Ceccato v Almona [2007] NSWIRComm 318

Ceccato v Almona [2007] NSWIRComm 318

The Court preferred the applicant's evidence to that of Mr Constantine. The respondent's inadequate records and inconsistent evidence did not establish that the applicant was paid annual leave for the disputed periods or paid in lieu of annual leave after 1985. The respondent was credited only for five weeks paid annual leave taken and 12 weeks paid in lieu in 1983 to 1985, leaving 73 weeks payable. The post-termination weekly payments were not appropriated or identified at the time as long service leave and could not later be re-characterised to set off the applicant's statutory long service leave entitlement.

Jurisdiction
Australia
Judgment Date
18 December 2007
Procedural Posture
Application for Recovery of Money Pursuant to S 365 of the Industrial Relations Act 1996 / Judgment
Outcome
Application allowed; orders made for payment of accrued annual leave, accrued long service leave, and interest; costs reserved.
Legal Topics
['annual Leave' 'long Service Leave' 'recovery of Unpaid Employment Entitlements' 'set Off' 'employer Record Keeping']
['industrial Law' 'employment Law'] ['annual Leave' 'long Service Leave' 'recovery of Unpaid Employment Entitlements' 'set Off' 'employer Record Keeping']

Case Brief

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Procedural Posture

Application for Recovery of Money Pursuant to S 365 of the Industrial Relations Act 1996 / Judgment

Legal Issues

  1. 1 ['What annual leave was taken by the applicant during his employment with the respondent.' "Whether payments in lieu of annual leave made at Christmas 1983, 1984 and 1985 should be taken into account in determining the applicant's entitlement to annual leave upon termination." 'Whether the respondent continued to pay the applicant in lieu of annual leave after Christmas 1985 to 2003 inclusive.' 'Whether payments made to the applicant after termination of employment in December 2004 could be characterised as payment of an entitlement, including long service leave.']

Ratio Decidendi

The Court preferred the applicant's evidence to that of Mr Constantine. The respondent's inadequate records and inconsistent evidence did not establish that the applicant was paid annual leave for the disputed periods or paid in lieu of annual leave after 1985. The respondent was credited only for five weeks paid annual leave taken and 12 weeks paid in lieu in 1983 to 1985, leaving 73 weeks payable. The post-termination weekly payments were not appropriated or identified at the time as long service leave and could not later be re-characterised to set off the applicant's statutory long service leave entitlement.

Court Disposition

Application allowed; orders made for payment of accrued annual leave, accrued long service leave, and interest; costs reserved.

Orders

  • ['The respondent shall pay to the applicant the sum of $106,215 gross, being an amount representing 73 weeks accrued annual leave pursuant to the Annual Holidays Act 1944.' 'The respondent shall pay to the applicant the sum of $27,742.49 gross, in respect of accrued long service leave pursuant to the Long Service...