2024 WAIRC 00466
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION : 2024 WAIRC 00466

CORAM : INDUSTRIAL MAGISTRATE D. SCADDAN

HEARD : THURSDAY, 27 JUNE 2024

DELIVERED : FRIDAY, 12 JULY 2024

FILE NO. : M 16 OF 2024

BETWEEN : ANNA-MAREE GRACE LADYMAN
CLAIMANT

AND

SAI GROUP OF BUSINESSES PTY LTD T/AS PREMIER HOTEL
RESPONDENT

CatchWords : INDUSTRIAL LAW – Alleged non-payment of pro-rata long service leave entitlement upon termination – Whether the respondent was a ‘transmittee’ within the meaning of s 6(4) of the Long Service Leave Act 1958 (WA) – Whether the claimant was in continuous employment for the purposes of s 8 of the Long Service Leave Act 1958 (WA)
Legislation : Long Service Leave Act 1958 (WA)
Fair Work Act 2009 (Cth)
Industrial Relations Act 1979 (WA)
Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)
Instrument : Hospitality Industry (General) Award 2010
Case(s) referred
to in reasons: : Kieran Cousens v Consolidated Ice Holdings Pty Ltd [2016] WAIRC 305; 96 WAIG 570
Miller v Minister of Pensions [1947] 2 All ER 372
Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27
Result : The claim is proven.
Representation:
Claimant : In person
Respondent : Mr K. Dorairaj (Director)

REASONS FOR DECISION
The Claim
1 AnnaMaree Ladyman (Ms Ladyman) claims unpaid long service leave entitlement in the amount of $7,823.65 which she says is liable to be paid by the SAI Group of Businesses Pty Ltd t/as the Premier Hotel Pinjarra (SAI) under the Long Service Leave Act 1958 (WA) The applicable version of the Long Service Leave Act 1958 is the version prior to the amendments which were enacted from 1 July 2022.
(LSL Act) (the Claim).
2 SAI denies it is liable for the Claim on the basis that any entitlements alleged to be owed to Ms Ladyman are the responsibility of the previous employer and owner of the business, Golden Hotels Pty Ltd as trustees for the Fensome Family Trust (Golden Hotels), in accordance with a contract for sale.
Background and Facts not in Dispute
3 There are facts germane to both parties which were either uncontroverted or not in dispute, and which the Industrial Magistrates Court (IMC) can accept as reliable consistent with documents tendered into evidence by the parties.
4 SAI is the owner of a hotel in Pinjarra, the Premier Hotel Pinjarra (the Hotel).
5 The Hotel was previously owned by Golden Hotels who purchased the Hotel from Dorsan Investments Pty Ltd (Dorsan) on or around 3 November 2009.
6 Saurabh Ghai entered into an agreement for sale of the Hotel on 5 May 2016 on behalf of a company yet to be incorporated (the Agreement) Exhibit 7 – Sale of Business Agreement
. Subsequently, SAI incorporated in June 2016 with the settlement for the sale of the Hotel being finalised on 28 October 2016 Exhibit 8 – Australian Business Register for the respondent
.
7 The Agreement contained a term in Part B at clause 19 which states ‘(a) The Seller’s employment of the Seller’s employees in the Business will cease at the Date of Possession and all accrued entitlements will be paid by the Seller’, where the words in bold were handwritten into clause 19 (Clause 19). The Seller is Golden Hotels.
8 Ms Ladyman was employed to work at the Hotel as a casual kitchenhand. At times she carried out employment as a casual cook and cleaner.
9 On 25 November 2016, Ms Ladyman signed a contract of employment as a casual level 1 food and beverage attendant (kitchenhand) at the Hotel, which stated her commencement date as 30 November 2016 (the Contract). The Contract also stated that Ms Ladyman’s employment was subject to the Hospitality Industry (General) Award 2010 (the Award). The Contract provided for an entitlement to long service leave ‘in accordance with, and subject to the provisions of the Western Australia Long Service Leave Act 1958’. Exhibit 2 – Contract of Employment signed by Ms Ladyman on 25 November 2016

10 Ms Ladyman undertook causal employment at the Hotel, including when she was employed by SAI, although the dates are in dispute.
11 Ms Ladyman ceased her employment with SAI on 4 May 2018 when she provided SAI with a letter of resignation (the Termination Letter). Exhibit 1 – Witness Statement of Anna-Maree Grace Ladyman filed on 24 May 2024 and attached to the witness statement
However, her final week of work at the Hotel was the week ending 23 April 2018 when a manager at the Hotel refused to give her any further work.
12 Schedule I to these reasons is the practice and procedure by the IMC in relation to the Claim.
Issues for Determination
13 The principal issues for determination are:
(a) What period was Ms Ladyman employed at the Hotel?
(b) What was the effect of the sale of the Hotel from Golden Hotels to SAI?
(c) Was Ms Ladyman continuously employed by SAI and entitled to long service leave following the sale of the Hotel to SAI?
(d) If Ms Ladyman is entitled to long service leave, what is her entitlement?
Facts in Dispute
14 The facts in dispute mainly involve the total time Ms Ladyman worked at the Hotel and if her employment at the Hotel amounted to continuous employment.
15 Ms Ladyman gave evidence on her own behalf and relied on several documents, including pay slips and bank statements.
16 Karthik Dorairaj (Mr Dorairaj) gave evidence on behalf of SAI and relied on several documents, including the Agreement.
Ms Ladyman
17 Ms Ladyman stated she commenced casual employment at the Hotel as a kitchenhand on 19 June 2006 when she was employed by Dorsan. She stated she continued this employment when the Hotel was purchased by Golden Hotels, although she also carried out casual work as a cleaner and cook. She stated she also continued this employment when the Hotel was purchased by SAI.
18 Ms Ladyman accepted that she did not have payslips or bank statements covering the whole of her alleged employment at the Hotel. She explained that she could not afford to pay for the historical bank statements and was either not given, or lost payslips. She referred to the pay periods between 15 September 2017 and 6 December 2017 when she was not given payslips by SAI but said for that period, she had bank statements showing payment by SAI for work undertaken at the Hotel. Exhibit 4 – bundle of Bendigo Bank statements from 19 April 2016 to 18 May 2018

19 The supporting documents she did have included incomplete payslips from 2013 to 2018 and bank statements from May 2016 to May 2018. Exhibit 3 – incomplete payslips from 2013 to 2016, Exhibit 4 and Exhibit 5 – incomplete payslips from 2016 to 2018 and corresponding bank statements

20 In respect of the work carried out at the Hotel, she stated as follows:
· she mainly worked as a kitchenhand but covered the leave of the head chef where necessary and undertook cleaning duties if the cleaner was away;
· all this work was undertaken on a casual basis;
· she never had a written contract of employment with Dorsan or Golden Hotels;
· she worked according to a roster, which was published a few days before;
· the roster system was in place from her commencement in June 2006 to her resignation in May 2018;
· she worked five to six days per week from about 10.30 am to 2.30 pm and 5.30 pm to 8.30/9.00 pm;
· she would work more than those times if she was covering the head chef or carrying out cleaning duties;
· she was paid weekly by Direct Debit into the same bank account by Dorsan, Golden Hotels and SAI;
· the only time she had away from work at the Hotel was when she had [unpaid] annual leave or [unpaid] sick leave (for example, she said she took two weeks off to go on a cruise);
· beyond being shown how to cook by the head chef, her work at the Hotel did not change between June 2006 and May 2018;
· between June 2006 and May 2018, staff at the Hotel signed a file for the hours worked; there was no change in any work practices during the time the Hotel changed ownership from Dorsan to Golden Hotels to SAI.
· in reference to Mr Dorairaj’s witness statement, she said she never received an agreement dated 6 October 2016 and she does not know what this was about; further she had never seen the ‘settlement’ email about the sale of the Hotel; and she had never seen the letter of engagement dated 17 November 2016;
· she signed the Contract but did not have a copy signed by SAI;
· she resigned from working at the Hotel due to conflict with the manager appointed by SAI, when the manager refused to allocate her work on the roster in April 2018 and employed someone else to do her job;
· she maintained that she always worked casually and did not have a contract of employment with Dorsan;
· she had a cleaning job from about 1998 to 2006, but she thought she finished at the cleaning job not long after she started working at the Hotel in 2006;
· within a couple of weeks of not working at the Hotel she found new employment, and she formally resigned after being told by Fair Work that to access any entitlements she was required to terminate her employment. This resulted in the Termination Letter being sent one to two weeks later. She said the manager refused to ‘terminate’ her employment;
· she said Mr Dorairaj was never at the Hotel;
· she maintained that the only breaks she had between 2006 and 2016 were [unpaid] annual leave and sick leave; and
· she said the claim was commenced late (although within statutory time limits) because she did not think casual employees were entitled to long service leave until the law changed in 2016. She tried to commence a claim through the civil courts, but it cost money to continue the claim, so she gave up and she was not aware of the IMC until told by Fair Work and Wageline.
Mr Dorairaj
21 Mr Dorairaj is the sole director of SAI. He said the settlement for the Hotel took some time to go through as it was difficult to raise finance. Three other people were supposed to be partners in the business, but they did not follow through on their plans and by December 2016 or early 2017, he was left with the entire business.
22 He is a dentist, and the three other people were supposed to be handling the business. The Hotel is operated by a manager or managers who run the business on behalf of Mr Dorairaj and SAI.
23 Mr Dorairaj agreed that the operation of the Hotel prior to October 2016 was largely unknown to him. Further, he agreed that had no interaction with Ms Ladyman before October 2016 and after October 2016, any interaction was limited to pleasantries between them.
24 SAI relies on the terms of Clause 19 to the Agreement in defence of the claim. He said employees were given an agreement dated 6 October 2016 and letters of engagement, although he agreed this was done by one of the other people initially involved in running the Hotel, not him. He said he saw an email sending out the agreement.
25 Mr Dorairaj said he directed a chef to go back to Golden Hotels to get his entitlements and, as far as he is aware, this person received their entitlements.
26 Mr Dorairaj would like to see more information or evidence from Ms Ladyman about her employment at the Hotel (that is, other than the tendered pay slips or bank statements).
27 In his submission, Mr Dorairaj contended there was a lack of evidence from Ms Ladyman to prove her continuous employment with the Hotel. Other than her oral evidence, there was no corroborating evidence of her continuous employment with the Hotel for the whole of the period she says she was employed. Mr Dorairaj further contends the IMC should take this into account when assessing her claim for long service leave.
Documents
28 The payslips tendered by Ms Ladyman show the following:
2013
Five payslips from 10 September 2013 to 22 October 2013 where the hours worked were between 28.75 and 30.25 per week and earnings were between $725.63 and $763.90 (gross) with the standard rate of pay being $25 per hour for a cook.
The payslip for the week ending 16 September 2013 shows the year to date (YTD) earnings as $8,307.76.
The earnings related to work as a kitchenhand, cook and ‘other earnings’.
2015
Five payslips from 22 September 2015 to 20 October 2015 where the hours worked were between 28.75 and 40.25 per week and earnings were between $795.20 and $1,045.26 (gross) with the standard rate of pay being $25 per hour for a cook and $22.24 for a level 1 kitchenhand.
The payslip for the week ending 28 September 2015 shows the YTD earnings as $9,212.46.
The earnings related to work as a kitchenhand, cook and ‘other earnings’.
2016
Seventeen payslips from 3 May 2016 to 3 January 2017 where the hours worked were between 18.25 and 41.25 per week (from 23 November 2016, SAI changed to fortnightly payslips and payments) and the earnings were between $418.46 and $893.82 (gross) with the standard rate of pay being $22.76 per hour for a level 1 kitchenhand, $22.76 for a level 1 cleaner and $25 for a cook.
The payslip for the week ending 16 May 2016 shows the YTD earnings as $37,337.09.
The earnings related to work as a kitchenhand, cook and cleaner.
2017
From 26 April 2017 to 23 April 2018, Ms Ladyman reconstructed her 2017 and 2018 payslips into a spreadsheet with the payslips attached, which I will refer to. Exhibit 1 – attached to the witness statement
However, in addition to the spreadsheet and attached payslips are two payslips for the fortnight commencing 18 January 2017 and 1 February 2017 where the hours worked are 51 and 55.5 hours per fortnight and the earnings are $1,495.59 and $1,524.79, respectively. The standard rate of pay is $22.76.
29 Relevantly, Ms Ladyman’s bank statements fill in certain gaps in 2016 with direct debits for wages from Golden Hotels being credited into her account weekly between 24 May 2016 and 26 July 2016 and on 20 and 27 September 2016.
30 Attached to these reasons at Schedule II is a reconstruction of the information contained in the payslips and bank statements.
31 Ms Ladyman prepared a spreadsheet as referred to above. The spreadsheet replicated hours worked and standard rates of pay from corresponding payslips from 26 April 2017 to 23 April 2018. There are no payslips for the period 15 September 2017 to 6 December 2017, so the figures in the spreadsheet are given as a ‘rough estimate’ by her. However, Ms Ladyman’s bank statements for the corresponding period shows that Ms Ladyman was paid by direct debit by SAI fortnightly from 27 September 2017 to 4 October 2017 and then weekly from 11 October 2017 to 6 December 2017. Attached at Schedule III is the spreadsheet prepared by Ms Ladyman.
32 In 2017 and 2018, Ms Ladyman’s earnings related to work as a level 1 kitchenhand and a level 3 cook.
33 Attached to Ms Ladyman’s witness statement is a letter dated 6 October 2016 signed by Mr Dorairaj on behalf of SAI (the 6 October Letter). Exhibit 1 – attached to the witness statement
There may have been some confusion about the content of Mr Dorairaj’s witness statement Exhibit 6 – witness statement of Karthigayan Dorairaj filed on 7 June 2024
where it refers to ‘[a]s per the agreement sent to all the Employees on the 6th of October before the purchase of the Premier Hotel’ and Ms Ladyman’s oral evidence that she did not receive any agreement dated 6 October 2016. However, Ms Ladyman plainly received the 6 October Letter, which I accept is the document referred to by Mr Dorairaj, albeit he refers to it as an ‘agreement’.
34 The 6 October Letter is a generic letter sent to employees purporting to terminate their employment with Golden Hotels and informing them SAI would own and operate the Hotel from 18 October 2016. Further, the 6 October Letter informs employees that if they are offered new employment at the Hotel, any prior service entitlements accrued while employed by Golden Hotels will not be recognised by SAI.
35 A letter of engagement dated 17 November 2016 Exhibit 6 – attached to the witness statement
is an offer of employment to Ms Ladyman, which she asserts she never received. It contains terms ordinarily seen in letters of this type.
Assessment of the evidence
36 I am satisfied that Ms Ladyman and Mr Dorairaj were truthful in giving their evidence. Their evidence was often supported by tendered documents.
37 However, it was apparent Mr Dorairaj had little, if any, knowledge of the operation of the Hotel prior to settlement on 28 October 2016. I am also satisfied that while he may have developed more knowledge after settlement, the running of the Hotel was deferred to managers or other people he considered might be his ‘partners’ in the business. He relied upon others to run the business and was not aware of all that might have been sent or not sent to employees.
38 Accordingly, I accept Ms Ladyman’s evidence that she did not receive any agreement dated 6 October 2016, but she did receive the 6 October Letter. I also accept her evidence she did not receive a letter of engagement dated 17 November 2016. This is also consistent with her evidence that she continued to work at the Hotel in the same manner as she had done prior to the settlement of the Hotel.
39 It is also consistent with her bank statements, which show the last bank payment by Golden Hotels was on 28 October 2016 whereupon, and without a break, she continued to be paid by SAI from 3 November 2016 on a weekly and then on a fortnightly basis. The corresponding payslips also demonstrate Ms Ladyman continued to work across the settlement period.
40 I am satisfied the only documents Ms Ladyman received were the 6 October Letter and the Contract, which she signed.
41 Otherwise, Mr Dorairaj’s evidence was that the Agreement and Clause 19 operated as a bar to any entitlement Ms Ladyman may have under the LSL Act as against SAI.
42 I am satisfied Ms Ladyman gave reliable and credible evidence as it related to the work she carried out at the Hotel. The payslips she was able to provide demonstrate she worked principally as a kitchenhand, but also as a cook and, from time to time, as a cleaner. While the hours worked recorded in the payslips do not wholly accord with her evidence that she worked seven to eight hours per day, five to six days per week, they do show she worked regularly on weekdays and weekends. Further, she may have attended work for seven hours per day but was not paid for breaks.
43 The payslips and bank statements from 3 May 2016 to 23 April 2018 show she consistently worked at the Hotel without any appreciable break.
44 The YTD earnings of $37,337.09 recorded on the 16 May 2016 payslip could only have been earnt because of work undertaken at the Hotel in the financial year from 1 July 2015. That is, the only reasonable inference to be drawn from the YTD earnings on the 16 May 2016 payslip was that Ms Ladyman was working at the Hotel between 1 July 2015 and 16 May 2016 where she earned $37,337.09 in gross total earnings during that time (also recorded in part on known 2015 payslips). Given Ms Ladyman’s gross earnings from known payslips for this time period were between $795.20 and $1,045.26 per week, numerically, she could have worked between 35 and 46 weeks from 1 July 2015 to 16 May 2016. Again, this is consistent with her evidence that she continually worked at the Hotel and only had breaks for [unpaid] annual leave and sick leave.
45 Similarly, the YTD earnings of $8,307.76 recorded on the 16 September 2013 pay slip could only be earnt because of work undertaken at the Hotel in the financial year from 1 July 2013. That is, the only reasonable inference to be drawn from the YTD earnings on the 16 September 2013 payslip was that Ms Ladyman was working at the Hotel between 1 July 2013 and 16 September 2013 where she earned $8,307.76 in gross total earnings during that time. Given Ms Ladyman’s gross earnings from known payslips for this time period were between $725.63 and $763.90 per week, numerically she could have worked between 10 and 11 weeks between 1 July 2013 to 16 September 2013. Again, this is consistent with her evidence that she continually worked at the Hotel and only had breaks for [unpaid] annual leave and sick leave.
46 The question is whether I am satisfied that for the periods of time unsupported by any documents such as payslips or bank statements, Ms Ladyman consistently worked at the Hotel. That is, for the period June 2006 to 30 June 2013 and 28 October 2013 to 30 June 2015 the only evidence that Ms Ladyman consistently worked at the Hotel is her incourt evidence (both oral evidence and written statement).
47 For the following reasons, I am satisfied Ms Ladyman’s in-court evidence as it relates to period of work at the Hotel from June 2006 to 30 June 2013 and from 28 October 2013 to 30 June 2015 is credible and reliable:
(a) there was no real challenge to Ms Ladyman’s oral or written evidence concerning the period she worked at the Hotel, rather there was a desire for ‘more’ evidence;
(b) where Ms Ladyman had documentary evidence, this evidence corroborated her oral evidence (as detailed above);
(c) Ms Ladyman gave her evidence in a plain and straightforward manner. She did not embellish her evidence. She presented as an honest witness; and
(d) the Termination Letter contemporaneously requested payment of an entitlement to long service leave for the prior 11 years of employment and stated further action would be taken ‘through Wageline WA’. This was consistent with Ms Ladyman’s evidence that she sought advice from Wageline prior to writing the Termination Letter. In addition, there was no challenge to the authenticity or content of this letter.
48 Ms Ladyman sought to rely upon an email from Susan Roberts (Ms Roberts), Director of Dorsan, dated 19 May 2024, where Ms Roberts says Ms Ladyman was employed by Dorsan at the Hotel from 19 June 2006 to 3 November 2009, when the Hotel was sold. Exhibit 1 – attached to the witness statement
However, the email is unsigned, and Ms Roberts was not present in court for cross-examination on its contents by the respondent. Accordingly, I place less weight on the content of this email, although certain comments were likely to be uncontentious (for example, the original ownership and sale of the Hotel or Dorsan being wound up).
Findings of Facts in Dispute
49 Having regard to the credible and reliable evidence in relation to the facts in dispute, I find on the balance of probabilities the following:
(a) Ms Ladyman was employed by Dorsan on 19 June 2006 to work at the Hotel on a casual basis as a kitchenhand, but from time to time also carried out casual work as a cook and a cleaner;
(b) Dorsan sold the Hotel to Golden Hotels on 3 November 2009;
(c) Ms Ladyman was then employed by Golden Hotels from 3 November 2009 on a casual basis as a kitchenhand, but from time to time also carried out casual work as a cook and a cleaner;
(d) Ms Ladyman was then employed by SAI from 28 October 2016 on a casual basis, principally as a kitchenhand but she also undertook some relief cooking duties;
(e) Ms Ladyman resigned from employment on 4 May 2018, however, she was not provided with work at the Hotel from 23 April 2018;
(f) Ms Ladyman did not have any written contract of employment until provided with the Contract by SAI which she signed on 28 November 2016; and
(g) from 19 June 2006 to 4 May 2018, Ms Ladyman worked at the Hotel in the same role and the only times she had any break from work was when she took [unpaid] annual and sick leave.
Long Service Leave
50 Section 8 of the LSL Act provides for an employee entitlement to long service leave of 8 23 weeks on ordinary pay in respect of continuous employment with one and the same employer. The entitlement arises upon completion of 10 years continuous employment. However, a proportionate entitlement arises if the employment is terminated (without serious misconduct) after completion of seven years continuous employment.
51 An employee is any person whose usual status is that of an employee and an employer includes a company employing an employee.
52 Having regard to the found facts, I am satisfied the claimant was employed by SAI, and may have an entitlement to long service leave if she satisfies the requirement of the LSL Act as to continuous employment.
53 Sections 6(2)(a), (4), and (5) of the LSL Act concerns the meaning of continuous employment when a business is sold and an employee ceases to be employed by the seller of the business (referred to as the transmittor) and commences to be employed by the buyer of the business (referred to as the transmittee).
54 At issue in this case is whether there has been a transmission of the business of the Hotel from Golden Hotels to SAI such that the claimant’s employment with Golden Hotels is deemed to be employment with SAI.
55 Section 6(1) of the LSL Act identifies time periods that are deemed to be included in employment: absence for annual leave; absence from sickness to a maximum of 15 days per year; any time after termination by an employer intending to avoid the Act; and time spent on military service.
56 Section 6(2) of the LSL Act identifies events that are deemed not to break what might otherwise constitute a break in continuous service including: any authorised absence from employment; any termination if the employee is re-employed within two months (or within six months if the termination was on the ground of slackness of trade); and absence for any other reason (not identified in sections 6(1) or 6(2)) unless, within 14 days return from absence, the employer has given written notice of a break in the continuity of employment.
57 Although employment is not severed by the events identified in s 6(2), s 6(3) of the LSL Act provides that the periods of absence from employment by reason of these events are not to be counted as periods of employment for the purpose of reaching seven or 10-years continuous employment.
58 Long service leave is paid at the ordinary rate of pay. Ordinary pay is defined in s 4 of the LSL Act to mean remuneration for an employee's normal weekly number of hours of work calculated on the ordinary time rate of pay applicable at the time when long service leave is granted.
59 The LSL Act also provides that where the normal weekly number of hours have varied over the period of employment of a full time, part time or casual employee, the normal weekly number of hours of work shall be deemed to be the average weekly number of hours worked by the employee during that period of employment.
What period was Ms Ladyman employed at the Hotel?
60 Having regard to the findings of fact, Ms Ladyman was employed on a casual basis as a kitchenhand and, from time to time, a cook and cleaner, at the Hotel from 19 June 2006.
61 The remaining issue is when her employment ended? From Ms Ladyman’s perspective, the Termination Letter formally ended her employment on 4 May 2018. However, from 23 April 2018, a manager at the Hotel refused to give her further shifts and she undertook no further work at the Hotel from 23 April 2018.
62 Ms Ladyman’s bank statements for the corresponding period show her final pay by SAI was on 26 April 2018.
63 Pursuant to s 117 and s 123 of the Fair Work Act 2009 (Cth) (the FWA) and cl 13 and cl 16 of the Award, both of which were applicable to Ms Ladyman’s employment at the Hotel (subject to my comments in paragraph 66), casual employees are not required to be provided with written notice of termination of employment or given a minimum notice period.
64 Accordingly, I find that Ms Ladyman’s employment at the Hotel and with SAI ceased on 23 April 2018.
65 Therefore, I find that Ms Ladyman was employed at the Hotel from 19 June 2006 to 23 April 2018.
66 I leave to one side the possible effect of Ms Ladyman’s regular and ongoing continual service at the Hotel, including during her employment by SAI, as it was not argued by the parties and did not form part of Ms Ladyman’s claim. I note, however, that if this had formed part of her claim, it may have changed the cessation date (or other entitlements).
What was the effect of the sale of the Hotel from Golden Hotels to SAI?
67 The effect of sections 6(2)(a), (4) and (5) of the LSL Act is that where a business is transferred from one employer (the seller) to another employer (the buyer) and an employee of the seller becomes an employee of the buyer, the period of continuous employment with the seller is deemed to be employment with the buyer.
68 SAI relies upon the terms of the Agreement. Namely, the handwritten term in Clause 19 stating ‘all accrued entitlements will be paid by the seller’. SAI also relies upon the 6 October Letter informing employees, including Ms Ladyman, that they would ‘shortly’ be offered a position at the Hotel and all their prior service entitlements would not be recognised by SAI.
69 SAI may or may not have rights against Golden Hotels under the Agreement. However, this is no answer to the effect of the s 6(2)(a), (4) and (5) of the LSL Act. A similar conclusion was reached in Kieran Cousens v Consolidated Ice Holdings Pty Ltd [2016] WAIRC 00305; 96 WAIG 570 where, at [36]  [38], Industrial Magistrate Cicchini stated:
[T]he contingent qualification of an employee with respect to long service leave is transferred from the transmittor to the transmittee of a business.
When the respondent purchased the business there was no long service leave liability with respect to the claimant. There was only a contingent liability which would crystalise if the claimant remained in continuous employment for the qualifying period as is stated in s 8(2) or 8(3) of the LSL Act. It was only when the claimant met the qualifying criteria for entitlement to pro-rata long service leave that the respondent's liability arose by virtue s 8(1) and s 8(3) of the LSL Act.
Mr Watson failed to appreciate, at the time that the respondent purchased the business, that the respondent could not, because of s 6(4) of the LSL Act, sever the claimant's previous service with the transmittor. The claimant's service for the purposes of long service leave qualification carried over and had to be taken into account for the purpose of the qualification required by s 8(3) of the LSL Act. Having met the criteria required by s 8(3) of the LSL Act, the claimant became entitled to the payment of pro-rata long service leave upon the termination of his employment. The respondent was obligated to make that payment.
70 Further, to the extent the 6 October Letter purported to severe Ms Ladyman’s employment at the Hotel, this was clearly not the case. Ms Ladyman worked without break seamlessly transitioning from Golden Hotels to SAI in the same role. She did so until presented with the Contract, which merely formalised and continued what, in fact, had been in place during the entirety of her employment at the Hotel.
71 The 6 October Letter and the Agreement do not operate to defeat entitlements owed under the LSL Act where the legislation specifically provides for the effect of the transmission of the Hotel from Golden Hotels to SAI. As already stated, SAI may have a claim against Golden Hotels, but that is not a matter for Ms Ladyman.
72 Ms Ladyman referred to being ineligible for long service leave in 2016 as a casual employee until a change in the law. For my part, I am not aware of any ‘change in the law’ in or around 2016 which resulted in casual employees being entitled to long service leave. It may be that there was a misconception amongst employees and employers that casual employees were not entitled to long service leave. However, the crucial requirement is whether the casual employee was continuously employed by the employer for the requisite period to qualify for long service leave.
73 Causal employees are included in the definition of employee in s 4(1) of the LSL Act by virtue of subsection (b) any person whose usual status is that of an employee. The exclusions in s 4(3) do not apply in this case.
Was Ms Ladyman continuously employed by SAI?
74 Upon the transfer of the business of the Hotel from Golden Hotels to SAI, Ms Ladyman became an employee of SAI.
75 Section 6 of the LSL Act is entitled ‘What constitutes continuous employment’ but does not actually define the term continuous employment. What it does is deem various periods of absence as employment for the purposes of the LSL Act. Amendments to the LSL Act from 1 July 2022 clarified the meaning of continuous employment but this does not apply to Ms Ladyman given her employment terminated in 2018.
76 Section 6(1) of the LSL deems periods of absence from duty as periods of employment, for the purposes of the LSL Act including, relevantly, at s 6(1)(a)(i) annual leave and at s 6(1)(b) sickness and injury up to 15 working days in any year of employment.
77 Further, as already stated, s 6(2)(a) of the LSL Act deems to include as continuous employment the transmission of a business referred to in subsections (4) and (5).
78 Other absences referred to in s 6(2) of the LSL Act are also deemed to be continuous employment, however, subsections (2)(c)  (i) shall not be counted for the purposes of determining the period of an employee’s employment: s 6(3) of the LSL Act.
79 That is, s 6(2) of the LSL Act refers to various events which are deemed not to break service or what might otherwise be considered a break in continuous service but identified breaks in service (if they apply) do not count for the purposes of determining the period of employment referrable to s 8(2) and (3) of the LSL Act: s 6(2)(c)  (i) and s 6(3) of the LSL Act.
80 Having regard to the findings of fact, I am satisfied that Ms Ladyman’s employment at the Hotel was not broken by reason of:
· s 6(2)(c) any absence authorised by any employer (save for unpaid annual and sick leave);
· s 6(2)(d) her being stood down in accordance with any industrial agreement or order;
· s 6(2)(e) any duty arising from any industrial dispute;
· s 6(2)(f) termination on any ground or slackness of trade;
· s 6(2)(g) slackness of trade for greater than 6 months;
· s 6(2)(h) legitimate union business; or
· s 6(2)(i) any other reason not specified in subsection (1) or (2) or where an employer gave notice the continuity of her employment was deemed to be broken.
81 Accordingly, the whole of Ms Ladyman’s employment at the Hotel constitutes continuous employment for the purposes of the LSL Act and is counted for the purposes of s 8(2) and (3) of the LSL Act.
82 That is, for the purposes of s 8(1) of the LSL Act, Ms Ladyman was continuously employed at the Hotel and is deemed to have been continuously employed by one and the same employer, SAI, the transmittee under s 6(4) of the LSL Act.
83 Therefore, Ms Ladyman is deemed to have been employed by SAI from 19 June 2006 to 28 April 2018, being 11 years, 10 months and nine days, and, pursuant to s 8(2)(a) and (7) of the LSL Act, Ms Ladyman was entitled to an amount of long service leave of 8 23 weeks in respect of 10 years and pro rata long service leave for one year, 10 months and nine days.
If Ms Ladyman is entitled to long service leave, what is her entitlement?
84 Ms Ladyman did not take any amount of long service leave during her employment at the Hotel. Accordingly, pursuant to s 8(2)(c)(ii) and s 9 of the LSL Act, upon the termination of her employment, she was entitled to payment of a sum equivalent to the amount which would have been payable in respect of the period of leave to which she was entitled or deemed to have been entitled and which would have been taken but for the termination.
85 This amount is determined by the amount of long service leave paid on ordinary pay.
86 Section 4(1) of the LSL Act defines ordinary pay, which is subject to the further explanation in subsection (2). Ordinary pay is defined to mean remuneration for an employee’s normal weekly number of hours of work calculated on the ordinary time rate of pay applicable at the time when long service leave is granted or is deemed to commence.
87 Section 4(2)(c) of the LSL Act provides:
where the normal weekly number of hours have varied over the period of employment of a full-time, part-time or casual employee the normal weekly number of hours of work shall be deemed to be the average weekly number of hours worked by the employee during that period of employment (calculated by reference to such hours as are ascertainable if the hours actually worked over that period are not known).
88 Therefore, relevant to Ms Ladyman, at the time she terminated her employment, her hourly weekday rate was $23.51 when she worked as a level 1 kitchenhand and $25.26 when she worked as a level 3 cook. Interestingly, in the last week of her employment she worked more hours as a level 3 cook than she did as a level 1 kitchenhand (12 hours vs 4.5 hours). The week prior she only worked as a level 3 cook but the week before that she worked mainly as a level 1 kitchenhand.
89 The spreadsheet prepared by Ms Ladyman for the 12 months prior to her ceasing employment generally shows she continually worked as both a level 1 kitchenhand and level 3 cook, consistent with the known payslips for the corresponding period. Ms Ladyman has applied the higher rate for the purposes of her computation. However, I do not agree with this approach.
90 For the purposes of calculating Ms Ladyman's ordinary rate of pay at the time when long service leave was deemed to commence, I use the following formula derived, in part, from Ms Ladyman’s spreadsheet for the 12 months before her termination (I have not used the hours worked where Ms Ladyman ‘guestimated’ her work hours between 15 September 2017 to 6 December 2017):
91 Total known hours worked as a level 1 kitchenhand × ordinary rate of pay at the time when long service leave was deemed to have commenced: 852.25 × $23.51 = $20,036.40
92 Total known hours worked as a level 3 kitchenhand × ordinary rate of pay at the time when long service leave was deemed to have commenced: 450 × $25.26 = $11,367
93 Total amount earned above ÷ total known hours worked: $31,403.40 ÷ 1302.25 = $24.11 per hour.
94 Therefore, for the purposes of calculating Ms Ladyman’s ordinary time rate of pay applicable at the time when long service leave was deemed to commence, having regard to her mixed employment duties, I use the rate of $24.11 per hour.
95 For the purposes of calculating the average weekly number of hours worked by Ms Ladyman from 19 June 2006 to 23 April 2018 (calculated by reference to such hours as are ascertainable), I refer to the hours worked in the known payslips provided by her, as follows:
Year
Hours Worked
2013
148.25
2015
167.5
2016
564
2017
871.5
2018
533.5
Total
2,284.75 known hours worked


96 The total known weeks worked from the same payslips are as follows:
Year
Weeks Worked
2013
5
2015
5
2016
13
2017
28
2018
15
Total
66 known weeks worked
97 Therefore, the average weekly hours calculated from ascertainable hours over the course of Ms Ladyman’s employment at the Hotel is 34.62 hours per week.
98 Accordingly, the amount of long service leave entitlement owing at the time Ms Ladyman ceased employment at the Hotel was 34.62 average hours per week × $24.11 per hour × (8 23 weeks + 1.6 weeks or 10.267 weeks) = $8,569.76.
Conclusion
99 I am satisfied Ms Ladyman has proven the Claim to the requisite standard for the payment of long service leave entitlement and that this entitlement is required to be paid by SAI pursuant to s 8(2) and s 9 of the LSL Act.
100 I find that the amount to be paid by SAI is $8,569.76.
Orders
101 The respondent is to pay to the claimant the amount of $8,569.76.




D. SCADDAN
INDUSTRIAL MAGISTRATE
SCHEDULE I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court of Western Australia Under the Long Service Leave Act 1958 (WA) and the Industrial Relations Act 1979 (WA)
Jurisdiction
[1] The Industrial Magistrates Court has exclusive jurisdiction to hear and determine all questions and disputes in relation to rights and liabilities under the LSL Act, including whether a person is or is not an employee or employer to whom the LSL Act applies, whether an employee is or has become entitled to long service leave, and the ordinary rate of pay of an employee: s 11(1)(a), (b) and (c) of the LSL Act and s 81AA of the Industrial Relations Act 1979 (WA) (IR Act).
Burden and Standard of Proof
[2] In an application under the LSL Act, the claimant carries the burden of proving the claim. The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’. In Miller v Minister of Pensions [1947] 2 All ER 372, 374, Lord Denning explained the standard in the following terms:
It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say “we think it more probable than not,” the burden is discharged, but, if the probabilities are equal, it is not.
[3] Where in this decision it is stated that a finding has been made, the finding is made on the balance of probabilities. Where it is stated that a finding has not been made or cannot be made, then no finding can be made on the balance of probabilities.
Practice and Procedure of the Industrial Magistrates Court of Western Australia
[4] Subject to the provisions of the LSL Act and the IR Act, the procedure of the IMC relevant to claims under the FWA is contained in the Industrial Magistrate's Court (General Jurisdiction) Regulations 2005 (WA) (IMC Regulations). Notably, reg 35(4) of the IMC Regulations provides the court is not bound by the rules of evidence and may inform itself on any matter and in any manner as it thinks fit.
[5] In Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27, Commissioner Sleight examined a similarly worded provision regulating the conduct of proceedings in the State Administrative Tribunal and made the following observation:
The tribunal is not bound by the rules of evidence and may inform itself in such a manner as it thinks appropriate. This does not mean that the rules of evidence are to be ignored. The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force. The drawing of an inference without evidence is an error of law. Similarly such error is shown when the tribunal bases its conclusion on its own view of a matter which requires evidence [40]. (citations omitted)

SCHEDULE II: Spreadsheet of reconstructed payslips and bank statements

Date
Hours Worked
Gross Payment $
Year to Date Payment Received $

10/09/2013
30.25
665.74
8307.76 (16/09/2013)
1/10/2013
30.25
665.68

8/10/2013
28.75
642.63

15/10/2013
30.25
667.90

22/10/2013
28.75
642.25

22/09/2015
28.75
791.61
9212.46 (28/09/2015)
29/09/2015
40.25
847.26

6/10/2015
30.25
684.20

13/10/2015
38
802.89

20/10/2015
30.25
686.29

3/05/2016
28.75
668.55
36775.29 (09/05/2016)
10/05/2016
20.75
510.80

17/05/2016
34.25
723.96

14/06/2016
30.5
673.94

2/08/2016
21.5
536.79

9/08/2016
30.5
694.37

16/08/2016
32
710.05

23/08/2016
21
522.74

4/10/2016
31.25
699.96

11/10/2016
30
682.03

18/10/2016
34.25
748.82

25/10/2016
18.25
405.46

*1/11/2016
41.25
548.91

8/11/2016
38.5
1,024.38

15/11/2016
40.25
1,009.71

**23/11/2016
59.5
1,020.22

**21/12/2016
51.5
1,433.43

**18/01/2017
51
1,495.59

**1/02/2017
55.5
1,524.79

**26/04/2017
68.5
1,821.76

**5/07/2017
75
2,017.26


* Payment from SAI commenced from payment period 1 November 2016 and was a part payment.

** Claimant was paid fortnightly during the payment period.




Bank Account

Amount $
24/05/2016
723.96
31/05/2016
639.18
7/06/2016
706.98
14/06/2016
750.56
21/06/2016
673.94
28/06/2016
660.21
5/07/2016
720.30
12/07/2016
673.50
19/07/2016
656.42
26/07/2016
679.61
20/09/2016
770.99
27/09/2016
645.18



SCHEDULE III: Ms Ladyman’s spreadsheet

Date
L1 Kitchenhand


L3 Cook





Weekday Rate
Hours Worked
Payment Date
Weekday Rate
Hours Worked
Total Hours


26/04/2017
$22.76
35
10/05/2017
$24.45
33.5
68.5


10/05/2017
$22.76
26.5
24/05/2017
$24.45
47
73.5


24/05/2017
$22.76
36.5
7/06/2017
$24.45
31.25
67.75


7/06/2017
$22.76
38.5
21/06/2017
$24.45
19.25
56.75


21/06/2017
$22.76
35.75
5/07/2017
$24.45
15
50.75


5/07/2017
$22.76
53.5
19/07/2017
$24.45
21.5
75


19/07/2017
$22.76
67.25
2/08/2017
$24.45
11.5
78.5


2/08/2017
$22.76
71.25
16/08/2017
$24.45
4.75
76


16/08/2017
$23.51
61.75
30/08/2017
$25.26
17.5
79.25











No pay slips from 15/09/2017 to 6/12/2017 so these are rough estimates













15/09/2017

13


38
51


27/09/2017

34


47
81


4/10/2017

7


20
27


11/10/2017

4


25
29


18/10/2017

0


25.75
27.75


25/10/2017

0


25.25
25.25


1/11/2017

0


25.5
25.5


8/11/2017

0


28
28


15/11/2017

0


26
26


22/11/2017

7


34
41


29/11/2017

0


32
32


6/12/2017

0


27
27











4/12/2017
$23.51
30.75
12/12/2017
$25.26
8
38.75


11/12/2017
$23.51
20.5
19/12/2017
$25.26
13.5
34


18/12/2017
$23.51
21.5
27/12/2017
$25.26
14.25
35.75


25/12/2017
$23.51
26.25
2/01/2018
$25.26
4.25
30.5


1/01/2018
$23.51
28.5
9/01/2018
$25.26
7.25
35.25


8/01/2018
$23.51
25.25
16/01/2018
$25.26
13.25
37.5


16/01/2018
$23.51
24
22/01/2018
$25.26
13.75
37.75


23/01/2018
$23.51
22
29/01/2018
$25.26
7.25
29.25


30/01/2018
$23.51
31.5
5/02/2018
$25.26
10.25
41.75


6/02/2018
$23.51
28.5
12/02/2018
$25.26
11
39.5


13/02/2018
$23.51
27
19/02/2018
$25.26
6.5
33.5


20/02/2018
$23.51
28
26/02/2018
$25.26
7
35


27/02/2018
$23.51
31
6/03/2018
$25.26
6.75
36.75


6/03/2018
$23.51
36.5
12/03/2018
$25.26
6
42.5


13/03/2018
$23.51
5
19/03/2018
$25.26
51.25
56.25


27/03/2018
$23.51
13.25
2/04/2018
$25.26
9.25
22.5


3/04/2018
$23.51
22.25
9/04/2018
$25.26
4
26.25


10/04/2018
$23.51
0
16/04/2018
$25.26
43.25
43.25


17/04/2018
$23.51
4.5
23/04/2018
$25.26
12
16.5











Total hours worked as L1 Kitchenhand/Cleaner 26/04/2017 to 17/04/2018





$23.51
888 divided by 52 = 17.07 hours per week













Total hours worked as L3 Cook from 26/04/2017 to 17/04/2018









$25.26
803 divided by 52 weeks = 15.44 hours per week




















17.07


15.44
32.51 hours































9.53 weeks long service leave x 32.51 x 25.26 = 7823.65