2 Failing to pay annual leave on termination
261 For each year of service with his or her employer, s 87(1) of the FW Act provides that any employee who is not a casual is entitled to four weeks of paid annual leave or five, relevantly, if the employee is described in a modern award as a shiftworker for the purposes of the National Employment Standards.
262 "Shiftworker" is defined in the Cleaning Services Award as follows:
29.2 Definition of shiftworker
(a) For the purposes of the NES, a shiftworker is an employee:
(i) who works a roster and who, over the roster cycle, may be rostered to work ordinary shifts on any of the seven days of the week; and
(ii) who is regularly rostered to work on Sundays and public holidays.
(b) Where an employee with 12 months' continuous service is engaged for any part of the 12 month period as a shiftworker, that employee must have their annual leave increased by one half day for each month the employee is continuously engaged as a seven day shiftworker, provided that a limit of 10 months in any year will be counted towards the additional leave accrual.
263 The annual leave entitlement accrues progressively during a year of service according to the employee's ordinary hours of work, and accumulates from year to year: s 87(2)). As the note to s 87(2) makes clear, if an employee's employment ends during what would otherwise have been a year of service, the employee accrues paid annual leave up until then.
264 Section 90(2) of the FW Act states that:
If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.
265 The elements of this contravention, then, are that:
(1) the employee has an entitlement to annual leave;
(2) the employment of the employee has ended;
(3) at that time the employee has a period of untaken annual leave; and
(4) the employer (GPS) has failed to pay the amount that would have been payable to the employee had he or she taken that period of leave.
266 In the absence of any evidence from GPS, unless the Ombudsman's own evidence proves that an employee is a casual, the employees in question are either full-time or part-time employees (see [390] and are entitled to annual leave.
267 The Ombudsman submitted that the evidence shows that the employment of 48 employees came to an end at a time when they had accrued annual leave but were not paid the requisite amounts. Those employees (in alphabetical order) were: Alfonso Alcuitas, Jessica Alvarado Palma, Abraham Arguello, Paul Bacon, Wendy Bong, Juliana Botero Hernandez, Angela Bustos Alvarado, Mariana De Queiroz, Marco Diaz, Rangana Dissanayake, Barry Dowling, Aisling Dunn, Fawaz El Rahman, Andrea Grigoletto, Marissa Hall, Moona Hasan, Alyson Hellyer, Freddy Herrera, Fiona Holland, Michael Kallee, Khaga Kandel, Bibek Luitel, Robin Malla, Charles Mascarenhas, Tammy May, Christine Meager, Jainil Modi, Kian Mu, Giang Ngo, Jose Pena, Barbara Piper, Anna Plows, Tuula Rintala, Linda Robinson, Paul Saint James, Sumit Salhotra, Lara Satchell, Md Shamsuzzoha, Baljinder Singh, Dianne Sjoberg, Cheryl Sorrell, Thomas Sung Hong, Tui Tane, Xiao Teng, Sekson Thinathin, Tashi Wangchuck, Robert Wilkey, and Wen Yang.
268 The Ombudsman has proved the contravention in relation to 32 employees, being: Alfonso Alcuitas, Abraham Arguello, Paul Bacon, Juliana Botero Hernandez, Mariana De Queiroz, Rangana Dissanayake, Barry Dowling, Fawaz El Rahman, Marissa Hall, Freddy Herrera, Fiona Holland, Michael Kallee, Bibek Luitel, Charles Mascarenhas, Tammy May, Christine Meager, Kian Mu, Jose Pena, Barbara Piper, Tuula Rintala, Linda Robinson, Sumit Salhotra, Baljinder Singh, Dianne Sjoberg, Cheryl Sorrell, Thomas Sung Hong, Tui Tane, Xiao Teng, Sekson Thinathin, Tashi Wangchuck, Robert Wilkey and Wen Yang.
269 However, she has not proved the contravention in relation to the following 16 employees: Jessica Alvarado Palma, Wendy Bong, Angela Bustos Alvarado, Marco Diaz, Aisling Dunn, Andrea Grigoletto, Moona Hasan, Alyson Hellyer, Khaga Kandel, Robin Malla, Jainil Modi, Giang Ngo, Anna Plows, Paul Saint James, Lara Satchell and Md Shamsuzzoha.
270 Alfonso Alcuitas deposed that he received a written offer of employment from RPEP Holdings on or around 28 June 2011. He did not say precisely when he started work. The first of the pay slips annexed to his affidavit is for the period 15-29 June 2011, but his Praxeo records begin at 28 June 2011. In any event, he said that his last day of work was 17 September 2012 so his employment spanned at least from the end of June 2011 until that date. He said that he never took any annual leave. He also said that he never received any money for the last four weeks of his work or any money in respect of untaken annual leave or annual leave loading on termination of his employment. I infer from this evidence that he was not paid at all after the end of his employment, including any money in respect of untaken annual leave. Accordingly, I find that GPS contravened s 90(2) of the Act in his case.
271 Abraham Arguello worked for GPS from October 2010 until 14 September 2013. He said that he "knew" he had annual leave owing to him when his employment was terminated and that he did not receive any payments at all from GPS when his employment was terminated. In the absence of any challenge to this evidence or evidence to the contrary, I accept what he said. The contravention is proved in his case.
272 Paul Bacon's began working for GPS in late January 2009. Mr Bacon did not say that he had not taken annual leave. What he said was that on 23 November 2012 he told Ms Voytenko that he would like to take annual leave as he had never taken any before. The most likely reason he said that to Ms Voytenko is that it was true.
273 By November 2012 Mr Bacon had worked for three years and nine months. He had therefore accrued at least 15 weeks of untaken annual leave. On 7 December 2012 he said that he began a period of annual leave but he also said that he ended up acceding to a request by Enrico to work that day. His evidence from this point on is unclear. He said that he decided not to return to work at GPS on 18 January 2013, but it is not obvious from his evidence whether he worked between 8 December 2012 and 18 January 2013 or whether he was on annual leave during that time. In either case, excluding weekends and public holidays (Christmas Day, Boxing Day and New Year's Day), there were only 26 work days between those dates, so even if he took annual leave for the full period from 8 December until 18 January he still had at least seven days of accrued annual leave at the time his employment ended. The effect of the evidence at paras 68-84 of his affidavit, however, supported by the bank statement exhibited to it, is that he was not paid at all by GPS after 6 December 2012. He was not, therefore, paid anything at all at the end of his employment. Accordingly, I find that GPS contravened s 90(2) of the Act in his case.
274 Wendy Bong started working for GPS "on or around" 1 February 2013. He was engaged to work Monday to Saturday. He said he worked for nine days in total, the last of which was 13 February. There were two Sundays in the period, leaving two days unaccounted for. The only evidence he gave in relation to annual leave was that he did not receive any payment "by way of untaken annual leave" or payment of accrued annual leave. Indeed, he said that he did not receive any payment at all either during or after his employment, nor did he receive any pay slips.
275 The difficulty for the Ombudsman is that Mr Bong did not give evidence to indicate that he was entitled to annual leave on termination. The only reason he would have such an entitlement is if he had any accrued but untaken annual leave at the time of termination. In the absence of evidence of how much, if any, annual leave he took, there is no basis for concluding that he had an entitlement to payment of accrued but untaken annual leave on termination.
276 Accordingly, I am not satisfied that GPS contravened s 90(2) of the Act in his case.
277 Mariana De Queiroz started work with GPS on 7 February 2012 and resigned on 6 October 2012. She said that she took a week of annual leave. Yet between 7 February 2012 and 6 October 2012 she would have accrued more than two and a half weeks of annual leave. I am therefore satisfied that she had a period of accrued, untaken annual leave at the end of her employment. The effect of her evidence at paras 44-55 of her affidavit is that she did not receive any payment from GPS after at least 21 September 2012. Accordingly, I find that GPS also contravened s 90(2) of the Act in her case.
278 Marco Diaz worked for GPS from 11 December 2012 until 5 April 2013. His affidavit is silent on the question of annual leave. The Ombudsman relied only on a statement in his affidavit (at [103]) that he had not received any payments from either National Contractors or GPS since a payment made on 10 April 2013. Earlier in his affidavit (at [92]) he had said that the 10 April payment was for the sum of $675. I was not referred to any pay slip or other document that might have disclosed how that sum was made up. For all I know, it could have included a payment in respect of annual leave. Accordingly, I am not satisfied that the Ombudsman has proved that GPS contravened s 90(2) in his case.
279 Rangana Dissanayake worked for GPS from about 17 May 2011 until 28 October 2011. He worked seven nights per week, including public holidays, so he was a shiftworker within the meaning of that term in the award, entitled to five weeks annual leave per year. The Ombudsman relied on a bare statement by Mr Dissanayake that he did not receive any payment for accrued annual leave on termination, but again the basis for the statement is not apparent. Mr Dissanayake gave no evidence about whether he took any annual leave or, if so, how much. His Praxeo records show him working every day for the period they cover, but they only begin on 1 July 2011 - two weeks after he started work. In the more than five months that he worked, however, he was entitled to more than two weeks of annual leave. It is highly unlikely, if not inconceivable, that Mr Dissanayake would have taken annual leave in the first two weeks of his employment. Even if he had, however, he would still have accrued more annual leave than he took before his employment ended. He said that he did not receive any payment at all on termination. Consequently, I find that GPS contravened s 90(2) in respect of Mr Dissanayake.
280 Barry Dowling worked for GPS from the beginning of March 2010 until 10 April 2013. He regularly worked seven days each week, including on public holidays. Thus, he, too, was a shiftworker, entitled to five weeks' annual leave per year. The "beginning of March" is vague, but even working conservatively with a start date of 14 March, he would have accrued a total of just over 15 weeks' annual leave during the term of his employment.
281 Mr Dowling said that he took the following periods of annual leave:
26 December 2010 - 1 January 2011 (one week);
22 April - 5 May 2011 (13 days);
26 December 2011 - 8 January 2012 (two weeks); and
5-12 September 2012 (one week).
282 This is a total of almost six weeks.
283 It follows that at the time his employment ended Mr Dowling had at least nine weeks of accrued untaken annual leave. He deposed that he did not receive "any payment in lieu of notice or a payment of accrued annual leave" and that, although he called GPS after termination in an attempt to recover his accrued entitlements, his calls went unanswered. The inference is that he was not paid in respect of his accrued annual leave. In the absence of evidence from GPS to the contrary, I am satisfied that he had accrued untaken annual leave when his employment ended and that the Ombudsman has discharged her onus of proof in his case.
284 Aisling Dunn started at GPS on 4 March 2013 and worked for the company until 19 April 2013. She said that after 19 April 2013 she did not receive any outstanding salary, sick leave for the days she was unwell, or accrued annual leave. The effect of her evidence from paras 106-113 is that she was not paid at all after 26 March 2013. The remaining question is whether she had any accrued, untaken annual leave at that time. In her affidavit Ms Dunn made no mention of taking or not taking annual leave. There are no Praxeo records for her. The Ombudsman relied on Ms Hurrell's calculations but again the basis for the calculations is obscure. It follows that the evidence is insufficient to discharge the Ombudsman's onus of proof in her case.
285 Fawaz El Rahman worked for GPS from about 1 August 2011 until 19 December 2011. The only reference to annual leave in his affidavit is that he "never received payment for annual leave that [he] accrued, but did not take, on termination of employment". His Praxeo records, however, reveal that he worked every day between and including 1 August 2011 and 19 December 2011, except for the first weekend in that period (6 and 7 August), 21 August, and Wednesday 7 - Friday 9 December. The exception of the initial weekend is explained by Mr El Rahman's evidence that he began the job working only Monday to Friday. There is no direct explanation for the gap in work on 21 August and between 7 and 9 December. But if those four days were annual leave, he would still have had accrued untaken annual leave at the end of his employment because, in the four months and 19 days of his employment, he would have accrued well over a week of annual leave, even at an accrual rate of four weeks per annum. He said that he had not been paid for his work by GPS since 29 November 2011, so he could not have been paid in respect of whatever amount of leave he had accrued at the end of his employment. Accordingly, I find that GPS contravened s 90(2) of the Act in his case.
286 Andrea Grigoletto deposed that he worked for GPS from around January 2013 until around 5 April 2013. He said that he usually worked Mondays through Fridays but occasionally also weekends. The only reference to annual leave in his affidavit is that he was "never paid anything like annual leave". The statement is ambiguous. It could refer to payments for annual leave taken or to untaken accrued annual leave on termination, which is the relevant question here. There are no Praxeo records for Mr Grigoletto. The only other evidence upon which the Ombudsman relied is the Hurrell calculations, which are based on an assumption that no annual leave was taken but do not set out the basis for that assumption. Accordingly, a contravention in his case has not been proved.
287 Marissa Hall deposed that she worked for GPS from 18 March 2013 until 12 April 2013. She said that she did not take any leave and that she was not paid by GPS at all. Accordingly, I find that in her case GPS contravened s 90(2) of the Act.
288 Moona Hasan said that she commenced work on either 5 or 6 February 2013. Her last day of work was 26 March 2013. The only evidence she gave concerning annual leave is that she did not receive payment of accrued annual leave or annual leave loading on termination. But in the absence of evidence of the leave she took or did not take, there is no evidence that she had any period of untaken annual leave at the end of her employment. Ms Hurrell's calculations suffer from the usual flaw and there are no Praxeo records for this employee. Consequently, I am not satisfied that GPS has contravened s 90(2) in Ms Hasan's case.
289 Freddy Herrera deposed that he was asked to meet Rosalie Thomas of GPS at a bowling club at 9.00pm on 8 September 2010 to start work. He said that he did as he was asked and agreed to start work that night. He did not expressly say that he then started work, but I infer that he did. He said that his employment came to an end on 8 March 2013 and that he did not take any annual leave during his employment with GPS. He therefore had a considerable amount of untaken annual leave accrued at the time his employment came to an end. He said that he did not receive any payment from GPS at all after 4 January 2013. Accordingly, I find that GPS contravened s 90(2) of the Act in his case.
290 Fiona Holland started work with GPS on 9 May 2012. Her employment ended on 19 July 2012, following her resignation by email on 29 June. She said that she did not take any annual leave, so all that she had accrued remained untaken on 19 July. The last payment she received was five days before the end of her employment, on 14 July. Accordingly, I find that GPS contravened s 90(2) of the Act in her case.
291 Khaga Kandel worked for GPS from 15 March 2013 until 19 April 2013. His affidavit contains the usual bare assertion regarding non-payment of his untaken leave on termination, but again that says nothing about whether he had any accrued leave at that time. There are no Praxeo records for him. Again, the Ombudsman relied on the calculations annexed to Ms Hurrell's affidavit but the assumptions upon which they are based are not apparent, let alone proved. There is no way of knowing how much, if any, annual leave Mr Kandel had accrued but not taken at the end of his employment. Consequently, I am not satisfied that a contravention of s 90(2) occurred in his case.
292 Bibek Luitel worked for GPS from 9 May 2012 to 24 May 2012 inclusive. He said that he did not take any annual leave, so the small amount of leave that he accrued in that period remained untaken at the time his employment ended. Annexed to his affidavit is a bank statement, which records a payment from "REGGIO INVESTMEN" of $507.57 on 18 May 2012. He said that this was the only payment he received. Consequently, I conclude that he had untaken accrued annual leave at the time his employment ended for which he was not paid and that GPS therefore contravened s 90(2) of the Act in his case, too.
293 Robin Malla deposed that he worked for GPS from 10 April 2012 until 27 February 2013 and that he did not "receive any amount for accrued annual leave … upon termination". But he said nothing about whether or not he took annual leave. It is therefore impossible to know if he had any untaken annual leave at that time. The only other evidence the Ombudsman pointed to is the Hurrell calculations, which again appear to assume that no annual leave was taken without explaining the basis for that assumption. The Ombudsman did not refer the Court to any other evidence. Consequently, I am not satisfied that GPS has contravened s 90(2) in Mr Malla's case.
294 Charles Mascarenhas attended an interview with Ms Voytenko on 14 March 2013, during which he agreed to start work that day. He said that he generally worked five days a week until he resigned on 6 May 2013. He did not mention taking any leave but he did say that he was never told "whether [he] would get annual leave entitlements". It is unlikely that he took annual leave without knowing whether he would be paid, so I infer that he did not take any annual leave during his employment. He said that he had not been paid by GPS "for any unused annual leave entitlements". I accept his evidence. I find that GPS contravened s 90(2) in his case.
295 Tammy May started work for GPS at or around the end of August 2010 and continued working until 22 January 2013. She said that throughout her employment she worked seven days a week, including, on occasions, public holidays. She was therefore a shiftworker under the award and was entitled to five weeks' annual leave per year. In a discrete part of her affidavit dealing with "leave" she stated that she attempted to take annual leave from 1 August-14 August 2011 but acceded to a request to return to work for the last three days of the period. She did not mention taking any other period of annual leave. I infer that the period she mentions is the only period she took. It follows that I also infer that she had accrued a considerable amount of untaken leave when her employment ended. She said that she did not receive any money at all from GPS after 17 January 2013, five days before her employment was terminated. Accordingly, I find that GPS contravened s 90(2) of the Act in her case.
296 Christine Meager worked from 27 November until 20 December 2012. She said that she never took any annual leave during her employment and she was never paid for any untaken annual leave. Indeed, she said she sent a final "invoice" to Enrico and Rosario requesting payment for work she performed in her last three days of employment, but she received no payment and no response from anyone at GPS. I infer that she received no payment at all after the end of her employment, including for the accrued amount of untaken annual leave. Accordingly, I find that GPS contravened s 90(2) of the Act in her case.
297 Kian (also known as Steve) Mu worked for GPS between 9 September 2010 and 13 January 2012. He worked seven days a week, including public holidays. He was therefore a shiftworker and accrued annual leave at a rate of five weeks per year. He said that he did not take any annual leave during his employment with GPS, so all of it was untaken at the time his employment ended.
298 Mr Mu said that he was paid $1,199.23 on 1 February 2012. As he noted in his affidavit, this corresponds precisely to the amount on a pay slip addressed to him, notionally for the period 26 December 2011 - 1 August 2012, that was produced by Reggio to the Ombudsman and was exhibited to Ms Millington's affidavit. I therefore infer that the payment of 1 February 2012 relates to the period mentioned in the pay slip. As the pay slip makes no mention of any payment in respect of untaken annual leave, I infer that no part of the $1,199.23 is attributable to accrued annual leave entitlements.
299 Mr Mu said that the only other payment he received after the end of his employment was a single payment of $500, which was deposited into his bank account on 2 April 2012. Another pay slip produced by Reggio and exhibited to Ms Millington's affidavit, notionally for the period 9 January 2011 - 1 August 2012, records $500 being paid in respect of "Annual Leave", though, as Mr Mu noted in his affidavit, the description on the bank deposit of $500 was "back pay". Even if the $500 were paid in respect of annual leave, it would be manifestly inadequate to cover the more than six weeks of annual leave which Mr Mu had accrued by the end of his employment. Accordingly, I find that GPS contravened s 90(2) of the Act in his case.
300 Jose Pena worked for GPS from 15 October 2012 until 9 March 2013. He said that he did not take any annual leave in that time and that the last payment he received from National Contractors or GPS was on 22 February 2013 - well before his employment ended. Consequently, I find that he had accrued untaken annual leave entitlements for which he was not paid on termination and GPS contravened s 90(2) of the Act in his case.
301 Barbara Piper began work with GPS on 10 July 2012. Her last day of work was 8 August 2012. She said that in that time she did not take any annual leave. She said that she was not paid at all after 3 August 2012. I am therefore satisfied that she had untaken annual leave entitlements accrued at the time her employment ended, in respect of which she was not paid. Accordingly, I find that GPS contravened s 90(2) of the Act in respect of Ms Piper.
302 Anna Plows worked for GPS from around 3 May 2012 until 31 January 2013. She said that she worked seven days a week (including public holidays). She was therefore a shiftworker within the meaning of cl 29.2 of the award. During the 39 weeks of her employment, she would have accrued 3.75 weeks' annual leave (being 39/52 x 5 weeks). The effect of her evidence is that she did not receive the wages due on 11 January 2013, nor any pay after that date. It is plain then that, if she had any untaken accrued annual leave at the end of her employment, she was not paid the amounts to which she was entitled. But what is the evidence that she had any untaken annual leave on termination?
303 As with most of the employees who gave evidence, the Ombudsman relied on an assertion in Ms Plows' affidavit that she "did not receive any … payment of accrued annual leave". But that assumes that Ms Plows was entitled to payment of accrued annual leave. That in turn depended on whether she had a period of untaken annual leave. Her affidavit said nothing about whether she took or did not take annual leave.
304 The Praxeo records do not assist. Although Ms Plows said that she usually worked seven days a week, there is no Praxeo entry for 31 May 2012; 19-23 June 2012; every Thursday in July and August 2012; 17, 21, 22 and 24 August 2012; 2, 6, 14-16, 20, 27 and 28 September 2012; 7, 14 and every Thursday in October 2012; 1-4, 14-16, 22-25 and 28-30 November 2012; 6, 7 and 13-30 December 2012; and 2-11, 15-19, 22-25 and 29-31 January 2013. A total of more than 70 days are therefore unaccounted for in the Praxeo records. That is not to say that Ms Plows did not work on those days; indeed she deposed (as did other employees) that the Praxeo system often malfunctioned. It is only to say that the Praxeo records cannot fill the gap in her evidence.
305 The Ombudsman also pointed to the Hurrell calculations. In these Ms Plows' annual leave entitlement is apparently calculated on the assumption that she did not take any annual leave during her employment, but, once again, the foundation for the assumption is obscure. The calculations can therefore be given no weight.
306 Accordingly, in the case of Ms Plows, I am not satisfied that the allegation is made out.
307 Linda Robinson said that she worked for "Reggio" from 1 December 2011 until 16 March 2012. She said that during that time she took no annual leave and did not receive any payment for her untaken annual leave. In the absence of any evidence to the contrary, I am satisfied that GPS contravened s 90(2) of the Act in her case, too.
308 Lara Satchell's affidavit contained an assertion that she was not paid accrued annual leave on termination, but she gave no evidence that would enable the inference to be drawn that she had accrued untaken leave at that time. She did not say whether she had or had not taken annual leave. There are no Praxeo records for her and the calculations annexed to Ms Hurrell's affidavit do not assist. The Court was not referred to any other evidence. Thus, in her case, I am not satisfied that GPS has contravened s 90(2).
309 In the case of Md Shamsuzzoha, the Ombudsman relied only on paras 49-65 of his affidavit and the Hurrell calculations. The paragraphs in question do not mention annual leave. Indeed, there is no reference to annual leave anywhere in his affidavit. Mr Shamsuzzoha did produce a pay slip which did not refer to a payment for annual leave (only wages) but that was for a period before his employment came to an end. Without evidence of whether Mr Shamsuzzoha had any period of accrued annual leave when his employment concluded, I am unable to say whether or not GPS contravened s 90(2). The Ombudsman has not discharged her burden of proof.
310 Dianne Sjoberg worked for GPS from about 17 January 2011 until 5 February 2012, during which time she took no annual leave. She said that she did not receive payment of accrued annual leave on termination. In these circumstances, in the absence of any evidence to the contrary, I am satisfied that at the time her employment ended she had untaken annual leave for which she was not paid. Consequently, I am satisfied that GPS contravened s 90(2) of the Act in her case.
311 Cheryl Sorrell worked for GPS from about 31 January 2011 until about 3 February 2012. During that time she said she did not take any annual leave, so any leave she accrued remained untaken at the end of her employment. Ms Sorrell said that she was not paid any money by GPS at all after her employment ended. Accordingly, I find that at the time of termination she had untaken annual leave for which she was not paid and that GPS contravened s 90(2) of the Act in her case, as well.
312 Thomas Sung Hong worked for GPS from 4 January 2010 until about early November 2013. He said that he worked the same hours each week and that he did not take any annual leave until 10 October 2013, when he took four weeks' leave. After two years and nine months of work, however, Mr Hong accrued a total entitlement of well over ten weeks' leave. He said he did not receive any payment at all following the end of his employment. Accordingly, I find that he had accrued untaken annual leave at that time and that GPS contravened s 90(2) of the Act in his case, too.
313 Tui Tane was employed by GPS from 18 November 2011 until 5 February 2012. She said that she did not take any annual leave during that time. She also said that she "did not receive any payment for [her] untaken annual leave". In the absence of evidence to the contrary, I am satisfied that she had a period of untaken paid annual leave at the time her employment ended. Consequently, I find that GPS contravened s 117(2) in her case too.
314 Xiao Teng worked from 17 September until 16 November 2012. She was employed to work broken shifts totalling about eight hours a day. She said that she usually worked five days a week from Monday to Friday and occasionally Saturday or Sunday. She accrued just under three days' annual leave, being an annual entitlement of four weeks' leave pro-rated to her almost two month period of work. She said that she did not take any annual leave during her employment. She also said that she was not paid at all after 5 November 2012, signifying that she was not paid anything at the end of her employment. Accordingly, I find that she had accrued untaken annual leave at that time and that GPS contravened s 90(2) of the Act in her case.
315 Sekson Thinathin began work on around 13 January 2011. His last shift was on 2 December 2011. He said that he was "never paid sick pay or annual leave or anything like that", but that could mean that he took annual leave for which he was not paid. He said: "I was not paid for my accrued but untaken annual leave on the termination of my employment". By saying "my accrued but untaken leave", he implies that he had accrued leave at the relevant time. His Praxeo records show him working every day between 17 January and 2 December 2011. That means he did not take any annual leave at least during that period. He therefore must have had an untaken amount accrued at the end of his employment. He said that he "was not paid for [his] work between 13 November 2011 and 2 December 2011 and [he] still [has] not been paid for that work". I infer from this, if it does not necessarily follow from what he said, that he was not paid any money at all after 13 November 2011. Accordingly, I find that he had untaken annual leave at the end of his employment for which he was not paid and therefore that GPS contravened s 90(2) of the Act in his case.
316 Tashi Wangchuck deposed that she worked for GPS from 3-31 July 2012. She said that she did not take any annual leave during her employment. Such leave as she had accrued therefore remained untaken at the time her employment ended. She said that she was not paid after 16 July. Accordingly, I find that GPS contravened s 90(2) of the Act in her case.
317 Robert Wilkey began work on around 15 March 2011. After having been refused permission to take annual leave over Christmas 2011, he made a second application in May 2012. This time his request was granted and he was off work from 6-19 May 2012. His employment with GPS ended on 25 July 2012 and the effect of his evidence from paras 56-74 of his affidavit is that the 6-19 May period was the only leave he took. Having worked for GPS for more than 13 months, he had accrued more than 4.5 weeks of annual leave. Much of this was therefore owing at the time his employment ended. He said, and I find, that he did not receive any payment of accrued annual leave on termination. The contravention is proved in his case.
318 Wen Yang deposed that he worked for GPS for four weeks and was not paid at all. An email annexed to his affidavit, which he adopted in the body of his affidavit as a true statement of the days and hours he worked, shows that he worked every week day between 17 September and 13 October 2012 except Monday 1 October 2012, though he worked the Saturday of that week. He therefore cannot have taken more than one day of annual leave, so at least some of the approximately 1.6 days of leave he accrued during the short time he worked for GPS remained untaken at the time his employment ended. As he was not paid at all he cannot have been paid in respect of his untaken annual leave. Accordingly, I find that upon termination he had accrued untaken annual leave for which he was not paid and that GPS contravened s 90(2) of the Act in respect of Mr Yang.
319 Giang Ngo worked for GPS from 19 February 2013 until 8 March 2013 and received no payment at all. He said that he never "had any discussion with anyone at GPS about annual leave". I infer from this statement and the relatively short period of his employment, that he did not take any. But I am not satisfied that he was entitled to annual leave. That is because I am not satisfied that he was a part-time worker. Mr Ngo deposed that his hours varied from day to day. To the extent that his affidavit includes his actual hours of work, it bears out this characterisation. Mr Ngo did not say that he was engaged to work on any other basis. I therefore find that he was a casual, not a part-time employee.
320 I now turn to the employees who did not give evidence.
321 In the case of Angela Bustos Alvarado, the Ombudsman referred to two emails Ms Bustos sent to GPS in the early hours of 10 January 2013. The first was sent to Mr Modi. It stated:
I'm surprised that i haven't gotten my pay for the weeks that I worked on December I don't know if u are not going to pay me or what happened??
322 The second was sent a few minutes later to Ms Voytenko, stating:
I would like to ask u what happened with my pay that I should receive on the 28th of december ??? I just email jay asking him about my pay as well …
323 The Ombudsman also referred to two notices to produce issued to GPS and National Contractors respectively, on 13 January 2014. The notice to GPS relevantly required the production of:
6. Complete and legible copies of all records and documents that evidence all payments made to [Ms Bustos, among others] including but not limited to payslips, pay advice, statements, cheques, bank statements or otherwise described documents for the period 1 July 2011 to present.
7. Complete and legible copies of records and documents evidencing leave records including annual leave and personal leave accrued, credited, taken, cashed out, or paid out after termination of employment for the entire employment period of [Ms Bustos, among others] for the period of 1 July 2011 to present.
324 The notice to National Contractors was similar but called for documents from "1 August 2012 to present".
325 On the basis that no documents in these categories were produced in relation to Ms Bustos, the Ombudsman asked that the inference be drawn "that [Ms Bustos] did not receive any payment for accrued annual leave on termination as she did not receive any payment from [GPS] following the termination of her employment".
326 But the only inference I can draw from the failure of the two companies to produce pay slips is that there were no pay slips to produce. Without more, it does not prove that monies were not paid. The evidence in relation to other employees shows that pay slips were not regularly issued. Indeed, this is the subject of another of the alleged contraventions.
327 It follows that I am unable to find that GPS contravened s 90(2) in Ms Bustos's case.
328 For Juliana Botero Hernandez the Ombudsman referred to a number of the documents appearing behind tab 232 of Ms Millington's affidavit. In the body of the affidavit these are identified only as "documents and records from" Ms Botero. Among these documents is a Workplace Complaint Form in which Ms Botero stated that she was paid "$0.00" by GPS for the 54 hours she worked from 20 March 2013 until 8 April 2013. She also stated that she worked a total of four and a half hours a day in this period in two broken shifts. A document called "Contractor Sign In Register" attached to her complaint form shows her signing in on every week day in that period except for Good Friday (29 March) and Easter Monday (1 April). In these circumstances I am satisfied that Ms Botero did not take annual leave and that GPS therefore contravened s 90(2) by failing to pay her accrued untaken annual leave on termination.
329 Similarly, in his Workplace Complaint Form Baljinder Singh stated that he worked for GPS for four weeks from 1-28 August 2012 and that he received no payment. The Praxeo records show that he worked every day in that period except 6 August. As he worked seven days a week he was a shiftworker within the meaning of the award and accrued annual leave at a rate of five weeks a year. In four weeks of work he would have accrued 0.38 weeks, or, on a seven day per week basis, more than 2.5 days of leave. On the basis of the complaint and the Praxeo records, I am satisfied that he had accrued annual leave on termination for which he was not paid. Consequently, a contravention of s 90(2) is proved in his case.
330 In her Workplace Complaint Form, Jessica Alvarado Palma states that she worked from 20 November 2011 until 18 January 2013. To show that Ms Alvarado had accrued untaken annual leave entitlements at the time her employment ended, the Ombudsman relied on Ms Alvarado's responses to a document entitled "Questions for Notional Employee/Contractor", in which she appears to have ticked "No" in response to the question, "Do you receive leave entitlements?" The following question asks, "If 'yes' to the above, what leave entitlements?" and provides options including "Annual leave", "Personal leave (e.g. sick leave)" and so forth. None of these is ticked on Ms Alvarado's questionnaire. Assuming "do you receive leave entitlements" means "have you received any leave entitlements", the negative response is ambiguous. It might mean that she had accrued leave for which she was not paid. Equally, however, it might mean that she had taken annual leave but had not been paid for it. In theory, at least, it might also mean that she was not paid the requisite leave loading. Without more, the evidence is insufficient to discharge the Ombudsman's onus of proof.
331 The Ombudsman also referred to a number of emails from Ms Alvarado to Ms Voytenko, in which Ms Alvarado complained about not being paid.
332 In one email, dated 18 March 2013, Ms Alvarado complained that she had still not been paid "for [her] work between 10 December 2012 and 18 January 2013". I accept that evidence as far as it goes but without any indication of whether she worked every day during that period or whether she took any annual leave and, if so, how much, I am not satisfied that she had accrued annual leave on termination.
333 There is also a problem with the allegation concerning Jainil Modi.
334 In his case the Ombudsman relied on two documents.
335 One is an untitled document that Ms Millington said Mr Modi gave her during the investigation, which purports to calculate the annual leave he is owed. There is no evidence as to who prepared the document, when it was prepared, or for what purpose it was prepared. As such it has next to no probative value.
336 The other document appears at page 1257 of Exhibit FM-1 to Ms Millington's affidavit. It is not specifically identified either in the evidence or in the submissions, but the Ombudsman cites it in support of the following cryptic proposition: "Leave taken deducted as recorded by the company". Imprinted on the document are the words "National Contractors Pty Ltd" and "File Notes", the date "07.01.13." and the "Client Code" "Jainil Modi". A handwritten note in the body of the document states:
Jay was on holidays from 04.01.13 til (sic) 18.02.13. as previously discussed.
Kristina Voytenko
07.01.13.
337 This note would only prove that Mr Modi took a period of leave, not that he had any period of untaken annual leave. It also says nothing about what, if anything, he was paid at the end of his employment.
338 Consequently, I am not satisfied that GPS contravened s 90(2) of the Act by failing to pay either Ms Alvarado or Mr Modi in respect of accrued untaken annual leave on termination.
339 In relation to Paul Saint James, the Ombudsman relied on emails that Mr Saint James sent to various people at GPS complaining that his wages had not been paid, in order to show that he was not paid at all after his employment ended on 20 December 2012. She also asked the Court to draw adverse inferences from GPS's failure to produce documents in response to notices to produce. But nothing in her submissions or in the evidence to which I was taken touched upon the question of whether Mr Saint James had any accrued annual leave that was untaken at the time his employment ended. I am not satisfied that GPS has contravened s 90(2) in his case.
340 Michael Kallee, Tuula Rintala and Sumit Salhotra are in a different category. The Ombudsman was able to point to admissions made by GPS in respect of each, to the effect that these employees were entitled to payment in respect of accrued annual leave, which payment they did not receive at the end of their employment. In responses to a notice to produce issued by the Ombudsman to Reggio, GPS concedes that none of these employees was paid annual leave.
341 It follows that I am satisfied that GPS contravened s 90(2) of the FW Act in relation to each of these three employees.
342 The Ombudsman did not provide any further submissions in relation to Alyson Hellyer. I am not satisfied that there has been a contravention of the subsection in her case.