Hare v Pitcher [2008] NFSC 2

Hare v Pitcher [2008] NFSC 2

The Tribunal erred because the evidence did not support a finding that both parties agreed the appellant's leave entitlements were included in his hourly rate, and the statutory minimum leave entitlements incorporated into the employment contract had to be calculated by reference to the appellant's ordinary contractual rate of pay or gross earnings, not by reference to a lower rate or the statutory minimum hourly rate. On the correct calculations, the appellant had been underpaid $3,029.86 in outstanding entitlements.

Jurisdiction
Australia
Judgment Date
03 July 2008
Procedural Posture
Employment Appeal / Appeal From Decision of the Employment Tribunal Dated 31 January 2007, Conducted on the Papers
Outcome
Appeal allowed.
Legal Topics
['employment Entitlements' 'annual Leave' 'public Holidays' 'sick Leave' 'ordinary Rate of Pay' 'minimum Statutory Employment Conditions' 'appeal From Employment Tribunal']
['employment Law' 'contract Law'] ['employment Entitlements' 'annual Leave' 'public Holidays' 'sick Leave' 'ordinary Rate of Pay' 'minimum Statutory Employment Conditions' 'appeal From Employment Tribunal']

Case Brief

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Procedural Posture

Employment Appeal / Appeal From Decision of the Employment Tribunal Dated 31 January 2007, Conducted on the Papers

Legal Issues

  1. 1 ["Whether the Employment Tribunal erred in finding that the appellant's hourly rate of pay included his leave entitlements." 'Whether the Employment Tribunal erred in finding that the appellant was paid at or more than the agreed rate for work performed.' "Whether annual leave, public holiday leave and sick leave entitlements were to be calculated by reference to the appellant's ordinary contractual rate of pay rather than a lower rate."]

Ratio Decidendi

The Tribunal erred because the evidence did not support a finding that both parties agreed the appellant's leave entitlements were included in his hourly rate, and the statutory minimum leave entitlements incorporated into the employment contract had to be calculated by reference to the appellant's ordinary contractual rate of pay or gross earnings, not by reference to a lower rate or the statutory minimum hourly rate. On the correct calculations, the appellant had been underpaid $3,029.86 in outstanding entitlements.

Court Disposition

Appeal allowed.

Orders

  • ['The appeal be allowed.' 'The decision of the Employment Tribunal be set aside.' 'The respondent pay the appellant the sum of $3,029.86 for outstanding entitlements.' 'The respondent pay the costs of the appellant limited to any disbursements reasonably incurred in the conduct of the appeal.']