WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2016 WAIRC 00356 CORAM :Commissioner D J Matthews HEARD : Tuesday, 31 May 2016 DELIVERED : Wednesday, 8 june 2016 FILE NO. : B 62 OF 2016 BETWEEN : Nicholas Liyanage Claimant AND John Kevin Flynn Respondent CatchWords : Claim for denied contractual benefits – No opposition to claim – Payment by instalment requested – Claimant amenable to instalments – Payment by instalment ordered Legislation : Industrial Relations Act 1979 (WA) section 29(1)(b)(ii) Result : Claim allowed, payment by instalments ordered Representation Claimant : In person Respondent : In person === REASONS FOR DECISION === ¶1 On 31 May 2016 I made an order in favour of the claimant in this matter. These are my short reasons for having done so. ¶2 On 13 April 2016 the claimant lodged a claim for unpaid wages in the Western Australian Industrial Relations Commission. The amount particularised was “approx $35,000”. ¶3 By Notice of Answer and Counter Proposal lodged in the Western Australian Industrial Relations Commission on 10 May 2016 the respondent stated that he did not oppose the claimant’s claim. ¶4 By subsequent correspondence the parties were able to agree that the correct amount of denied contractual entitlements was $37,509.14. ¶5 A hearing was necessary however because the parties were not able to agree matters relating to the payment of the amount of $37,509.14. Absent such agreement it was necessary for the Commission to make an order and to hear the parties before making the order. ¶6 At the outset of the hearing I explained to the respondent that the usual order would be that the entire amount be paid to the claimant forthwith or in a short period of time and that if an order in such terms was not to be made the onus was upon him to show cause. ¶7 The respondent then gave evidence about his financial position. It is not necessary to record that evidence in these reasons in any detail. The respondent’s evidence that the only asset of any value that he held was the dental business in which the claimant had worked was not placed in issue by the claimant. Nor did the claimant dispute that the respondent’s earnings from month to month were not a great deal more than his reasonable expenditure. The claimant, much to his credit in my view given the way the respondent had treated him, expressed the view that the respondent had given him no reason to believe that he was not an honest man. ¶8 The point of contention between the parties related to the sale of the dental business. ¶9 The respondent is currently trying to sell the business and appears to have been making efforts to do so for some time. ¶10 The respondent wants a certain price for the business based upon his desire to, out of the sale proceeds, clear his debts, which, including the debt to the claimant, total around $200,000, and have $100,000 left over for his retirement, which will commence upon the sale of the business. That is, the respondent is trying to achieve a sale price of $300,000 for the business. ¶11 The claimant expressed concern that the price the respondent wanted for the business was unrealistic and gave unfair primacy to the respondent’s desire to have funds available for his retirement over the settlement of his debts. That is, the claimant thought that a realistic sale price was a lower amount than $300,000 and that if the respondent was prepared to sell at a realistic price this could happen, and happen soon, and he would then be paid the money he was owed. ¶12 There was a clear basis in the evidence for the claimant’s position. The respondent admitted that the business had been professionally valued at a lower amount than the one he was seeking. However, the respondent gave evidence that he believed his strategy was not unrealistic and then revealed that negotiations with a potential buyer, at something close to his asking price, were well advanced. ¶13 I could have made an order that $37,509.14 be paid forthwith. The respondent could hardly have argued that this was unfair given that he has not paid the claimant for work done going back to March 2015. I note that it is particularly unfair that the claimant has not been paid as his pay was calculated at 40% of gross earnings. That is, the respondent has had the benefit of the gross earnings produced by the claimant’s labour without paying the claimant for the work done in producing those earnings. ¶14 However, I have to accept that if I had made an order for payment forthwith, and had the respondent decided to comply with the order, this would have obviously required him to sell the dental business quickly, and that this would weaken his position in the current or other negotiations. ¶15 In the event, and largely because of the generous attitude of the claimant for which I commend him, I decided not to go down that path and I made orders that the claimant receive some money now, further money over the next couple of months and the balance in September 2016, when the respondent says he will have completed the sale of his business. These orders mean that the claimant starts to receive some money from the respondent now with the entire amount being paid relatively soon and the respondent is not forced into a “fire sale” that could affect his retirement plans. ¶16 I make my orders having every expectation that, of course, they will be complied with, as in any case, however I wish to add that the form of the order extends indulgences to the respondent that he had no right to ask for and which the claimant had no obligation to be accommodating in relation to. The claimant’s attitude, which has been important in the form of the order made, involves understanding for and trust in the respondent. It is to be hoped that that understanding and trust will not be abused.