Cox v O’Dea [2001] QIRC 109 (2001) 167 QGIG 303

27 July, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 303 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – application for unpaid wages David Francis Cox AND Louise Elsie O’Dea (No. W223 of 2000) COMMISSIONER BROWN 19 July 2001 DECISION David Francis Cox of the Department of Industrial Relations (the applicant) lodged an application for recovery of wages on behalf of Robyn Jean Schmidt (RS) against Louise Elsie O’Dea (the respondent). Specifically the application sought an order that the respondent pay $15,874.29 to RS. The evidence showed that RS was employed, on a casual basis, by G & L Catering – the business name used by the partnership between Gregory Tuckey and the respondent – at Origins Bistro located at the Runaway Bay Junior Leagues Club from 15 April 1996 to 17 April 1998. -- 1 of 2 -- 304 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 27 July, 2001 The work of RS was governed by the Clubs Etc Employees’ Award – South East Queensland. RS was eligible to be paid at Level 2 under the classification structure of that Award. The respondent conceded that money was owing to RS as a result of the incorrect wage Level being applied but disputed the total number of hours worked and the days of the week upon which RS claimed to have worked. In essence RS claimed to have regularly worked Wednesday to Sunday each week. RS claimed in evidence that she maintained dairies (EX 9) in which she recorded details of the days and hours worked and the payment received. These dairies, with the exception of some periods for which no entry was made, supported the claims of RS. The respondent on the other hand claimed that RS worked Monday to Friday without exception. That RS worked for 20 hours per week at the start of her employment increasing to 25 soon after. Time and wages records submitted by the respondent (Ex 7) were signed by RS as having received wages. These records however did not display any information regarding the days worked or the hours worked each day, merely a total number of hours weekly. RS and the respondent both acknowledged that time sheets were completed by RS that did record the days worked and the starting and finishing times. When questioned regarding these time sheets the respondent was uncertain of their whereabouts and not able to produce them. Predictably, both the respondent and RS claimed that the time sheets would have supported their version of events had they been available. The evidence of Ms D. P. Carrol (inspector DIR) was that the claim was constructed using the information contained in RS’s dairies and for the times that dairy entries were not made, by reference to the respondent’s time and wages records. RS’s evidence was that she regularly worked more than 25 hours per week and that the hours in excess of 25 were paid cash in hand. These payments, it was submitted, have now been declared to the taxation authorities and the situation is being addressed. The respondent denies ever having paid cash in hand. However, while the wage records show that predominantly RS worked 25 or less hours per week, the respondent’s witness statement at paragraph 6 states:– “Robyn Schmidt worked approximately 11am to 1pm and 6pm to 9pm Monday to Friday each week.”. RS was never paid in excess of 25 per week. As already noted the time and wages records showed no starting or ceasing times or days worked. Having regard to the evidence of both parties I have concluded that the time and wages records presented as Ex 7 are not reliable. I am now left to consider the reliability of the records presented in Ex 7 and the dairies of RS. RS’s claim that she recorded the details of days and hours worked in her dairies withstood cross-examination and, it is my view, the dairies can be relied upon particularly noting the absence of any hard evidence to the contrary. In light of the foregoing , I find that unpaid wages are owed to RS. In determining the amount of such underpayment I am obliged to take into account the cash bonuses paid to RS as detailed at paragraph 10 of Ex 12 and not contested during the hearing. I am further satisfied that the method used in the calculation of the amount is sound. The Commission orders that Louise Elsie O’Dea pay the amount of $15,424.29 to Robyn Jean Schmidt within 22 days of the date of release of this decision. D. K. BROWN, Commissioner. Released: 19 July 2001 Appearances:– Mr D.F. Cox for the Department of Industrial Relations. Ms L. E. O’Dea for the respondent. -- 2 of 2 --