Exhibit 1). The relevance of this Exhibit to the claim, however, is not clear from the evidence. Owing to the failure of the Respondent to record an appearance in these proceedings, the Commission is left with no option but to determine the application of the uncontested evidence of the Applicant. The Applicant presented as an honest person and there was nothing in his demeanour or in what he said during proceedings which raises cause to doubt the truth of the evidence given. In all of the circumstances, I am satisfied that the claim by the Applicant, subject to the adjustment to the amount of wages claimed to be outstanding referred to earlier in these Reasons for Decision, is made out. The application is therefore to be determined by an Order that the Respondent pay to the Applicant an amount of $2,442.89 within seven days of the date on which the Order is issued through the Registry. Appearances: The Applicant appeared on his own behalf. There was no appearance on behalf of the Respondent.