Cairnduff v KNZ Australia Pty Limited t/a Kerry Australia [2005] QIRC 103 (2005) 179 QGIG 719

[Extract from Queensland Government Industrial Gazette, dated 12 August, 2005, Vol. 179, No.17, pages 719-720] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – power to recover unpaid wages and superannuation etc. Steven Ian Cairnduff AND KNZ Australia Pty Limited t/a Kerry Australia (No. W72 of 2005) DEPUTY PRESIDENT BLOOMFIELD 1 August 2005 Application under s. 278 of the Industrial Relations Act 1999 for recovery of unpaid wages and superannuation contributions – Non-appearance of applicant – Proceedings continued in absence of applicant – Respondent presented its case – Application without merit – Application dismissed. REPORT ON DECISION (as edited) In giving his decision from the Bench on 22 July 2005, Deputy President Bloomfield stated: “I should record that the time is now 10.22 a.m. The matter was scheduled to be heard at 10.00 a.m. and there is no appearance by the applicant, Mr Cairnduff. I have caused for enquiries to be made in the office of the Industrial Registrar and there has been no contact made by Mr Cairnduff with anyone in the Industrial Registry to suggest he is running late or that he is in any other way detained. There are no messages on my telephone and there are no messages on my associate’s telephone. The transcript of proceedings indicate that Vice President Linnane called the matter on earlier in the week because of consistent and persistent failures by Mr Cairnduff to comply with directions orders. During the course of the discussion with Vice President Linnane, Mr Cairnduff was, on my reading of the transcript, quite argumentative and belligerent. From the available records that also appears to have been the case in earlier discussions he has engaged in with the staff of the Industrial Registrar’s office and with the person that assists Vice President Linnane in the programming and conduct of applications of this type. The transcript also suggests that at one point Mr Cairnduff might have simply hung up the telephone in the course of his discussions with Vice President Linnane. The alternative view is that the line dropped out. I hold to the view that the alternative view is probably not correct because later attempts to contact Mr Cairnduff were unsuccessful with every call going to his mobile telephone’s message bank. If the call had dropped out one would have assumed Mr Cairnduff would have made contact with Vice President Linnane or someone in the Industrial Registry to make some inquiries about what transpired and what he was required to do. The fact that he did not make any such contact and did not engage in any such conduct suggests to me that he probably did hang up. That view is bolstered by the non-appearance of Mr Cairnduff today, and I note in passing the time is now 10.25 a.m., and there is still no appearance from him and we did ask the Industrial Registrar’s office to let us know if there was any contact from Mr Cairnduff and there has been no contact. In all of the circumstances I shall proceed to hear and determine the application in the applicant’s absence. The respondent has prepared a case in response to the application and it is entitled to be heard.”. The respondent called one witness and produced two exhibits to support its case. At the conclusion of that evidence the respondent asked for the application to be dismissed. The Commission made the following statement: “I should record at the moment it is 10.38 a.m. and Mr Cairnduff is still not here. I have considered the material that the applicant, Mr Cairnduff, has supplied in support of his contention that there are wages owing. I also have considered the material filed in these proceedings by Mr Duff and the evidence of Mr Duff. I am satisfied on the material that has been presented that Mr Cairnduff does not have a claim for any unpaid wages. It seems clear that he resigned without giving notice and I so determine. It also seems clear that at the time of his resignation he had been paid until the end of the month. It also seems clear that he entered into an agreement in writing, albeit in an unusual method through an SMS message, to repay certain moneys that he owed the respondent in respect of personal mobile telephone calls. In the circumstances I am satisfied that if there was any pro rata annual leave owing to Mr Cairnduff the respondent was entitled to deduct from any such amount moneys owing to itself in respect of the wages it had paid Mr Cairnduff to the end of the month, a week’s pay in lieu of notice and moneys owed by the applicant in respect of personal mobile telephone calls made by him. Allowing for any other offsets that still means that Mr Cairnduff is in debt to the respondent. -- 1 of 2 -- 2 In the circumstances it is clear that there is absolutely no justification for the claim and I propose to dismiss the application as being without foundation or merit. The Commission determines and orders accordingly.”. Dated 1 August 2005. By the Commission, [L.S.] G.D. SAVILL, Industrial Registrar. Released: 1 August 2005 Appearances: No appearance by the applicant. Mr R. Bolton, for the Respondent. Government Printer, Queensland The State of Queensland 2005. -- 2 of 2 --