WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Industrial Relations Act 1979. Peter Dean Bastow and Pamela Mason. No. 693 of 1989. COMMISSIONER S.A. KENNEDY. 22nd day of August 1989. Reasons for Decision. THE COMMISSIONER: This application was filed pursuant to section 29(b)(ii) of the Industrial Relations Act 1979. By it the applicant, Mr Peter Bastow, claims that he is due entitlements in accordance with a contract of employment he had with Ms Pamela Mason. The entitlements claimed are outstanding wages and payment of a sum of money in lieu of notice. A conference pursuant to section 32 of the Act was convened but there was no appearance by or on behalf of the respondent and, on subsequently being asked by the Commission whether she wished to pursue that course, the respondent declined. The applicant's claim is summarised as follows: that he applied for a job with Ms Mason and, after an interview, he was offered and accepted the position of head chef; that he commenced that employment on 17 April 1989; that it was a term of his employment that he be paid $500 nett for each week of work provided that by agreement, the amount to be paid per week for the first four weeks was $250 nett with the sum of $1 000 nett being due on the completion of four weeks' service and thereafter $500 nett per week was to be paid; and that he was dismissed on lOMay 1989 without due notice of one week or payment in lieu of such notice ($500 nett) and without outstanding wages of $600 nett. The applicant acknowledges that he received a total of $1 400 from the respondent during his employment. He seeks an Order from the Commission that the respondent pay him a total of $1 100 nett. The respondent admits that there was a contract of employment between her and the applicant and that Bastow was engaged as a head chef but denies that it was on the terms claimed by the applicant and denies that the applicant was dismissed at all. According to the respondent Bastow abandoned his employment on 10 May 1989. The Commission also was told that Bastow's employment was covered by an award, that he was paid award rates and that the terms on which he was engaged included a wage of $250 nett per week with "incentive" bonuses from time to time at the discretion of the employer but with the first review for such a payment to be after four weeks' service by the applicant. The questions for the Commission in this matter are limited. First, what were the terms of the contract of employment? Second, was there due service in accordance with the contract of employment thereby giving rise to entitlements? Third, if so have those entitlements been received? The applicant and the respondent presented their own cases. Each gave sworn evidence in the form of statements and was subject to cross-exa mination by the other. No other witnesses were called and there are no exhibits before the Commission. The Commission endeavoured to facilitate the parties' understanding of procedures, the ramifications of certain procedural actions and the need to contain their respective cases to relevant matters. But these endeavours were only partially successful. The level of acrimony on each side is evidenced in the series of allegations and counter allegations throughout the proceedings. The Commission's role of course in matters of this nature is limited to findings of fact and conclusions thereupon. In arriving at those findings and conclusions I have had regard only for that evidence which went to questions to be answered. The onus is on the applicant to establish his claim on the balance of probabilities. It is an agreed fact that in the course of his employment the applicant received a total of $1 400 from the respondent. It is an agreed fact that $1 000 of this represented wages. It is an agreed fact that the contract of employment ended 10 May 1989. What is not agreed and which must be established are the following. Was the employment covered by an award or order of the Commission such to preclude its consideration pursuant to section 29(b)(ii) of the Act? If the Commission as constituted has jurisdiction, was it a term of the contract that after four weeks' service the applicant would be paid wages of $1 000? Was the applicant dismissed? Was it a term of the contract that its termination was by way of one week's notice or payment in lieu of notice? If the applicant was dismissed did he receive payment in lieu of notice? It is Ms Mason's evidence that the applicant was paid the weekly award rate for a head chef. The particulars of any award were not put before the Commission but, having regard for the nature of the place of work and the work done. I have concluded that the Restaurant. Tearoom and Catering Workers Award 1979 is relevant. The prescribed rate for a chef — there being no "head chef classification atthat time under this Award was $323.20 per week. However it is the applicant's evidence that he simply received cheques for the amounts of $250 each week and that he believed no taxation deductions were made to arrive at this figure. This assumption was not challenged. No books were produced by the respondent and it appears no pay slips were received by the applicant. This strongly suggests that the applicant's version is to be preferred. There is other evidence which supports this view. The respondent's evidence is that she was not happy with the applicant's work. Yet there is the agreed fact that in the course of his employment she paid him $400 in advance of the four weeks' service because he requested it, a payment which she says was of a discretionary nature and to be paid for performance. This discrepancy suggests that the payment was in fact a benefit, and was not the subject of an award or order of this Commission. Having regard for this and all the relevant material before me I have concluded that it was a benefit of the contract that the applicant be paid wages of $500 nett per week with, by agreement, $250 of that wage per week being deferred until completion of four weeks' service. And while I note that the applicant's schedule as filed nominates 17 April 1989 as the commencement date of the contract of employment, both the applicant and the respondent gave evidence to the effect that it commenced earlier than that date. I have concluded that at the time the contract of employment ended it was in its fifth week. It follows that the applicant is due that portion of the deferred payment, being $600, not received. It remains to deal with the question of termination. The applicant's evidence is that at the end of the four weeks he gave one week's notice of termination but was dismissed during that week without notice. Having regard for the evidence so far as it goes to the events of 10 May 19891 have concluded that the fact of a significant level of luncheon bookings and a booking for 300 that evening make it unlikely that the respondent would have dismissed the applicant at that time. And although there was clearly a heated exchange between the applicant and the respondent, I am not convinced that the words used by the respondent were such to categorically have the effect of dismissal. It seems to me that it is likely that the applicant interpreted the respondent's words in that way and left. But that is not the end of the matter. There is still the question of notice. If, as I have concluded, the applicant left his employment on 10 May 1989 the question becomes whether he was in breach in so doing and thereby liable to a forfeiture of moneys in lieu of notice. I have concluded that it was not in that the terms of the contract of employment between the parties had already been seriously breached by the respondent such that the applicant was under no obligation. It follows that the applicant is due wages without loss for the three days he attended at work in the fifth week. As to notice, I have concluded that notwithstanding the evidence of the applicant having given one week's notice, there is insufficient before the Commission to establish that period of notice as a term of the contract. Having regard for that and for the fact of the Restaurant Tearoom and Catering Workers' Award 1979, I have concluded that that part of the applicant's claim should fail. Finally I note that in the course of these proceedings the respondent alleged that the applicant had improperly threatened her prior to this proceeding and in relation to the Commission. It cannotbe said that this allegation was substantiated by the respondent. Appearances: The applicant appeared on his own behalf. The respondent appeared on her own behalf.