Hare v Pitcher [2008] NFSC 2

SUPREME COURT OF NORFOLK ISLAND

Hare v Pitcher [2008] NFSC 2

EMPLOYMENT – appeal from decision of Employment Tribunal – appellant employee claimed respondent employer had not paid entitlements in accordance with employment contract and minimum statutory requirements – Tribunal erred in finding entitlements were included in ordinary rate of pay, and in finding entitlements were paid at or in excess of agreement – appeal allowed Employment Act 1988 (NI) ss 11, 12, 15, 16, 17 RICHARD BOWES HARE v DAVID KENDAL PITCHER SC 1 OF 2007

JACOBSON ACJ

3 JULY 2008

SYDNEY IN THE SUPREME COURT OF NORFOLK ISLAND

SC 1 OF 2007

ON APPEAL FROM THE EMPLOYMENT TRIBUNAL CONSTITUTED BY MAGISTRATES K SMITH, A F BUFFETT AND E SANDERS

BETWEEN: RICHARD BOWES HARE

Appellant

AND: DAVID KENDAL PITCHER

Respondent

JUDGE: JACOBSON ACJ DATE OF ORDER: 3 JULY 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed. 2. The decision of the Employment Tribunal be set aside. 3. The respondent pay the appellant the sum of $3,029.86 for outstanding entitlements. 4. The respondent pay the costs of the appellant limited to any disbursements reasonably incurred in the conduct of the appeal.

IN THE SUPREME COURT OF NORFOLK ISLAND

SC 1 OF 2007

ON APPEAL FROM THE EMPLOYMENT TRIBUNAL CONSTITUTED BY MAGISTRATES K SMITH, A F BUFFETT AND E SANDERS

BETWEEN: RICHARD BOWES HARE

Appellant

AND: DAVID KENDAL PITCHER

Respondent

JUDGE: JACOBSON ACJ

DATE: 3 JULY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction

1 This is an appeal from a decision of the Employment Tribunal dated 31 January 2007. 2 The appellant, Mr Hare, was employed by the respondent, Mr Pitcher for a period of approximately three years from September 2003. Mr Hare claimed his leave entitlements were incorrectly calculated. The Tribunal held, however, that: The decision of the Tribunal is that the contract between the applicant and the respondent is valid. In accordance with the contract, the applicant was paid at or at more than the agreed rate for work performed and that rate included his entitlements. 3 Mr Hare appeals from the whole of the Tribunal's determination. 4 The Notice of Appeal sets out five grounds of appeal, but the appellant makes two main contentions. First, Mr Hare submits that the Tribunal erred in finding that his rate of pay included his entitlements. Second, the appellant submits the Tribunal erred in finding that the appellant was paid at or more than the agreed rate for work performed.