Wallmans

various

 

Our Ref: CJP:BMH:86117

Your Ref: PXM:rkg:082573

17 February 2009

By email: peter.milte@wallmans.com.au

Wallmans Lawyers

GPO Box 1018

ADELAIDE SA 5001

Attention Peter Milte

Dear Sir

RE: OUR CLIENT: ALEXANDER ELVIS KULJA
YOUR CLIENT: AUSTRALIAN INSTITUTE AND METAL PTY LTD

We acknowledge receipt of your two letters of 29^th September 2008.

In respect of the longer of those two letters we respond as follows:-

1.   &nb 212g69c sp;   &nb 212g69c sp;   &nb 212g69c sp; Our client was not a casual employee.

Firstly, although he was paid a casual rate whilst he initally worked for your client, the fact that he was so employed for a period of over a year appears to us to mean that, in fact, he has to be regarded as having eventually become a permanent employee given that he had regular and continuous employment over an extended period of time.

Secondly, and perhaps more to the point, is the fact that when our client was asked to travel to Queensland to work on the subject project, he was advised that he would now be full time. He was paid in accordance with that. We enclose herewith a copy of his payroll advice for the payment date of 23/7/2008. You will see that his pay rate is at the full time rate not the casual rate. It is absurd for your client to suggest that he was not entitled to sick pay. Quite clearly he was. The fact that your client has failed to pay him any to date is reprehensible.

It will be noted that our client had, according to the calculations set out on the pay advice referred to above, accumulated 28.95 hours of holiday pay entitlements. It is also noteworthy that he was paid sick leave for a separate illness and that is evidenced on that document.

2.   &nb 212g69c sp;   &nb 212g69c sp;   &nb 212g69c sp; We do not understand this paragraph. Presumably, if our client was a casual employee as alleged in the first paragraph, he would not accumulate any holiday pay. Your response seems to imply that he was entitled to holiday pay. Of course, the fact is that he was so entitled because he was a full time employee. This is the first our client was aware that he was "paid out fully". On the contrary, he has not received any payment in lieu of holiday pay at all. If your client continues to assert that he has done so please provide a copy of the payroll advices that prove same.

3.   &nb 212g69c sp;   &nb 212g69c sp;   &nb 212g69c sp; Perhaps part of  the answer to our confusion about your letter is that your client is attempting to assert that although our client was full time in Queensland, he reverted to being a casual employee upon his return to South Australia. If that is the point your client wishes to make, it is clearly wrong.

Firstly, that would involve the bringing to an end of one period of employment and the offer of a further period of employment, this being on totally different terms. If that was meant to be the case it is fundamental that it should have been pointed out to our client. It was not.

Secondly, the objective facts are inconsistent with this having happened. Our client was injured on the 28^th August. He attempted to return to work on the following day but was unable to do so. He obtained a medical certificate from a Doctor at the Dalby hospital which certified him unfit for work until the 1^st September. Our client was due to return to South Australia for a period of 6 rostered days off on the 1^st September. Mr Gordon Inglis then contacted our client by telephone. He told him that instead of waiting for the following Monday to return to South Australia he wanted him to fly back immediately. He said that he did not want our client to be sitting up in Queensland being paid for doing nothing. Our client asked whether he should pack up his belongings or otherwise. He was told to leave his belongings there. He did so. They have only been recently returned to our client by a fellow employee.

Your client then wrote to our client on the 2^nd September 2008. We enclose a copy of that letter. You will see that the letter indicates that a decision has been made to "relocate" our client back to the home office. Clearly it does not constitute a dismissal or any other form of termination of employment.

You will note that paragraph 2.6 of the agreement provides that an employee's period of notice would be one week for a full time employee. We enclose a copy of the last pay advice our client received. You will note that no notice has been paid let alone one week's worth -nor any sick pay or holiday pay. (Of course, it is arguable that the period of notice should have in fact been longer than one week given that our client's period of continuous service with the employer was greater than one year having regard to the employment that had previously been in place.)

4.   &nb 212g69c sp;   &nb 212g69c sp;   &nb 212g69c sp; It should also be noted that our client denies that the content of the letter from your clients was appropriate given that the bunting which he moved on level 5 was not actually erected. It had been in use previously and had simply been left to one side and was in the area where our client had been directed to work. To facilitate his work he then moved it.

One is left with the rather troubling feeling that this warning was a "set up" to dissuade our client from pursuing any other legal entitlements he might have.

5.   &nb 212g69c sp;   &nb 212g69c sp;   &nb 212g69c sp; Your client seems to have only made payment to BIRST after receiving our letter in respect of same. It would be interesting to know if they have paid BIRST on behalf of their other employees. Perhaps that should be checked. In any event, the fact is that our client did provide your client with his BIRST number. In case they continue to assert that they do not have it we advise you that it is T-19176. Our client has contacted BIRST and they have now confirmed that they have received monies on behalf of our client. Bizarrely, they have advised our client that they are unable to release the monies to him as he is still employed by your client! Your client cannot have it both ways. He either is no longer employed full time and is entitled to BIRST, or he is employed full time and is entitled to ongoing sick pay and holiday pay (as well as his past entitlements).

6.   &nb 212g69c sp;   &nb 212g69c sp;   &nb 212g69c sp; The allegation that our client was "signed off and fit for work on the Monday he started back in Adelaide" somewhat glosses over the true facts which are as follows:

6.1   &nb 212g69c sp;   &nb 212g69c sp;   &nb 212g69c sp;   &nb 212g69c sp;  After our client sustained his injuries in the course of his employment with your clients in Queensland, he was taken to the Dalby Hospital. At the hospital, his supervisor, Mr Craig Inglis, urged him not to lodge a WorkCover claim. Present at that conversation with a supervisor for Leightons, named "Derek". "Derek" made it clear that this pressure not to lodge a claim was not appropriate and that a claim for workers compensation should be lodged. Our client then lodged a claim for workers compensation in Queensland. That claim has subsequently been denied on the basis that the appropriate place to lodge the claim is South Australia.

6.2   &nb 212g69c sp;   &nb 212g69c sp;   &nb 212g69c sp;   &nb 212g69c sp;  Our client was then put under pressure to return to work quickly and, in particular, on the following day. (The doctor whom he consulted had originally advised that he would be putting him off work for 4 days. As noted above, this would be the period that would take our client to the end of that period of time he was to spend working in Queensland before he took his standard break.) Our client did, in fact, attempt to return to work on the following day but was in significant and obvious pain. He was told by Mr Craig Inglis, and by a Mr David Craven, that as he had attended work for that day he had to remain there for the full 8 hours notwithstanding the pain he was in. Our client then spoke to his Union representative who, in turn, referred him to a solicitor in Queensland who advised him that this direction was inappropriate and that, if he was in pain, he should leave the job site (which he did). Our client then went back to the Dalby hospital and was given a Certificate to the 1^st September.

6.3   &nb 212g69c sp;   &nb 212g69c sp;   &nb 212g69c sp;   &nb 212g69c sp;  As noted above, your client reacted by returning our client to South Australia. He was then instructed to turn up for work on the following Monday 8^th September.

6.4   &nb 212g69c sp;   &nb 212g69c sp;   &nb 212g69c sp;   &nb 212g69c sp;  After our client returned to South Australia, he consulted his own general practitioner in Adelaide, Dr Rositano. At that time Dr Rositano provided a Certificate allowing him to return to normal work duties from the 8^th September 2008 but stating that his diagnosis of "strained neck" was only a provisional diagnosis. Dr Rositano told our client that if he continued to have problems to make a further appointment to see him. Our client attempted to return to work on the 8^th September 2008 but only lasted part of the day and then went home and made a further appointment to see Dr Rositano on the following Wednesday.

Your clients cannot now assert any lack of knowledge of the extent of our client's injuries given their actions in effectively ignoring concerns about his welfare and in attempting to refuse to pay him his due entitlments.

Yours faithfully,

SCALES & PARTNERS

Per:

C.J. (JOHN) PEARCE

E-mail:  john.pearce@scales.net.au

Enclosures:-

(As Above)