Sheldon J's judgment was subsequently endorsed by the Full Bench in Pacific Publications Pty Ltd v Cantlon (1983) 4 IR 415.
64 Although Mr Constantine said that it was the applicant's responsibility to attend to the keeping of proper wage and salary records, he acknowledged that the applicant was completely untrained in bookkeeping. He oversaw the applicant's work, directed him how to do things and never took any steps to ensure that the records were being kept in accordance with the legislation. The clear obligation under the legislation falls upon the employer in respect of the keeping of proper records.
65 Mr Ceccato's evidence was:
"I was not assigned the task of preparing wages until the early 1990s. I had no training or experience other than what Mr Constantine had shown me. I carried out this task as shown to me by Mr Constantine and in accordance with his wishes. There were no records kept when Mr Constantine prepared the wages and I was not shown how to or directed to keep such records myself."
66 I prefer Mr Ceccato's evidence in determining whether the balance of the 11 weeks (six weeks) was paid, or unpaid annual leave. The wages that Mr Ceccato said he received reflected what was recorded in his bank statements. In respect of the 15 day period in 1999, the respondent asserts that Mr Ceccato was paid annual leave for this period. Mr Ceccato's conceded, during his oral evidence, that he was not sure if he was paid for this period or not. His bank statements during this period show that he was paid. It was common ground that this was the period in 1999 when Mr Ceccato walked out of his job following a dispute with Mr Constantine. Mr Constantine admitted that Mr Ceccato had done this before during disputes and that he had continued to pay Mr Ceccato as an incentive for him to return to work.
67 In J Scott Pty Limited v Stapp (1960) AR 300 at 317 (Taylor P, Cook and Beattie JJ), the Full Bench of the then Industrial Commission considered whether trips made by Mr Stapp with the Chairman of the company on which a limited amount of business was transacted and the expenses for which were paid by the company were annual holidays. Beattie J stated at 317:
... The crux of it, as I see it, is this. The company paid all the expenses incidental to the various trips, which it now seeks to characterize as holidays for Stapp. The expenses were legitimate business outgoings only if they were incurred in the course of the company's business. The company has made its decision on the true character of the trips, by paying the expenses, not only for Stapp but for the Chairman of the company, who presumably was paid for because she was engaged on the company's business. It should not now be permitted to put another character on the excursions. The Magistrate adopted a reasonable and commonsense approach to the matter and his findings should not be disturbed.
68 In my view, there was no agreement reached between the parties for the period that the employee was absent from work in 1999 to be annual leave. It follows that the 15 days should not be considered as paid annual leave. This results in a finding that out of the 11 weeks that Mr Ceccato took annual leave, he was only paid for five weeks.
69 In respect of the balance of four weeks leave (the trips to Hamilton Island, Queensland and Perth), the records of the respondent, such as they are, do not allow me to find that the applicant was paid annual leave. The applicant says he was not paid annual leave for these periods but the respondent says he was paid. This conflict can only be resolved on the bases of credit. For the reasons that I set out in detail at [61] - [62], I prefer the evidence of Mr Ceccato to Mr Constantine. I therefore find that the applicant was not paid annual leave for what amounts to four weeks.
Payments in Lieu of Annual leave
70 The applicant concedes that payments in lieu of annual leave were made at the end of 1983, 1984 and 1985. No annual leave was taken by the applicant during these years. The applicant would have been entitled to 12 weeks annual leave for this period.
71 Mr Constantine's evidence was that Mr Ceccato approached him in 1983, 1984 and 1985 and asked to be paid his holiday pay instead of taking holidays. Mr Ceccato, in his affidavit evidence, agreed that apart from 1983, 1984 and 1985, he had no further conversation with Mr Constantine wherein he agreed to accept money in lieu of annual leave.
72 Ms K Nomchong of counsel, who appeared for the applicant, submitted that payments in lieu of annual leave were void for illegality under s 3(5) of the Annual Holidays Act 1944, contrary to the direct provisions of that Act and did not permit the applicant to enjoy the benefit prescribed by that Act of actually being able to take leave.
73 An analogous set of circumstances were considered by the Full Bench in Payne v Howison (unreported, IRC 5432 of 1996, 26 September 1997, Cahill VP, Hill and Marks JJ). In this case the Full Bench considered whether the recognition of estoppel by conduct as a doctrine operating consistently in law and equity and the prevalence of equity in a Judicature Act system combine to give the whole doctrine a degree of flexibility which it might lack if it were an exclusively common law doctrine. In finding that the doctrine of estoppel should be applied the Full Bench observed the prima facie entitlement to relief based upon the assumed state of affairs will be qualified in a case where such relief would exceed what could be justified by the requirements of good conscience and would be unjust to the estopped party.
74 The Full bench was satisfied that during the course of negotiations and dealings with the appellant, the respondent reached an agreement where in full satisfaction of all and any payments and/or allowances, including statutory entitlements were all included in the remuneration arrangements. The Full Bench held that the respondent should be estopped from denying that amounts paid to him by way of commission were paid in satisfaction and discharge of all and any entitlements which he may have under the award and the Annual Holidays Act. The Full Bench concluded at 24:
It would, in our opinion, be unconscionable to allow the respondent to have earned a substantial amount of remuneration under a system which he demanded from the respondent and under which payments were to satisfy all entitlements which would otherwise be payable to him as an employee and yet still be entitled to claim in addition at a later date a substantial amount by way of entitlement under the award and under the Annual Holidays Act. (at 444-446).
75 I find that the parties came to agreement in 1983, 1984 and 1985 for payments to be made in lieu of annual leave. Applying the principles in Payne v Howison, the applicant should be estopped from claiming that the arrangements or payments in lieu of annual leave between 1983 and 1985 are illegal. The applicant, in my view, agreed to receive the benefit of holiday pay in those years. He cannot change his position now, a position upon which the respondent relied, so that he can in effect receive double his holiday pay for this period. The total amount of payment for annual leave in lieu during this period was 12 weeks and the respondent should be given credit for this payment.
Did the applicant receive Payments in Lieu of Annual Leave between Christmas 1985 and Christmas 2003?
76 The applicant's evidence is that there was no further agreement after 1985 that he would receive a payment in lieu of taking his annual leave. The applicant says he did not receive any such payment from 1986 to 2003. There is no evidence to support such an agreement, apart from Mr Constantine's evidence, which I reject on this aspect of the matter, in preference to that of Mr Ceccato.
77 I have already referred to the evidence given by Mr Constantine at the commencement of his oral evidence in which he altered his affidavit evidence so that payments made during each year from 1986 to 2003, represented 56 equal payments. Mr Constantine's credit was seriously damaged by this evidence for the reasons that I have already stated. Furthermore, the evidence that Mr Ceccato actually took some periods of leave between 1986 and 2003, which is accepted by Mr Constantine and corroborated by the evidence of Mr Kara (a witness called by the applicant), is inconsistent with the applicant being paid in lieu of annual leave, year after year. It is inherently implausible as asserted by Mr Constantine that he paid annual leave for the periods of leave actually taken and also paid Mr Ceccato four weeks in lieu of leave at Christmas each year. Even if such payments in lieu were made, and I find that they were not, such payments would have been at severely reduced rates of pay that the applicant said he was receiving during this period.
78 The applicant's bank statements from June 1983 through to December 2004, are consistent with the applicant's evidence as to the wages received during this period. There are no deposits at all made into his bank accounts for the years 1986 through to 1991, when the applicant says because of cash flow problems that the respondent was experiencing, he only took living expenses. Furthermore, whilst there is substantiation of the lump sum payments for annual leave in lieu for the years 1983, 1984 and 1985 in the applicant's bank statements, there is no similar substantiation in the bank statements for the years 1986 through to December 2004.
79 In light of my findings that Mr Ceccato received 12 weeks annual leave, paid in lieu, together with five weeks paid annual leave, the respondent is entitled to a credit of 17 weeks in respect of annual leave. The result is that Mr Ceccato is entitled to payment for 73 weeks annual leave.
Long Service Leave
80 The matter that requires determination in relation to this aspect of the claim is the proper characterisation of the payments made to the applicant between January to July 2005.
81 The respondent concedes that the applicant was not paid a lump sum for long service upon termination and that this is in breach of s 4(5)(a) of the Long Service Leave Act 1955. However, the respondent contends that it continued to pay the applicant after the date of his termination on 27 December 2004, until about 13 July 2005, an amount of $1,455 gross, totalling $39,285. The respondent submits that the applicant should not be allowed to double dip and that to order the respondent to again pay the applicant long service leave would result in the applicant being unjustly enriched.