Shilna Malde v Richard Trainer — Benchmark — WA Industrial Relations Case Database

Ratio

The applicant was entitled to recover unpaid wages and accrued annual leave entitlements from her employer Richard Trainer, having worked 114.66 hours unpaid at $20.25/hour ($2,313.77) and accrued annual leave of $734.06, totalling $3,047.83. The respondent's failure to defend the claim and the applicant's credible evidence established the denied contractual benefits.

Outcome

For applicant granted

Authority signal

Not yet cited by other cases Signal-weighted score: 0.0

Derived from how later decisions have treated this case. Dark green = leading authority, green = positively treated, grey = neutral or sparse data, amber = caution, red = treated negatively.

Key facts · 7

Applicant was employed from 31 January 2019 on the basis of a written contract between 'M4 Unit Trust as Trustee for the M4 Unit trust' and the applicant
Contract specified hourly rate of $20.25 and entitled applicant to annual leave and payout of accrued annual leave on termination
Applicant dealt exclusively with Richard Trainer in relation to her employment and execution of the contract
Applicant worked 114.66 hours unpaid, totalling $2,313.77
Applicant was not paid for one public holiday
Applicant did not receive payout of accrued annual leave totalling $734.06
Respondent did not appear at hearing despite proper service of notice

Factors

For

Applicant's credible, unchallenged evidence of work performed and non-payment
Written contract clearly specifying hourly rate and annual leave entitlements
Applicant dealt exclusively with the respondent Richard Trainer in relation to employment
Respondent's failure to appear and defend the claim

Against

Legislation referenced

Industrial Relations Act 1979 s26

Concept tags · 6

[P]Wages — payment obligations [P]Annual leave [P]Denied contractual benefits (WA s29(1)(b)) [P]Accrued leave on termination [S]Public holiday entitlement [S]Joinder / amendment of parties

Principles · 3

articulates para 2

Where proceedings are properly served but a respondent fails to appear, the tribunal may proceed in the respondent's absence.

articulates para 5

The applicant's true employer may be determined by evidence of who the applicant actually dealt with in relation to employment, notwithstanding the description of the entity in the contract document.

articulates para 6

It is consistent with equity, good conscience and the substantial merits of the case to amend the respondent's identity to reflect the true employer, rather than being constrained by technical or legal forms in the naming of the party.

Related cases · 10

Decisions sharing two or more primary concepts with this case.

Citation	Court	Date	Outcome	Shared	Cited
[2016] WAIRC 728 Guy Millman v United Petroleum	WAIRC — Single Commissioner	2016-08-29	For applicant	4	0
[2016] WAIRC 102 Ian Mooney v Seven G Engineering Pty Ltd	WAIRC — Single Commissioner	2016-02-24	For applicant	4	0
[2024] WAIRC 766 Jason Jowett v Coastal R.E. Pty Ltd atf Coastal Unit Trust	Industrial Magistrates Court	2024-08-14	For applicant	3	1
[2020] WAIRC 804 Duc Hien In v Oakside Group Pty Ltd ATF OAK FAMILY TRUST	Industrial Magistrates Court	2020-09-17	Resolved	3	1
2025 WAIRC 00318 Michael Ian Duxbury v Aerison Pty Ltd - ABN 85 060 786 656	Industrial Magistrates Court	2025-05-01	For applicant	3	0
[2020] WAIRC 836 Giuseppe Riolo v Kiss Kiss Food Supplies Pty Ltd	Industrial Magistrates Court	2020-10-01	For applicant	3	0
[2019] WAIRC 657 Mr Connor Geoffrey Liddelow v Richard Trainer	WAIRC — Single Commissioner	2019-08-29	For applicant	3	0
[2019] WAIRC 660 Jessica Stanway v Richard Trainer	WAIRC — Single Commissioner	2019-08-29	For applicant	3	0
[2018] WAIRC 700 Jeremy Stanislaus v California Pizza Kitchen (Pizza Australia ABN 89 609 127 013)	Industrial Magistrates Court	2018-08-23	Resolved	3	0
[2017] WAIRC 1024 Emanuele Livigni v Josh Gibbens	WAIRC — Single Commissioner	2017-12-20	Resolved	3	0

Archived text (464 words)

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2019 WAIRC 00661 CORAM :Commissioner D J Matthews HEARD : Friday, 2 August 2019 DELIVERED : THURSday, 29 August 2019 FILE NO. : B 69 OF 2019 BETWEEN : Shilna Malde Applicant AND Richard Trainer Respondent CatchWords : Denied contractual benefits claim - Proceeded in the absence of respondent - Applicant not paid salary and accrued annual leave entitlement Legislation : Industrial Relations Act 1979 s26 Result : Application granted Representation: Counsel: Applicant : In person Respondent : No appearance === REASONS FOR DECISION === ¶1 (Given extemporaneously at the conclusion of proceedings – as edited by Commissioner Matthews) ¶2 I proceed in the absence of the respondent in this matter, because, despite being properly served by the Western Australian Industrial Relations Commission with notice of the hearing, the respondent did not put in an appearance and was not outside the hearing room when called by my Associate. ¶3 These proceedings were commenced against “The Trustee for M4 Unit Trust”. ¶4 The contract of employment produced by the applicant and dated 31 January 2019 was between “M4 Unit Trust as Trustee for the M4 Unit trust” and the applicant. ¶5 That description of an entity seemed nonsensical to me and I enquired of the applicant as to whom she had dealt with in relation to her employment and the execution of the contract. She gave evidence that in relation to both she dealt exclusively with a person named Richard Trainer. ¶6 On the basis of the applicant’s evidence, I am of the view that the applicant’s true employer was Richard Trainer. I consider that it is consistent with equity, good conscience and the substantial merits of the case to amend the respondent to “Richard Trainer”. I have a concern that the case would be affected by “technicalities and legal forms” if I do not make such an order. ¶7 Before commencing employment with the respondent on 31 January 2019, the applicant had signed a contract, which gave her $20.25 an hour in terms of remuneration (clause 10) and also gave her an entitlement to annual leave and an entitlement to a payout of any accrued annual leave at the time her employment ended (clauses 25 and 27). ¶8 The applicant gave evidence, which I accept as she appeared to be an honest and truthful witness, that she was not paid for a total of 114.66 hours that she worked, totalling $2,313.77. The applicant also gave evidence that she did not get paid for one public holiday and that she did not get a payout for the annual leave she had accrued during her period of employment, totalling $734.06. ¶9 An order will be made that Richard Trainer pay to Ms Shilna Malde the sum of $3,047.83 forthwith.