Technician wins $20k from reseller in unpaid leave case

Western Sydney IT company Australia Wide Computer Resources (AWCR) has lost a Federal Circuit Court case against a former employee seeking payment of leave entitlements.

Marian Matus, now owner of Sydney's northern beaches-based Magic Touch IT Services, had worked at AWCR for over nine years. He claimed that accrued annual leave was owed to him but not paid out upon his termination in 2012.

According to the judgment papers, Matus and AWCR had a complex employment history.

The North Rocks provider originally brought Matus to Australia in 2003 from the Slovak Republic on a sponsored 457 temporary skilled worker visa to fill the position of IT technician. The two parties signed an employment contract in 2004 that was meant to provide a regular salary and holidays.

"The applicant [Matus] claims that he was not given a copy of the employment contract and that the respondent [AWCR] indicated to him that the contract was for 'visa purposes only'… and that he 'would not be paid as fixed weekly/annual salary' but would 'be paid per fieldwork/job hours'," wrote Judge Nick Nicholls.

Matus claimed that he was then verbally offered a "pieceworker's rate" of $40 per hour, which he accepted. During the period of this verbal agreement, Matus took periods of unpaid leave for holidays.

In response to Matus' claims, AWCR said that "actual payments" to the former staffer well exceeded "contractual requirements" and that there was an "implied agreement" that the higher pay equated to "payment for his leave entitlements". All up, the company claimed that Matus was paid "approximately $135,000 in excess of his contractual obligations".

AWCR and company director Ron Browne also denied saying to his former employee that the 2004 contract was 'for visa purposes only'.

A new written contract consisting of a base salary of $40,000 and "reduced job rate" of $35 per hour was then signed in 2008. There were disputes about unpaid leave entitlements during this period also, with Matus alleging that his "records were amended" in the payroll system.

AWCR made counter-accusations that the former employee went on unauthorised absences and that a tracking system showed days when work was available but "zero jobs were completed".

In 2012, Matus' employment was terminated with two weeks of severance pay, with further disagreement on entitlements. The judgment said that pro-rated long service leave was withheld by AWCR on the basis of allegations that the employee engaged in "serious and wilful misconduct". This portion was later paid out by AWCR after receiving advice that misconduct is difficult to prove.

Judge Nicholls made his decision after reviewing the findings from a Fair Work Ombudsman enquiry.

"The matter was 'investigated' by the Fair Work Ombudsman who found that the respondents had contravened their obligations under the Fair Work Act and owed the applicant $21,632.72 in unpaid leave entitlements," said Judge Nicholls in his judgment.

Nicholls ordered AWCR to pay $20,000 to Matus, the maximum amount allowed in small claims proceedings, while dismissing a direct claim against Browne.

CRN contacted both Matus and AWCR director Ron Browne but had not received a response from either party at the time of writing.