Buglar of the Department of Industrial Relations (for Kahl) v Baldwin [2004] QIRC 200 (2004) 177 QGIG 749

10 December, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 749 Released: 24 November 2004 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – power to recover unpaid wages and superannuation contribution etc. Mark Lindsay Buglar of the Department of Industrial Relations (for Brendan Kahl) AND Geoffrey Baldwin (No. W77 of 2004) VICE PRESIDENT LINNANE 24 November 2004 DECISION [1] This is an application under s. 278 of the Industrial Relations Act 1999 (Act) seeking payment of $1,180.00 to Brendan Maurice Kahl (Applicant). The application is made by an Inspector of the Department of Industrial Relations on behalf of the Applicant. The application is made against Geoffrey Baldwin (Respondent) who trades as Zash Hair Design. The amount of $1,180.00 is for two weeks’ pay in lieu of notice. -- 1 of 2 -- 750 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 December, 2004 [2] The matter was originally listed for hearing on 27 October 2004 but was adjourned on 26 October 2004 when the Commission was advised that the Respondent was ill. A notice adjourning the hearing was forwarded to the parties on 26 October 2004. On 29 October 2004 a notice went to the parties which indicated that a conference was to be held in the matter on 22 November 2004. This was an error and the matter should have been listed for hearing. The Respondent did not appear on 22 November 2004 and the matter was adjourned to 24 November 2004. The Respondent again failed to appear today. I am satisfied that the Respondent was made aware of the listings for both 22 November 2004 and 24 November 2004. [3] In addition the notice of listing for 22 November 2004 was sent to The Hairdressing Federation of Queensland –Union of Employers. There was no appearance for that organisation on that date. [4] Exhibit 2 is an Affidavit of Service stipulating that the notice of listing for the hearing on 24 November 2004 was served on the Respondent on 23 November 2004. Additionally the Registrar spoke with the Respondent on two occasions today concerning the hearing of this matter. On the second occasion the Respondent indicated to the Registrar that he may send correspondence to the Registrar regarding the hearing today. A search of the Registry records was conducted prior to this hearing at 12.45 p.m. and that search revealed no communication from the Respondent. [5] I am satisfied that the Respondent was aware of today’s proceedings. In those circumstances I was prepared to hear the matter in the absence of the Respondent. [6] It was the evidence of the Applicant that he was employed by the Respondent during the period 9 October 2003 to 25 October 2003. The Applicant had, however, worked in the same business as and from 10 August 2001. He was originally employed by Wainfield Pty Ltd and then Frazbern Pty Ltd. When the liquidator of Frazbern Pty Ltd sold the business of Zash Hair Design to the Respondent all existing staff, including the Applicant, were offered positions with the Applicant. The Applicant was employed in the same position after 9 October 2003 as he was prior to that date. He was employed as a full-time hairdresser. [7] The Applicant’s hours of duty were 9.00 a.m. to 5.00 p.m. Monday and Wednesday, 10.00 a.m. to 7.00 p.m. Thursdays, 8.30 a.m. to 9.00 p.m. Friday and 8.00 a.m. to 2.00 p.m. on Saturdays. The hours of work were the same each week. The Applicant was paid wages at the base rate of $590.00 gross per week. In addition the Applicant received commission of 15% of sales from $1,001 to $1,499 and then 30% of sales from $1,500 onwards. [8] The evidence of the Applicant is that he resigned his employment with the Respondent by way of correspondence on 25 October 2003 giving the Respondent two weeks’ notice. The Applicant asked the Respondent whether he wanted him to work out his notice and the Respondent replied that he required the Applicant to work out his notice. According to the Applicant, later in that day the Respondent Manager, Lizzie Baldwin, spoke with the Applicant and advised him to finish work that day. [9] The Respondent did not pay the Applicant any payment in lieu of the period of notice given by the Applicant. [10] A Further Directions Order was sent to the parties on or about 25 August 2004. Direction number 6 required the Respondent to file in the Registry statements of evidence from all witnesses to be called and relied upon in the hearing by Monday 11 October 2004. The only material filed on behalf of the Respondent was an Affidavit from Brian Cox, the Manager/Director of The Hairdressing Federation of Queensland – Union of Employers which was filed on 11 October 2004. That Affidavit does not address the issues raised in the Applicant’s evidence. In any event there was no appearance by Mr Cox, the Respondent or any other person on behalf of the Respondent so I have not considered that material. [11] I also have the evidence of Harley David Matchett, an inspector appointed under the Act and employed by the Department of Industrial Relations. Mr Matchett gives evidence of a telephone conversation with the Respondent on 21 January 2004 wherein the Respondent is said to have stated that “he did not know anything about an employer inheriting responsibility for previous employees” and he asked Mr Matchett to forward him correspondence about such obligations. A letter was then sent on 23 January 2004. [12] Mr Matchett also gave evidence of a telephone conversation with the Respondent on 23 February 2004 wherein the Respondent is said to have stated that “he had dismissed the employee Brendan Kahl without giving him notice, but said that as the employee had not mentioned the two weeks’ payment in lieu of notice, he had interpreted that as being mutual agreement by the employee to finish on the spot without notice having to be paid.”. [13] I am satisfied that the Applicant was not paid for the two weeks’ notice that he gave the Respondent. I am further satisfied that the Applicant was entitled to payment of the two weeks’ wages. In the circumstances I order the Respondent to pay the Applicant an amount of $1,180.00 within 22 days of the release of this decision. Order Accordingly. D.M. LINNANE, Vice President. Hearing Details. 2004 24 November Appearances: Mr D. Walker of Department of Industrial Relations, for the Applicant. Released: 24 November 2004 -- 2 of 2 --