Defendant-appellant - Baesler's Super-Valu (Baesler's) appeals an adverse judgment rendered in the Vigo County Small Claims Court in favor of the Indiana Commissioner of Labor. The suit was brought on behalf of Lotte Bender (Bender), a former employee of Baesler's, for vacation pay.
We affirm.
The facts relevant to our decision and favorable to the judgment are undisputed. Lotte Bender worked as a cashier for Baes-ler's Super-Valu in Sullivan, Indiana, сontinuously from June 12, 1978 until March 8, 1984. In October of 1988, the labor contract which governed the relations of the parties expired. Thereafter, Baesler's and its employees expressly allowed the agreement to renew itself as provided by Article XXXI of the contract until March 8, 1984, when the labor union of which Bender was a member went out on strike. Article XI of the agreement contained the following provisions with respect to vacations:
A. All employees, unless otherwise exempted herein, shall receive an annual vacation with full pay therefore as follows:
After one (1) year of continuous employment-one (1) week vacation; After two (2) years of continuous employment-two (2) weeks of vacation; After eight (8) years of continuous employment-three (8) weeks vacation;
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B. Pay for each week of vacation period shall mean pay for the number of hours regularly worked by the emрloyee as a regular workweek during the twelve (12) months next preceding his vacation multiplied by the rate applicable to the hours so scheduled. Provided, however, that *245 the vacation pay for each week of vacation shall not be less than the average weekly earnings of the employee during the twelve (12) months preceding the employee's vacation.
Vacation pay shall be paid to the employee prior tо the start of his vacation, ...
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G. Upon termination of employment after one (1) year of employment, the employee shall be paid earned vacation pay equal to the sum of the following:
(A) Annual vacation pay then due the employer (sic) but unpaid; and (B) Vacation pay computed in relation to that which would have been due the employee on the next anniversary date of employment, proportionately adjusted to the number of months employed since the last anniversary of employment, provided the employee is not discharged for dishonesty.
Bender accrued 92 hours of vacation pay for the period of June, 1982 to June, 1983. She took her vacation for that period in July and August, 1988. Payroll summaries submitted by Baesler's dated July 20, 1983, and August 10, 1983, showed that Bender was paid $276.00 for 46 regular hours for each of the weeks reflected in the summaries. Bender testified that during the period of June 12, 1983 through Mаrch 8, 1984, she worked an average of 44 hours per week, one 40-hour and one 48-hour week in a two-week period, and was compensated at a rate of six dollars per hour. The small claims court made no findings of fact or law, but awarded Bender damages in the amount of $1224.00 on her complaint for accrued wages, together with attorney's fees of $450.00.
Baesler's presents four issues for our review. We have consolidated these issues into two:
1. Did the triаl court err in finding that an employee, whose employment terminates after a union negotiated employment contract has expired, is entitled to accrued vacation pay?
2. Did the trial court properly invoke IND.CODE 22-2-5-1 & 2 in awarding enhanced damages and attorney's fees?
ISSUE ONE
Baesler's maintains that no common law right to vacation pay exists; any entitlement to such compensation must emanate from 'contract. According to Baes-ler's, its unionized employees abrogated any right to vacation pay derived from contract by going out on strike. Consequently, the trial court erred in finding that Bender was entitled to compensation because her own actions as a union member participating in the strike nullified her basis for claiming relief. Baesler's cites our decision in Die & Mold, Inc. v. Western, (1983) Ind.App.,
In Die & Mold, Inc. v. Western, we considered whether, as a matter of law, vacation pay is an element of an employee's labor.
Thus, our decision in Die & Mold involved basic principles of contract law. Once a trial court finds that an agreement *246 to give vacation pay was made, and the services are rendered by the employee as promised, the trial court must find, as a matter of law that thе right to receive compensation is "vested". See, id., and cases cited therein. The term "vested" is used ordinarily to indicate that some person or legislature has no legal power to affect the primary right created when the contract was made. See, 3A Corbin on Contracts, Ch. 39 § 742 at 458 (1960).
Moreover, we can find nothing in the contract which would indicate that the parties intended their relationship to vary from the common law as established in Die & Mold. Wе are unable to identify any language in the contract which would make a strike by the employees operative to extinguish their right to future performance by their employer according to the terms of the contract.
Applying these principles to the present case, it is apparent that Bendér was entitled to compensation as a matter of law, even after the expiration of the negotiated union contract. Bender demоnstrated that at the time of her anniversary with Baes-ler's in 1983, a written contract was in effect, by which Baesler's had agreed to pay vacation benefits based upon length of service, and had specifically agreed that accrued benefits would be paid upon termination. The only condition placed upon receipt of accrued vacation benefits at the termination of Bender's employment was the requirement that she not be disсharged for dishonesty. The contract contained no provision conditioning the payment of accrued vacation benefits at termination on the passing of the employee's anniversary date. As in Die & Mold, no evidence was presented which would indicate that a change in policy had been negotiated by management in a bargained for exchange or even that any such change in policy had been communicated to the еmployees. In fact, Baesler testified that the company had agreed to extend the terms and provisions of the contract until a new contract could be reached. Bender continued to perform the services required of her after the expiration of the written contract. She is entitled to the additional wages she earned over this period. To condition the receipt of these benefits accruing under the old contract on the ratification of a new contract would be plainly coercive. N.L.R.B. v. General Time Corp., (7th Cir.1981),
ISSUE TWO
Baesler's next contends that the trial court erred in calculating the award in that the judgment exceeds double the highest possible accrued earnings supported by the evidence. We note that because the trial court's judgment was general in nature and did not specify how calculations were made, or that it was premised upon IC. 22-2-5-1 and 2, we assume that the trial court weighed the equities properly, and we presume that the judgment is premised upon findings which are supported by the evidence. We must affirm unless the appellant has shown an abuse of discretion, or that the decision of the trial court cannot be sustained upon any legal theory. City of Logansport v. Remley, (1983) Ind.App.,
The right of a court to assess punitive damages and attorney's fees because an employer has withheld accrued wages is entirely statutory
2
. Standard Liquors v. Narcowich, (1951)
Sec. 1. Every person, firm, corporation or association, their trustees, lessees or receivers appointed by any court whatsoever doing business in this state shall pay each. employee thereof at least semimonthly or bi-weekly, if requested, the amount due such employee and such payment shall be madе in the lawful money of the United States or by negotiable check, draft or money order and any contract to the contrary shall be void. Such payment shall be made for all wages earned to a date not more than ten (10) days prior to the date of such payment: Provided, That nothing herein shall be taken to prevent payments being made at shorter intervals than herein specified nor to repeal any law providing for such payments: Provided, howеver, That should any employee voluntarily leave his employment, either permanently or temporarily, such employer shall not be required to pay such employee any amount due such employee until the next usual and regular day for payment of wages, as established by such employer: Provided, further, That in the event such employee leaves his employment voluntarily, and without his whereabouts or address being known to such employer, such emplоyer shall not be subject to the provisions of IC 1971, 22-2-5-2 of this chapter, unless and until ten (10) days have elapsed, after such employee has made a demand for such wages due him, or has furnished such employer with his address, where such wages may be sent or forwarded to him.
*248 Sec. 2. Every such person, firm, corporation, or association who shall fail to make payment of wages to any such employee as provided in section 1 of this chapter shall, as liquidated damages for such failure, pay to such employee for each day that the amount due to him remains unpaid ten percent (10%) of the amount due to him in addition thereto, not exceeding double the amount of wages due, and said damages may be recovered in any court having jurisdiction of a suit to recover the amount due to such employee, and in any suit so brought to recover said wages or the liquidated damages for nonpayment thereоf, or both, the court shall tax and assess as costs in said case a reasonable fee for the plaintiff's attorney or attorneys.
I.C. 22-2-5-1 serves as a statutory gap-filler when an employer and employee have not negotiated the manner by which wages earned are to be paid. See, American Bus Lines v. Page, (1978)
Relying upon those cases which have strictly construed the demand for semi-monthly or bi-weekly payment of wages requirement of the statutes pre-dat-ing IC. 22-2-5-1, Baesler's argues that 1.C. 22-2-5-1 is inapplicable to the instant case because Bender's demand for vacation pay was not made prior to, or concurrent with the period of employment but only after a wage dispute had arisen. Baesler's is, in essence, asking us to extend the strict requirements for a demand beyond the timing of payment to the situation where an employee vоluntarily leaves employment and seeks unpaid accrued wages, governed by the latter portion of L.C. 22-2-5-1. This we decline to do. The legislature chose not to require a demand for payment upon voluntary termination, explicitly providing that payment not be due until the next usual and regular day for payment of wages. Baesler's has not presented any reason, grounded in the Constitution, for reviewing the appropriateness of that legislative judgment. Moreover, Baesler's does not contend that the statute interfered with its ability to contract with its employees with respect to the timing of payment of vacation pay; instead, Baesler's challenges any entitlement to vacation benefits by its former striking employee. Thus, the constitutional considerations which motivated the courts to strictly construe the demand requirement are not at work here. We are therefore left to consider whether the еvidence supports the application of 1.C. 22-2-5-1 to this claim.
A review of the evidence most favorable to the appellee reveals a clear violation of the statutory mandate to pay on the next usual and regular day for payment of wages. Bender testified that she asked for her vacation pay and was refused by her employer because she voluntarily terminated her employment relationship with Baes-ler's prior to her anniversary date. Bender also testified that she sought assistance
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from the Commissioner of Labor when Baesler's refused to pay the accrued benefits as she requested. Her claim with the Division of Labor was filed on August 20, 1984, a full five months after Bender's last day of work. The Commissioner of Labor initiated this litigation nearly a year later, on July 2, 1985. There was no evidence that Bender's whereabouts were unknown to her employer. Accordingly, the trial court's conclusion thаt Bender had not been paid wages as required by I.C. 22-2-5-1 was well supported by the evidence. The failure to pay employees in this manner activates the penalty provision in I.C. 22-2-5-2, without any further showing. See, Wilson v. Montgomery Ward, (N.D.Ind., 1985)
Having determined that IC. 22-2-5-1 and 2 apply in this case, Baesler's next asks us to consider whether the court properly calculated the amount of penalty, and whether its award of $450 in attorney's fees was appropriate. As an initial matter, we concur with Bender in her contention that 1.0. 22-2-5-2 is ambiguous with respect to the limitation it imposes on the amount of liquidated damages. We will not construe the statute at this time, as Baesler's has not presented cogent argument on the statute's construction, or cited authority for our review, and has thus waived this issue. A.R. 8.3(A)(7). May v. Blinzinger, (1984) Ind.App.,
Baesler's final contention is that there is no evidence in the record to support the amount of attorney's fees requested by Bender. We have little difficulty concluding that the award of attorney's fees involved in this routine small claims case constituted a relatively modest sum, of which judicial notice could be taken as to its reasonableness, and no evidence need have been presented. See, Berkemeier v. Rushville Nat. Bank, (1982) Ind.App.,
The appellee's request for appellate attorney's fees is denied. While it is well settled that one is entitled to attorney's fees when provided for by statute, Templeton v. Sam Klein & Son, Inc., (1981) Ind.,
Judgment affirmed in its entirety.
Notes
. Bender also argues that a full award of $552.00 would be appropriate based upon the custom and dealings of the parties, and at the trial contended that she was entitled to a week's severance pay in addition to vacation pay, amounting to $676.00 before enhancement. While Bender testified that other employees had received vacation pay prior to their anniversary dates at the time of the strike, there is no evidence that these employees received 100% of their salaries as vacаtion pay, or that Bender had ever received 100% of her vacation benefits prior to her anniversary date. With respect to the question of severance pay, Article XXVI of the contract provides in part that an employee classed as full time who is permanently laid off due to a discontinuance of the job, store closing, or reduction in force, shall be entitled to one (1)
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week's notice or one (1) week's pay in lieu of notiсe, with certain exceptions including dishonesty, gross insubordination, drinking on the job and willful misconduct. While there is evidence in the record of the store's closing six weeks after the strike was initiated, evidence that Bender did not return to work within that period and evidence that she believed based upon media coverage, she had been fired, no testimony or exhibits were introduced on the giving of notice, and Bender presented no evidence that ske had in fact been laid off due to the store's closing. Moreover, a review of the record discloses that Baesler's, on cross-examination of Bender, began to question her about the claim for severance pay. Bender's counsel objected and no further evidence was taken on this point. Bender's small claims complaint made only a general request for unpaid wages. Therefore, while we concur with Bender that Trial Rule 15(B) promotes relief for a party based upon the evidence actually forthcoming at trial, notwithstanding the initial direction set by the pleading, Bank of New York v. Bright, (1986) Ind.App.,
In addition, we observe that Bender has not presented argument on the applicability of IND. CODE 22-2-5-1 and 2 to separation pay in lieu of notice. Application of these statutory provisions to customary separation pay arrangements has not yet been addressed by the Indiana courts See Wilson v. Montgomery Ward, (N.D.Ind., 1985),
. The award in this case could have been grounded, however, on either of two possible theories of recovery. Our finding that Bender was entitled to treble damages pursuant to IC. 22-2-5-2 makes it unnecessary to consider Baesler's contention that Bender has failed to establish, by clear and convincing evidence, that Baesler's conduct exhibited elements of oppression. See, Bank of New York v. Bright,