Al-Hakim v Toyoor Al Jannah Pty Ltd
[2018] FCCA 3184
•9 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AL-HAKIM v TOYOOR AL JANNAH PTY LTD & ORS | [2018] FCCA 3184 |
| Catchwords: INDUSTRIAL LAW – Whether applicant was initially engaged as an employee or independent contractor – whether at the time the applicant was initially engaged a representation was made that she would be engaged under a contract of services to perform work under that contract as an independent contractor – no misrepresentation – whether applicant was covered by award during entire period of engagement by the first respondent – whether first respondent contravened award and therefore s.45 of the Fair Work Act 2009 (Cth) (FW Act) by not making superannuation contributions – whether first respondent contravened s.44 of the FW by failing to pay the applicant at the end of her employment, contrary to s.90(2) of the FW Act, annual leave that had accrued but not taken – whether first respondent contravened s.340 of the FW Act – whether first respondent dismissed the applicant from her employment or whether the applicant voluntarily resigned – applicant voluntarily resigned – whether first respondent contravened s.536 of the FW Act by not providing payslips to applicant – whether second and third respondents involved in first respondent’s contraventions of s.44, s.45, and s.536 of the FW Act. |
| Legislation: Educational Services Teachers Award 2010 Industrial Relations Act 1988 (Cth), ss. 170CA, 170EA(1) |
| Cases cited: ACE Insurance Limited v Trifunovski [2013] FCAFC 3 |
| Applicant: | RAGHAD AL-HAKIM |
| First Respondent: | TOYOOR AL JANNAH PTY LTD ACN 167 552 249 |
| Second Respondent: | LAITH GHUNMAT |
| Third Respondent: | AHLAM ALJARADAT |
| File Number: | SYG 234 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 14 November 2017, 15 November 2017 |
| Date of Last Submission: | 19 December 2017 |
| Delivered at: | Sydney |
| Delivered on: | 9 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Duc |
| Solicitors for the Applicant: | Attia Lawyers and Consultants |
| Counsel for the Respondents: | Ms M Wilson |
| Solicitors for the Respondents: | Paul Murphy & Associates |
DECLARATIONS
From 27 April 2015 until 27 December 2015 the applicant was an employee of the first respondent and worked an average of 25 hours a week at the rate of $25 an hour net of tax; and from 28 December 2015 to 30 September 2016 the applicant was a full-time employee of the first respondent.
The first respondent contravened s.44 of the Fair Work Act 2009 (Cth) (FW Act) by failing to pay to the applicant, contrary to s.90(2) of the FW Act, when the applicant’s employment ended with the first respondent on 30 September 2016, annual leave that had accrued but not taken during the applicant’s employment with the first respondent in the period from 27 April 2015 to 27 December 2015.
The first respondent contravened s.45 of the FW Act by failing, contrary to cl.18.2 of the Educational Services Teachers Award 2010, to make superannuation contributions to a superannuation fund for the benefit of the applicant as would have avoided the first applicant being required to pay the superannuation guarantee charge under the Superannuation Guarantee (Administration) Act 1992 (Cth).
The first respondent contravened s.536 of the FW Act by failing to provide a payslip to the applicant within one working day on each occasion the first respondent paid the applicant an amount in relation to the performance of work.
The second and third respondents were each involved in the first respondent’s contraventions referred to in declarations 2, 3, and 4.
ORDERS
The applicant’s claims based on the first respondent’s alleged contraventions of s.340(1) and s.357(1) of the FW Act are dismissed.
By 23 November 2018 the applicant and the respondents provide to the associate of Judge Manousaridis a draft of the orders it is submitted should be made to give effect to the reasons for judgment on the basis of which declarations 2, 3, and 4, have been made.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 234 of 2017
| RAGHAD AL-HAKIM |
Applicant
And
| TOYOOR AL JANNAH PTY LTD ACN 167 552 249 |
First Respondent
| LAITH GHUNMAT |
Second Respondent
| AHLAM ALJARADAT |
Third Respondent
REASONS FOR JUDGMENT
Introduction
In this proceeding the applicant, Ms Al-Hakim, claims that, contrary to s.340 of the Fair Work Act 2009 (Cth) (FW Act), the first respondent (TAJ) took adverse action against Ms Al-Hakim by dismissing her, or otherwise inducing her to resign, from her employment with TAJ because Ms Al-Hakim complained or made an inquiry in relation to her employment.
Ms Al-Hakim also claims that:
a)from 27 April 2015 to around 30 September 2016 (relevant period) she was an employee of TAJ, and that her employment was covered by the Educational Services Teachers Award 2010 (ESTA);
b)from 27 April 2015 until around November 2015 TAJ purportedly engaged Ms Al-Hakim as an independent contractor and, contrary to s.357 of the FW Act, misrepresented to her that the contract under which she would be, and was, engaged was one under which Ms Al-Hakim would work, and did work, as an independent contractor;
c)TAJ failed to pay to Ms Al-Hakim benefits to which she was entitled as an employee under the ESTA and, for that reason, TAJ contravened s.45 of the FW Act;
d)TAJ failed to pay to Ms Al-Hakim annual leave to which she was entitled both under the ESTA and under s.90 of the FW Act and, for that reason, TAJ contravened s.45 and s.44 of the FW Act; and
e)TAJ contravened s.536 of the FW Act by failing to provide to Ms Al-Hakim payslips within one working day on each occasion it paid to Ms Al-Hakim an amount in relation to the performance of work.
Finally, Ms Al-Hakim claims the two directors of TAJ, being the second respondent, Mr Laith Ghunmat, and the third respondent, Ms Ahlam Aljaradat, were involved in TAJ’s contraventions of the FW Act.
The respondents answer Ms Al-Hakim’s claims as follows:
a)TAJ did not dismiss Ms Al-Hakim, or otherwise induce Ms Al-Hakim to resign from her employment; Ms Al-Hakim ended her employment with TAJ by resigning voluntarily.[1]
b)From 27 April 2015 until 21 March 2016 Ms Al-Hakim was engaged as a contractor.[2]
c)Whether or not Ms Al-Hakim was an employee throughout the relevant period the ESTA applied to Ms Al-Hakim’s employment only after the coming into effect on 21 March 2016 of a written contract of employment she signed on 18 March 2016.[3]
d)TAJ did not represent to Ms Al-Hakim that the contract under which Ms Al-Hakim would be, and was, engaged was one under which Ms Al-Hakim would work, and did work, as an independent contractor.[4] Even if, however, it is found that TAJ made such representation, TAJ did not know, or was not reckless as to whether the contract under which Ms Al-Hakim was employed from 27 April 2015 until 21 March 2016 was a contract of employment rather than a contract for services.[5]
e)Because Ms Al-Hakim was a contractor between 26 April 2015 and 31 December 2015, she did not become entitled to be paid annual leave; or, if she was not a contractor, she was a casual employee and, because of s.86 of the FW Act, she would not have become entitled to the benefits of Part 2-2, Division 6 of the FW Act.[6]
f)TAJ provided payslips to Ms Al-Hakim as required by s.536 of the FW Act.[7]
[1] Respondents [sic] Submissions, [44]-[52]
[2] Defence, [10]
[3] Respondents [sic] Submissions, [32]-[34]
[4] Respondents [sic] Submissions, [10]-[22]
[5] Respondents [sic] Submissions, [23]-[31]
[6] Respondents [sic] Submissions, [36]-[38]
[7] Respondents [sic] Submissions, [40]-[41]
The issues that arise, therefore, are:
a)Was Ms Al-Hakim an employee throughout the relevant period?
b)Assuming she was an employee, did TAJ represent to Ms Al-Hakim that the contract under which she would be, or was, engaged was one under which Ms Al-Hakim would work, and did work, as an independent contractor, and if so, did TAJ not know, or was TAJ not reckless as to whether the contract under which Ms Al-Hakim would be, and was, employed was a contract of employment rather than a contract for services?
c)Whether or not Ms Al-Hakim was engaged as an employee for the entire relevant period, did TAJ fail to discharge any obligations it owed to Ms Al-Hakim as an employer?
d)Did TAJ dismiss Ms Al-Hakim from her employment, as she contends, or did she resign voluntarily, as the respondents contend?
e)To the extent TAJ contravened any civil remedy provision of the FW Act, were either, or both, Mr Ghunmat or Ms Aljaradat involved in TAJ’s contraventions?
During the hearing before me a significant amount of evidence was given in relation to a comment Ms Al-Hakim is alleged to have made to other employees of TAJ, and an investigation TAJ purportedly undertook in relation to that comment. (In these reasons for judgment, I will refer to the alleged comment as “the Alleged Incident”.) There was a hint in the evidence and in submissions that TAJ orchestrated the purported investigation to provide a pretext for the termination of Ms Al-Hakim’s employment. Further, it was put to Ms Al-Hakim in cross-examination, but not accepted by her, that the reason she resigned was because she was aware of an impending investigation by TAJ of the Alleged Incident. In her written submissions, however, counsel for the respondents did not suggest I should make any findings about the Alleged Incident other than that Ms Al-Hakim was aware that the respondents were investigating the Alleged Incident and that Ms Al-Hakim resigned, at least in part, because she did not want to be the subject of any scrutiny about the Alleged Incident.[8] Counsel for the applicant, on the other hand, relies on TAJ’s response to the Alleged Incident as evidence that TAJ planned to dismiss Ms Al-Hakim’s employment.[9] I will set out such evidence in relation to the Alleged Incident as is necessary in that part of these reasons that deals with Ms Al-Hakim’s claims based on s.340 of the FW Act.
[8] Respondents [sic] Submissions, [66]
[9] On 24 November 2017 counsel for Ms Al-Hakim filed a document titled “Applicant’s Submissions” and on 27 November 2017 filed an identically titled document. The later document is identical to the first-mentioned document other than that it includes two additional paragraphs. I have proceeded on the assumption that counsel for Ms Al-Hakim intended that the second-mentioned document stand in place of the first-mentioned document. It would be convenient to here record that on 19 December 2017 counsel for Ms Al-Hakim filed a document titled “Submissions in Reply”.
Approach
To be in a position to consider the issues I have identified, it is necessary that I first identify the relevant facts. I propose to do that largely by setting out in narrative form the facts as they are deposed to in affidavits made by Ms Al-Hakim, Mr Ghunmat, and Ms Aljaradat, identifying any conflict of evidence, and making findings, where necessary, where there is a conflict. I will then set out my principal findings, and consider each of the issues in light of those findings.
Evidence and findings
Ms Aljaradat and Mr Ghunmat are husband and wife. In 2009, after Ms Aljaradat left her employment as an academic at a university, she and Mr Ghunmat opened a cultural centre (Centre). Ms Aljaradat and Mr Ghunmat there provided lessons in English, Arabic, and Islamic studies.[10]
[10] Affidavit of Mr Ghunmat 27.10.2017, [10]
In April 2014 Ms Aljaradat and Mr Ghunmat moved the Centre to larger premises, and changed their business model from a charity to a business.[11] They incorporated TAJ and began to operate the Centre through TAJ.
[11] Affidavit of Mr Ghunmat 27.10.2017, [13]
In May 2015 TAJ applied for a licence to operate the Centre as a before-and-after school care centre for six to twelve year olds. TAJ was granted a licence for twelve months.[12] In November 2015 TAJ applied to vary the licence to remove the twelve-month term, and to permit TAJ to operate the Centre as a childcare provider for three to five year olds.[13] By letter dated 18 March 2016 the New South Wales Department of Education approved TAJ’s application to remove the twelve-month term of its current licence and to operate as a childcare centre.[14]
[12] Affidavit of Mr Ghunmat 27.10.2017, [17]
[13] Affidavit of Mr Ghunmat 27.10.2017, [19]
[14] Affidavit of Mr Ghunmat 27.10.2017, [21]; annexure “C”
24 April 2015 – Ms Al-Hakim is interviewed by respondents
According to Ms Al-Hakim, on 24 April 2015 she attended an interview with Ms Aljaradat and Mr Ghunmat. At that time Ms Al-Hakim had recently moved to Sydney from Perth where she had worked as a primary school teacher. She held a master’s degree in primary education and teaching.[15] According to Ms Al-Hakim a conversation to the following effect occurred:[16]
Mr Ghunmat: You start on Monday. Come in from 9:30 [am] to 2:30 [pm] Monday to Friday. So we are giving you 25 hours a week but you will be paid according to the hours you work. We won’t be paying you if you go on leave for whatever reason. We won’t be paying sick leave either. If we like your work, we can put you on full time work.
Ms Al-Hakim: Is all of this by the books? Is it all legal?
Ms Ghunmat: Yes it is legal. We will be paying tax. You will get $25 after tax.
[15] Affidavit of Ms Al-Hakim 25.09.2017, [2]
[16] Affidavit of Ms Al-Hakim 25.09.2017, [5]
The effect of this conversation does not entirely accord with the conversation pleaded in the statement of claim. Ms Al-Hakim there alleges Ms Aljaradat said words to the effect:[17]
Start on Monday. Come in from 9:30 [am] to 2:30 [pm], Monday to Friday. You will be paid according to the hours you work.
You are on contract working casually. We won’t be paying you if you go on leave for whatever reason. We won’t be paying sick leave either.
[17] Statement of claim, [8(ii)]
In their defence the respondents admit Mr Ghunmat and Ms Aljaradat interviewed Ms Al-Hakim at TAJ’s offices;[18] but they deny Ms Aljaradat said words to the effect the statement of claim alleges she said.
[18] Statement of claim, [8(i)]; Defence, [8]
Mr Ghunmat does not in his affidavit refer to Ms Al-Hakim’s affidavit; and he does not refer to having any meeting with Ms Al-Hakim. Mr Ghunmat only deposes that the “Centre entered into a contract with the Applicant . . . on 27 April 2015, as a language tutor”, and annexes what Mr Ghunmat says is a “copy of the Applicant’s contract”.[19] The document Mr Ghunmat annexes to his affidavit purports to be a letter dated 24 April 2015 addressed to Ms Al-Hakim which is as follows:
Welcome aboard to our team! We are pleased to have you working with us as an educational tutor contractor. You were selected due to the attributes that you displayed that appear to match the qualities we look for; your experience and vision will be a great asset to our community college. We need your own ABN, copy of your ID, Qualifications and work with children chick [sic].
We are looking forward to seeing you in the future to grow and develop into an outstanding employee. We hope that you will find your work to be rewarding, challenging, and meaningful.
We will expect your best each day. Know that we are concerned about your development. The keys to your success will be being dependable, reliable, showing openness, follow-through, attentiveness, supervision, documentation, and following all policies and procedures. While doing these things you will be successful with Toyoor Al Jannah Community College. Your professional growth is of utmost concern for us, because if you are growing our college will grow as well.
Please take your time and review development plan and policies so that you can know what is expected and make a positive contribution. Again, we look forward to seeing you grow as a professional.
[19] Affidavit of Mr Ghunmat 27.10.2017, [15]; annexure “A”
Although Mr Ghunmat does not in his affidavit refer to meeting with Ms Al-Hakim on 24 April 2015 or at any other time before TAJ engaged her, under cross-examination he referred to having such a meeting, and also gave evidence of what was said at the meeting. Mr Ghunmat gave the following evidence:[20]
[20] T82.35
Now, the applicant never provided an ABN to you, did she?‑‑‑No. I – I – no, she never.
No. And you never looked up any government website or made any – you never looked up any website or ‑ ‑ ‑?‑‑‑No. In the interview – in the interview she ask us that she want to work as a subcontractor. Why? Because she is running her own family day care. When you run a family day care you have to have ABN number. And you get that from the office. You get that from the government. So you have to have ABN number if you want to run a family day care. It’s the law. Like, it’s the – the national law. Okay. Then she asked me, “Can I use this ABN number to this contract?” I told her, “I don’t know.” I was just establishing my business and I just had this form, online form, the welcome letter.
So you didn’t actually ask her for her ABN?‑‑‑I did ask her in the – the – the email ‑ ‑ ‑
Right?‑‑‑ ‑ ‑ ‑ but she asked me if she can use her ABN from the family day care.
Also under cross-examination Mr Ghunmat said that what he describes in his affidavit as a contract was based on a template he found online,[21] by searching Google, and he “just added the ABN and the . . . ID”.[22]
[21] T85.5
[22] T85.30
Ms Aljaradat also does not in her affidavit refer to Ms Al-Hakim’s affidavit. All Ms Aljaradat says is that “[i]n April 2015 we found the Applicant, Raghad Al-Hakim, through Max Employment (an employment provider). The Applicant told us she was a qualified teacher”.[23] Under cross-examination, however, Ms Aljaradat denied Mr Ghunmat said words to the effect that “[w]e won’t be paying you if you go on leave for whatever reason”, that although she could not remember whether Mr Ghunmat said “[w]e won’t be paying any sick leave”, Ms Aljaradat said she could not remember exactly, but “I can remember that we agreed to be a contractor and she can get all of her rights as a contractor”.[24]
[23] Affidavit of Ms Aljaradat 27.10.2017, [12]
[24] T186.35
Ms Al-Hakim denies she was given any introductory letter requesting her ABN;[25] and she deposes she “was never given a contract”.[26] Ms Al-Hakim said her hourly rate of $25 did not change.[27]
[25] Affidavit of Ms Al-Hakim 09.11.2017, [34]
[26] Affidavit of Ms Al-Hakim 25.09.2017, [6]
[27] T60.15
I do not accept the evidence Mr Ghunmat gave in cross-examination that during the meeting of 24 April 2015 Ms Al-Hakim said she wanted to work as a subcontractor because she was running her own family day care, and asked whether she could use the ABN that she used with her family day care.
a)First, neither Mr Ghunmat nor Ms Aljaradat depose in their affidavits that during that meeting, or at any other meeting, Ms Al-Hakim asked whether she could be a subcontractor and use an ABN number she used for operating a family day care centre.
b)Second, counsel for Ms Aljaradat did not seek leave to ask Ms Aljaradat questions in chief about whether during the meeting of 24 April 2015 Ms Al-Hakim asked whether she could be a subcontractor and use an ABN number she used for operating her family day care centre. Had Ms Al-Hakim said words to that effect, it is reasonable to expect that Ms Aljaradat – who gave evidence after Mr Ghunmat – would have been asked to give evidence about it.[28]
c)Third, there is no evidence that Ms Al-Hakim provided to the respondents any ABN or submitted any document to the respondents that contained any ABN with which she was associated.
d)Fourth, Ms Al-Hakim annexed to her first affidavit a document titled “PAYG payment summary – individual non-business” for the year ending 30 June 2016 recording that for that period TAJ had retained tax in relation to Ms Al-Hakim.[29] This document covers a period that includes 1 July 2015 to 18 March 2016, being the date on which Ms Al-Hakim signed her contract of employment. If Mr Ghunmat and Ms Aljaradat truly believed TAJ engaged Ms Al-Hakim as a contractor, there would have been no need for TAJ to withhold tax and prepare and submit to the Australian Taxation Office a document recording that fact for the entire twelve-month period ending on 30 June 2016. The “PAYG payment summary” also supports Ms Al-Hakim’s recollection of the conversation, and in particular her recalling Ms Ghunmat stating that “[w]e will be paying tax”.
e)Fifth, it is implausible that Ms Al-Hakim would have accepted to work five days a week between the hours of 9:30 am and 2:30 pm if she was operating a family day care centre; and it is equally implausible that Mr Ghunmat or Ms Aljaradat would have offered Ms Al-Hakim to work at the Centre if they had been told Ms Al-Hakim operated her own family day care centre.
[28] See Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at page 418 per Handley JA: “There appears to be no Australian authority which extends the principles of Jones v Dunkel to a case where a party fails to ask questions of a witness in chief. However, I can see no reason why those principles should not apply when a party by failing to examine a witness in chief on some topic, indicates 'as the most natural inference that the party fears to do so'. This fear is then 'some evidence' that such examination in chief 'would have exposed facts unfavourable to the party'; see Jones v Dunkel at 320-321 per Windeyer J.”
[29] Affidavit of Ms Al-Hakim 25.09.2017, [10], annexure “RA-1”
I also do not accept that a document to the effect of that annexed to the affidavit of Mr Ghunmat, which he describes as “the Applicant’s contract”, was sent to Ms Al-Hakim. First, the letter does not refer to matters it is reasonable to expect a contract would refer to, and in particular the rate of pay and hours. Second, although the copy letter records what appears to be Ms Al-Hakim’s email address, the respondents have not produced any document which contains an email header that identifies the email address to which it was sent, from whom it was sent, and the time and day on which it was sent. Third, as I have already noted, TAJ retained tax for a period that included a period before Ms Al-Hakim signed a contract of employment on 18 March 2016. Fourth, the letter is internally inconsistent. At the beginning the letter refers to Ms Al-Hakim working as “an educational tutor contractor”; yet in the following paragraph the letter states TAJ is looking forward to Ms Al-Hakim developing into “an outstanding employee”.
I find, therefore, that there was a meeting between Ms Al-Hakim, Mr Ghunmat and Ms Aljaradat on 24 April 2015; that Mr Ghunmat or Ms Aljaradat or both offered that Ms Al-Hakim work at the Centre between 9:30 am and 2:30 pm five days a week; that she would be paid at the hourly rate of $25 for actual work performed net of tax; but she would not be entitled to any leave or sick pay. I have doubts that at the meeting Ms Al-Hakim asked whether what was being offered was “by the books” and legal. It is unnecessary, however, to make any finding about whether Ms Al-Hakim said words to that effect because nothing I have to determine turns on whether Ms Al-Hakim said such words.
Work and payment for work performed by Ms Al-Hakim up to March 2016
Ms Al-Hakim says she “accepted the job” after which she gave her “TFN, . . . Bank account details [and] superannuation documents”.[30] Ms Al-Hakim deposed she consistently worked five hours each day from 9:30 am to 2:30 pm. [31] Under cross-examination, however, Ms Al-Hakim said that after the first two weeks her hours began to change, and this occurred when she began to tutor students.[32] Ms Al-Hakim described her position, and I find that she worked as a “pre-school teacher” where she taught Arabic letters, numbers, Quranic recitation, and English classes for pre-school aged students.[33] Under cross-examination, Mr Ghunmat accepted Ms Al-Hakim worked on TAJ’s premises, and TAJ provided her with a computer, pens, and paintbrushes for use in the classroom.[34]
[30] Affidavit of Ms Al-Hakim 25.09.2017, [6]
[31] Affidavit of Ms Al-Hakim 25.09.2017, [6]
[32] T60.5
[33] Affidavit of Ms Al-Hakim 09.11.2017, [22]
[34] T86.35
According to Mr Ghunmat, Ms Al-Hakim commenced working as a “contractor”; she was paid $27 an hour “depending on the load of her tutoring hours”; and the parents paid TAJ for the tutoring, and “we would pay” Ms Al-Hakim.[35] In his affidavit, as originally filed, Ms Ghunmat deposed that TAJ paid Ms Al-Hakim “based on the invoices she gave us”. In evidence in chief, however, Mr Ghunmat changed this part of his affidavit by deleting the words “based on the invoices she gave us” which appeared in paragraph 16 of his affidavit;[36] and under cross-examination Mr Ghunmat said “I gave her invoices based on . . . . the hours she worked during the fortnights [a]nd I would transfer the money to her bank account”.[37]
[35] Affidavit of Mr Ghunmat 27.10.2017, [16]
[36] T79.40
[37] T89.40
Mr Ghunmat annexed to his affidavit a bundle of what he describes as “payment slips” (pre-2016 payslips).[38] There are 16 documents each titled “Payment Slip”, and each of which records a payment to “Contractor: Raghad Al-Hakim”. The payslips cover the period 5 May 2015 to 23 December 2015. They each contain an ABN, which I infer is the ABN for TAJ, the hours worked, a rate of $27, a description of the work, namely, “Tutoring teacher”, and a number next to the words “Total Amt.”. The hours worked recorded in the payslips vary from payslip to payslip; and the hours in each payslip appear to have been calculated by dividing the number that appears next to the word “Total Amt.” by 27. For example, the payslip dated 5 May 2015 records “$375.00” as the “Total Amt.”, and the hours worked as “13.8888”; the payslip dated 17 June 2015 records “$1,300.00” as the “Total Amt.”, and the hours worked as “48.1481”; and the payslip dated 4 November 2015 records “$1,450.00” as the “Total Amt.”, and the hours worked as “53.7037”. It is inherently unlikely that Ms Al-Hakim recorded the hours she worked in units of ten-thousandths of an hour. Another feature of the payslips is that, with the exception of the three payslips (those dated 21 May 2015, 8 June 2015, and dated 23 December 2015), the number recorded next to the words “Total Amt.”, when divided by 25, yields a whole number. That may suggest that the amounts stated in those payslips reflect amounts TAJ paid to Ms Al-Hakim, and the amounts have been calculated by reference to an hourly rate of $25.
[38] Affidavit of Mr Ghunmat 27.10.2017, [16]; annexure “B”
Mr Ghunmat also annexes to his affidavit documents he describes as “payslips” (post-2015 payslips).[39] The post-2015 payslips consist of documents that do not contain the word “payslips”, and cover the period from 28 December 2015 to 2 October 2016. Each document records a payment of $2,500 and, when considered together, the documents record a payment in that amount every fortnight. Mr Ghunmat deposed that “employees received a paper payslip in their locker and could look up their payslip online”.[40]
[39] Affidavit of Mr Ghunmat 27.10.2017, [34]; annexure “F”
[40] Affidavit of Mr Ghunmat 27.10.2017, [34]
In her affidavit Ms Aljaradat deposed that Ms Al-Hakim came to work as a contractor where she tutored children in English and school subjects, TAJ “booked students for tutoring sessions with” Ms Al-Hakim, she “would then tutor the child, or children, and give the Centre an invoice”, and the amount of money she received “varied depending on the number of children who attended for tutoring”.[41] This part of Ms Aljaradat’s affidavit is inconsistent with the evidence Mr Ghunmat gave that it was he, not Ms Al-Hakim, who prepared invoices for the work Ms Al-Hakim performed.
[41] Affidavit of Ms Aljaradat 27.10.2017, [13]
In evidence given in cross-examination Ms Aljaradat said that Ms Al-Hakim did not provide her with invoices because “on a fortnightly base [sic], she come to me and tell me how many hours she work, then we transfer the money to her account according to the numbers of the hours”.[42] Ms Aljaradat also said that when she used the word “invoice” in paragraph 13 of her affidavit, she intended to mean Ms Al-Hakim’s “just telling me . . . how many hours did she work for with me”.[43] This evidence is also inconsistent with Mr Ghunmat’s evidence that he prepared invoices in relation to the work Ms Al-Hakim undertook. Also under cross-examination, Ms Aljaradat said Ms Al-Hakim was provided with payslips. She gave the following evidence:[44]
[42] T187.25
[43] T187.35
[44] T187.5
You didn’t provide any payslips – you, personally, didn’t provide any payslips?‑‑‑Could you please clarify if you ask me as Ms Ahlam, as a – I’m the representative of ..... – or, personally, as Ahlam?
As a director of the business?‑‑‑Yes.
You provided payslips?‑‑‑Yes.
How did you do that?‑‑‑In her locker. In a fortnightly base.
The applicant ‑ ‑ ‑?‑‑‑As soon as we pay her, we put in her locker.
The applicant says she never got the payslips?‑‑‑That’s what she said.
I find that on being engaged, Ms Al-Hakim worked at the Centre for hours that varied from day to day, and was paid at the hourly rate of $25 net of tax. For reasons I give later, I also find that she worked at the Centre on this basis until 27 December 2015. I find that Ms Al-Hakim recorded in some way the hours she worked at the Centre, and she was paid on the basis of the hours she recorded. I do not accept that TAJ prepared invoices purportedly issued by Ms Al-Hakim to TAJ that reflected the hours she worked. Had such invoices been prepared it is reasonable to expect that they would have been produced, or an explanation given why they had not been produced. No invoices have been produced, and no explanation has been given for their non-production. I also do not accept that the pre-2016 payslips were created at the time Ms Al-Hakim was paid by TAJ; or that the pre-2016 payslips were given to Ms Al-Hakim, including by their being placed in Ms Al-Hakim’s locker. Nor do I accept that which the pre-2016 payslips purport to record, namely, that Ms Al-Hakim was paid at the rate of $27 an hour. The principal reason I am not satisfied of these matters is the units of hours each pre-2016 payslips purports to record Ms Al-Hakim worked. As I have already noted some of these hours are recorded in units of ten-thousandths of an hour. It is inherently unlikely that Ms Al-Hakim would have recorded her hours in such minute units; and I cannot exclude as a real possibility that the hours recorded on the payslips were calculated by dividing the amounts TAJ paid Ms Al-Hakim by 27 (being what the respondents contend was the hourly rate at which Ms Al-Hakim was paid). I also find it implausible that Ms Aljaradat or Mr Ghunmat would provide payslips to Ms Al-Hakim only by placing them in her locker without on any one occasion having provided a payment slip in person to Ms Al-Hakim. Finally, as I set out later in these reasons, on 30 August 2016 Ms Al-Hakim sent to Ms Aljaradat a text requesting payslips.[45]
[45] Affidavit of Ms Al-Hakim 25.09.2017, [47], annexure “RA-4”
Given these findings, and in particular my findings in relation to the pre-2016 payslips, I cannot be satisfied that the respondents created any of the post-2015 payslips on the dates they bear or, if they were so created, they were provided to Ms Al-Hakim within one day of her being paid. There is, however, an additional reason for doubting that any of the post-2015 payslips were created on the dates they bear. Each of the post-2015 payslips records on a cumulative basis the tax withheld from the payments they record were paid to Ms Al-Hakim. The last post-2015 payslip for the year ending 30 June 2016 shows a total of $7,020 was deducted for tax. The “PAYG payment summary” to which I have already referred, however, records that for the year ended 30 June 2016 TAJ had withheld tax of $5,338. Further, last post-2015 payment slip for the year ended 30 June 2016 records that a gross total of $32,500 was paid to Ms Al-Hakim for the period from 28 December 2015 to 26 June 2016. The “PAYG payment summary”, on the other hand, shows that for the year ended 30 June 2016 TAJ paid Ms Al-Hakim a gross amount of $25,788.
Discussions about alteration of relationship
According to Ms Al-Hakim, on or about 20 November 2015 she and another person approached Mr Ghunmat and Ms Aljaradat, and a conversation to the following effect occurred:[46]
Ms Al-Hakim: We want to leave because we don’t get time off or any leave for public holidays.
Mr Ghunmat: We got approval to be a child care centre. So when we get government funding, things will change. We’ll keep the current arrangements until the new contracts until [sic] the first term next year. We need you to work full time from now as we have a lot to do to get the centre ready for next year. At the beginning of the new school year we will give you the full time contract.
[46] Affidavit of Ms Al-Hakim 25.09.2017, [15], [16]
In early 2016 Mr Ghunmat requested Ms Al-Hakim to do the work of an “Education Quality Improvement Officer” and “lead the reviewing and implementing programs from the National Quality Framework in the curriculum”.[47] In January and February 2016 Ms Al-Hakim said to Mr Ghunmat and Ms Aljaradat words to the effect of why it was taking so long to draft a workplace agreement because it “was meant to be done at the beginning of the term”.[48]
[47] Affidavit of Ms Al-Hakim 25.09.2017, [18]. Although not the subject of evidence before me, I find I am at liberty to take judicial notice of what is the “National Quality Framework”. That “is the result of an agreement between all Australian governments to work together to provide better educational and developmental outcomes for children using education and care services”. The “National Quality Standard (NQS) is a key aspect of the NQF and sets a national benchmark for early childhood education and care, and outside school hours care services in Australia.” Accessed on 18 October 2018 but a snapshot of the website as at 27 February 2016
[48] Affidavit of Ms Al-Hakim 25.09.2017, [19]
Neither Mr Ghunmat nor Ms Aljaradat have contradicted Ms Al-Hakim’s accounts of her conversation with them, and I find a conversation to the effect deposed by Ms Al-Hakim occurred. I also find that at some time before 18 March 2016 when she signed her contract of employment to which I refer below, Ms Al-Hakim began to work as a full-time employee. There are two matters on the basis of which it is open to me to find the date from which Ms Al-Hakim commenced to work full time. One is the post-2015 payslips. The first post-2015 payslip covers the period from 28 December 2016 to 10 January 2016, and it records 38 hours and an annual salary of $32,500,[49] being half the salary provided for by the employment contract Ms Al-Hakim signed on 18 March 2016. The second matter is that, on my findings of what was discussed at the meeting of 22 September 2016 (which I set out later in these reasons), Ms Al-Hakim and Ms Aljaradat assumed Ms Al-Hakim had accrued three weeks of annual leave, and that Ms Al-Hakim had taken two weeks of that leave. That is consistent with the first post-2016 payslip that records Ms Al-Hakim commenced as a full-time employee on 28 December 2015. I find, therefore, that Ms Al-Hakim commenced full-time work with TAJ on 28 December 2015.
[49] Affidavit of Mr Ghunmat 27.10.2017, [34]; annexure “F”
Employment contract and role under that contract
On 18 March 2016 Ms Al-Hakim signed a contract of employment with TAJ under which she was employed in the position of “Education and Quality Improvement Leader”.[50] Clause 2.2 of the contract provided that Ms Al-Hakim’s conditions of employment would be in accordance with the terms of the contract and the industrial instrument named in Item 5, namely, the ESTA.
[50] Affidavit of Mr Ghunmat 27.10.2017, [23]; annexure “D”
According to Ms Al-Hakim the duties she performed included teaching children, creating programs and lesson plans from the curriculum, playground duties, monitoring and reporting on the children’s progress to their parents, and preparing and submitting reports to “ACECAQ”.[51] Under cross-examination Ms Aljaradat said that Ms Al-Hakim’s primary duties were teaching children, creating programs and lesson plans for the curriculum, playground duties, acting as the education and quality improvement leader, and tutoring children.[52]
[51] Affidavit of Ms Al-Hakim 25.09.2017, [26]. The “ACECQA” is the Australian Children’s Education & Care Quality Authority
[52] T202.40
On 9 July 2016 Ms Al-Hakim married and she and her husband went to Malaysia for two weeks. Ms Al-Hakim returned to work in late July 2016.[53]
[53] Affidavit of Ms Al-Hakim 25.09.2017[39]
Evidence of complaints or inquiries
According to Ms Al-Hakim, she made a number of complaints to or inquiries of Mr Ghunmat or Ms Aljaradat about a number of matters:
a)In around November 2015 Ms Al-Hakim said to Ms Aljaradat: “I am not being given payslips, superannuation, annual leave entitlements or having proper tax paid”.[54]
b)On 15 November 2015 Ms Al-Hakim had a conversation with Ms Aljaradat in which she said that her fortnightly payments are late, and that “[w]e need to talk about a proper employment contract”.[55]
c)In January or February 2016 Ms Al-Hakim complained to Mr Ghunmat that she “was still not in receipt of any payslips”, to which Mr Ghunmat said: “Give us more time, we’ll have the agreement done by the end of term 1. We’ll fix everything then”.[56]
d)On or about 25 April 2016 Ms Al-Hakim said to Ms Aljaradat: “Mrs Ahlam I need the payslips soon. I want to apply for the credit card I told you about. I need it to pay my expenses and book my hotels on my holiday”.[57]
e)On 1 May 2016 Ms Al-Hakim said to Ms Aljaradat she was “checking my superannuation and I realise I am not getting paid Super. Can you confirm if there is a problem with them? If you can give me the payslips, I can follow it up for you”. Ms Aljaradat said “we’re gonna [sic] get it done”.[58]
f)On 10 August 2016 Ms Al-Hakim messaged Ms Aljaradat enquiring “when are we getting our tax return and is the super going to be updated soon?”, and also making enquiries about leave to travel to Egypt at the end of the year. Ms Al-Hakim said: “And the last thing was for the end of year we have to go to Egypt for three weeks. I’ve taken 10 business days and have another 10 business days to go for the holidays. So may I use my two weeks then and take the third unpaid [?]”.[59]
g)On 13 August 2016 Ms Al-Hakim had a telephone conversation with Ms Aljaradat in which Ms Aljaradat said Ms Al-Hakim could not take the leave she requested, and Ms Al-Hakim said, among other things: “We don’t have staff. We don’t receive documents that tell us what we get paid or what leave we have. We need to get someone to come in and sort out these issues. I want to take this to Fair Trading. They can clarify for us how things should work like the annual leave. This is not just for me. It’s for the others as well”.[60]
h)On 25 August 2016 Ms Al-Hakim complained she had not received her group certificate.[61]
i)On 30 August 2016 Ms Al-Hakim said to Ms Aljaradat she wanted to remind her “about my payslip and tax return”. She followed up this request by text message in which she said: “Also may I please have payslips for the past three months [?]. I need them for the bank. They told me it needs to show the net amount, tax and super”.[62]
[54] Affidavit of Ms Al-Hakim 25.09.2017, [12]
[55] Affidavit of Ms Al-Hakim 25.09.2017, [13]
[56] Affidavit of Ms Al-Hakim 25.09.2017, [20]
[57] Affidavit of Ms Al-Hakim 25.09.2017, [34]
[58] Affidavit of Ms Al-Hakim 25.09.2017, [35]
[59] Affidavit of Ms Al-Hakim 25.09.2017, [44], annexure “RA-3”
[60] Affidavit of Ms Al-Hakim 25.09.2017, [45]
[61] Affidavit of Ms Al-Hakim 25.09.2017, [46]
[62] Affidavit of Ms Al-Hakim 25.09.2017, [47]; annexure “RA-4”
Ms Aljaradat does not in her affidavit refer to those parts of Ms Al-Hakim’s affidavit in which she deposes to complaints and inquiries. Under cross-examination, however, the complaints and inquiries Ms Al-Hakim said she made were put to Ms Aljaradat, and, except where the complaint was in a text message, Ms Aljaradat denied complaints had been made. Ms Aljaradat’s denials in cross-examination do not lead me to doubt the veracity of Ms Al-Hakim’s evidence that she made the complaints and inquiries she claims she made. First, Ms Aljaradat did not in her affidavit refer to, let alone deny, those parts of Ms Al-Hakim’s affidavit in which Ms Al-Hakim deposed to the complaints and inquiries I have identified above. Second, the documentary evidence supports Ms Al-Hakim’s evidence. I am here referring to the text message Ms Al-Hakim sent to Ms Aljaradat on 10 August 2016. It refers to a tax return, superannuation, and to a request for leave. A text sent from Ms Aljaradat on 12 August 2016 indicates she attempted to contact Ms Al-Hakim by telephone in relation to Ms Al-Hakim’s request for leave. That is a basis for inferring that Ms Aljaradat and Ms Al-Hakim did at the very least have a conversation on 13 August 2016. Ms Aljaradat, however, does not refer to having any telephone conversation with Ms Al-Hakim about leave. I therefore accept Ms Al-Hakim’s evidence about the complaints and inquiries she made.
Events leading to the end of Ms Al-Hakim’s employment
Ms Al-Hakim says that after her conversation with Ms Aljaradat on 13 August 2016 about taking additional leave, she noticed a “big change in the work environment”.[63] On a number of occasions she overheard Ms Aljaradat “bagging me out over everything I did” to other teachers.[64]
[63] Affidavit of Ms Al-Hakim 25.09.2017, [48]
[64] Affidavit of Ms Al-Hakim 25.09.2017, [49]
According to Ms Al-Hakim on 4 September 2016 Ms Al-Hakim attended a meeting on Sunday at the Centre. Most of the meeting was occupied by Ms Aljaradat talking about how the Centre was going, and that she needed to arrange “NexGen to run a training program for” the teachers. The meeting then concluded with Ms Aljaradat stating that another meeting would be held at the same time on a Sunday. Ms Al-Hakim and another teacher asked Ms Aljaradat for a different time on Sunday because 1.30 pm was not ideal for any teacher. Ms Aljaradat responded by stating it was quite selfish of Ms Al-Hakim “to try and change it for everyone else”, and that in “your position you should be telling other staff to attend this meeting instead of trying to change it”. A discussion ensued between Ms Al-Hakim and Ms Aljaradat which ended with the following exchange:[65]
Ms Al-Hakim: I’m happy to attend, but midday on Sunday is always difficult. We aren’t getting paid for this.
Ms Aljaradat: We don’t do things by the law here, you know that. You are all required to attend the meeting. Whoever does not attend there will be repercussions.
[65] Affidavit of Ms Al-Hakim 25.09.2017, [55]
After the meeting Ms Al-Hakim initiated an exchange of text messages with Ms Aljaradat. Ms Al-Hakim said she was “honestly disappointed in the way that today after the meeting Mrs Lina and I were handled”, stating that meeting in the middle of a Sunday was extremely inconvenient, and “we were trying to find something that would work with our situation as well as not spoil the day”. Ms Al-Hakim further said that “the way we were spoken to was inappropriate as we clearly didn’t display an unwillingness to come but were trying to find a time that’s more convenient”.[66]
[66] Affidavit of Ms Al-Hakim 25.09.2017, [56]; annexure “RA-6”
Ms Hakim then deposes to a series of conversations that preceded a meeting she had with Ms Aljaradat on 22 September 2016. Ms Al-Hakim deposes as follows:
a)On 5 September 2016 Ms Aljaradat informed Ms Al-Hakim she would no longer be doing the Quality Improvement plans. She said words to the effect:[67]
[67] Affidavit of Ms Al-Hakim 25.09.2017, [60]
I’m paying you more than everyone else. Now I’m paying extra to get this work done. I really think you need to go part time if you cannot handle the work.
b)A few days later, Ms Al-Hakim was called into Ms Aljaradat’s office and had a conversation in which Ms Aljaradat said that a child’s mother “made a complaint about your teaching style so I’m removing your tutoring duties as of this day forward”.[68]
[68] Affidavit of Ms Al-Hakim 25.09.2017, [63]
c)On 14 September 2016 Ms Al-Hakim had a meeting with Ms Aljaradat in which words to the following effect were spoken:[69]
[69] Affidavit of Ms Al-Hakim 25.09.2017, [64]
Ms Aljaradat: Ever since you married, your performance has been very poor. Even Amy says you’ve changed since you married.
Ms Al-Hakim: I don’t understand. EVERY Parent [sic] is complaining about me?
Ms Aljaradat: Yes. EVERY parent is complaining about you. I want to fix up the problem with the lunch break. Sign this piece of paper.
d)Ms Aljaradat put in front of Ms Al-Hakim a piece of paper and asked her to sign it. The letter contained words to the effect that Ms Al-Hakim waived her right to a lunch break. Ms Al-Hakim signed the paper and, at the demand of Ms Aljaradat, signed it from the date of Ms Al-Hakim’s contract.[70] Words to the following effect were then spoken:[71]
[70] Affidavit of Ms Al-Hakim 25.09.2017, [65]
[71] Affidavit of Ms Al-Hakim 25.09.2017, [66]
Ms Al-Hakim: [E]verything I ask for I have to fight for it. And even basic things like a payslip or my tax return or my super payments… I feel like I have to beg for them as well…. You’ve never complained about my work before. Is there anything specific you want to talk about? Why don’t we put down a performance plan so we can address any issues you have[?]
Ms Aljaradat: I dont [sic] have enough time to do that. How many employees do I seem to have? If you can’t see that you’re not doing your job, you need to step down or go part time or else I will fire you. I look after you with your pay but you’re not giving me what I pay for. Why am I keeping you around Raghad?
e)Sometime before 18 September 2016 Ms Al-Hakim said to Ms Aljaradat that she wanted to have a meeting with her “but only with Laith [i.e., Mr Ghunmat] there”.[72]
f)On 18 September 2016 Ms Al-Hakim had a conversation with Ms Aljaradat during which words to the following effect were spoken:[73]
Ms Aljaradat: Why do you want to have a meeting with Laith?
Ms Al-Hakim: Lately I’ve been miserable working here. I don’t feel supported. I’m giving it my best shot and it’s not appreciated. Last time you said a bad word to me.
Ms Aljaradat: I know. But you kind of deserved it because you were slacking off. If you want to work part time I can do part time. Do what you feel is good for you. If you want to resign then resign.
[72] Affidavit of Ms Al-Hakim 25.09.2017, second [66]
[73] Affidavit of Ms Al-Hakim 25.09.2017, [68]
Ms Aljaradat, in her affidavit, does not refer to those parts of Ms Al-Hakim’s affidavit that depose to these conversations. Under cross-examination, however, Ms Aljaradat denied having conversations to the effect deposed by Ms Al-Hakim.[74] Ms Aljaradat, though, said she was happy with Ms Al-Hakim’s performance, “[j]ust there’s a period of time where she was busy with her marriage”, and that Ms Aljaradat “tried to help her through outsourcing someone to help her”.[75] Ms Aljaradat also gave the following evidence:[76]
Ms Al-Hakim then says, “I’m not leaving. You’ve been telling me to go part-time or resign a few times, now. I can’t do that. The workplace has become so poisonous and I feel like you can’t stand me being around”? – That’s not right. There’s some conversation between me and her through text messages and I think you attach it, here. Let me double check for you. Yes, she was complaining about the training session, which held on August, and she was complaining that we should attend for that one. I told her, “Arguing about two hours of training, who also – not appropriates – especially when it comes from our educational and quality improvement leader. I was expecting you to do this training without me asking and give you any instruction. We all work together as a team and arguing” – one second – “and above all, we are a family, especially you, Raghad. Moving forward, if you feel you can’t” – I say that, because, in the previous message, she mentioned that she’s not happy to work with us. She said, “Regardless of the training purpose, the way Miss Lena and I were spoken to, it was unappropriate [sic] in front of all of the teachers. Also, I would like to point out that everything which I was asked to deliver has been delivered and on time. If you feel unhappy with my performance, I have no issues leaving. I’m an open person and when you have an issue with my performance, I’m more than happy to discuss”. That means she’s willing to leave and she’s telling me that through her messages. And that was my answer to her. I told her, “We are family, Raghad, especially you. Moving forward, if you feel you can’t handle your full duties, we can discuss reduce your full-time employment. Alternatively, if you feel our school doesn’t satisfy your ambitions, it’s up to you to decide. When a person that ..... you will always be like a family for me and I do really care about you, Raghad”. In these two messages, there’s some – there’s nothing said that I told her to leave her position or to fire her or – she request.
[74] T181.5-184.5
[75] T194.30
[76] T183.1-T183.25
Although under cross-examination Ms Aljaradat denied that conversations to the effect deposed to by Ms Al-Hakim occurred, evidence Ms Aljaradat gave under cross-examination is consistent with the evidence Ms Al-Hakim gave in her affidavit. I find, therefore, that by August 2016 Ms Aljaradat had formed the view that Ms Al-Hakim was not performing as well as Ms Aljaradat expected her to be performing; that Ms Aljaradat believed this was due to Ms Al-Hakim’s having recently been married; that Ms Aljaradat informed Ms Al-Hakim of these views; that Ms Aljaradat criticised Ms Al-Hakim at a meeting of staff on 4 September 2016 by stating that Ms Al-Hakim was selfish for trying to change the time of the next-scheduled meeting, and that in her position she should be telling staff to attend the meeting at that time rather than attempting to change the time. By that time Ms Al-Hakim felt she was not appreciated or valued; and sometime after 4 September but before 22 September 2016, Ms Al-Hakim expressed these views to Ms Aljaradat. Ms Aljaradat responded to Ms Al-Hakim’s expression of these views by suggesting that Ms Al-Hakim could seek to work part-time or if she wished to resign she should resign. I also find that Ms Al-Hakim requested Ms Aljaradat arrange a meeting with both Ms Aljaradat and Mr Ghunmat.
On 18 September 2016 there was posted on TAJ’s Facebook an advertisement for an early childhood teacher (ECT).[77] Under cross-examination Ms Aljaradat said that the advertisement for an ECT “was on different websites since April 2016”.[78] The respondents have not produced any evidence to support that statement, and I am not satisfied it is correct. Nothing turns, however, on TAJ’s having posted on its Facebook an advertisement for an ECT.
[77] Affidavit of Ms Al-Hakim 25.09.2017, [69]; annexure “RA-10
[78] T195.40
According to Ms Al-Hakim, on 19 September 2016 a staff member, Ms Fatima Lebdah, had approached Ms Al-Hakim and said that Ms Aljaradat told her she intended to replace Ms Al-Hakim.[79] The respondents called Ms Lebdah as a witness, but it was not put to Ms Lebdah that she told Ms Al-Hakim that Ms Aljaradat told her she intended to replace Ms Al-Hakim. Ms Lebdah, however, deposed as follows:[80]
At about this time [i.e., 19 September 2016], one of the parents said words to the effect of “Raghad told us that she is leaving. Do you know anything about that?” I didn’t know what to say because Raghad had not said anything to me about leaving. Some other parents also told me Raghad had told them she was leaving.
[79] Affidavit of Ms Al-Hakim 25.09.2017, [71]
[80] Affidavit of Ms Lebdah 27.10.2017
Ms Al-Hakim says that on 20 September 2016 three or four parents approached Ms Al-Hakim and asked: “who is leaving [?]”, to which she replied “it’s probably me. I’m the only ECT teacher”.[81]
[81] Affidavit of Ms Al-Hakim 25.09.2017, [72]
According to Ms Al-Hakim on 22 September 2016 Ms Aljaradat called Ms Al-Hakim into her office for a “quick word”, and a conversation to the following effect occurred:[82]
[82] Affidavit of Ms Al-Hakim 25.09.2017, [74]
Ms Aljaradat: Why did you go back behind my back and tell parents you were leaving? Now two parents have left and it’s your fault.
Ms Al-Hakim: I didn’t tell them I was leaving. I don’t want to leave. They saw the ad you put up and asked if that was for me. I told them I thought it was for me.
Ms Aljaradat: No. That ad is for me. I am replacing myself to move on from here. Some parents are leaving because you’re leaving.
Ms Al-Hakim: I’m not leaving. You’ve been telling me to go part time or resign a few times now. I can’t do that. But the workplace has become so poisonous, and I feel you can’t stand me being around.
Ms Aljaradat: That’s right. I also feel we can’t work together.
Ms Al-Hakim: I tried to make it work but I’m out of options. Obviously you’re not leaving as you are the manager. If it can’t work what options do we have? Do you want me to leave?
Ms Aljaradat: I already told you, if you want to leave you can. You have a lot of ambition. Maybe you can find a better place than this one. If you feel you can’t handle the work or you want to go part time then you can.
Ms Al-Hakim: Okay. I already told you that I’m not happy with a few things at work. Everything I ask for I need to fight for it. I’m very upset I can’t take my holiday. Everything you ask me to do I did it. There’s nothing wrong with my work. I feel like resigning to be honest.
Ms Aljaradat: Perfect. Put your resignation in writing. I need it for your records.
Ms Al-Hakim: OK. I’ll do that. But I want my notice period to start from today. I need to give you six weeks [sic] notice.
Ms Aljaradat: No don’t bother with that. How much annual leave do you have?
Ms Al-Hakim: Well we agreed I worked three terms because I signed the contract in March. I took two weeks leave. I have one week left.
Ms Aljaradat: Good take your leave from Monday. You’ll be paid for your annual leave. But then don’t come back.
Ms Aljaradat does not in her affidavit refer to this part of Ms Al-Hakim’s affidavit. During cross-examination, however, counsel for Ms Al-Hakim put to Ms Aljaradat parts of the conversation as deposed by Ms Al-Hakim. Ms Aljaradat did not accept Ms Al-Hakim said words to the effect of there was nothing wrong with her work, or that she felt like resigning;[83] and Ms Aljaradat did not accept she said words to the effect that Ms Al-Hakim will be paid for her annual leave, but then don’t bother coming back.[84] In response to counsel putting to Ms Aljaradat that during the conversation Ms Aljaradat said to Ms Al-Hakim words to the effect of “Perfect. Put your resignation in writing. I need it for your records”, Ms Aljaradat said: “I think I told you already the conversation that happened between me and her”.[85] I take that to be a reference to the evidence I have set out in paragraph 42 of these reasons.
[83] T184.20
[84] T184.30
[85] T184.25
Counsel for Ms Al-Hakim submitted I should accept Ms Al-Hakim’s account of the conversation because Ms Al-Hakim’s account of the conversation was not challenged in cross-examination.[86] It is true that the absence of cross-examination “enables the evidence to be regarded by any tribunal of fact with a greater degree of assurance than might otherwise have been the case”; but it would not “be right to conclude that the absence of cross-examination entails the acceptance of the evidence given”.[87] I do not, therefore, accept counsel’s submission to the extent it suggests I am bound or I should accept Ms Al-Hakim’s evidence of what was said at the meeting of 22 September 2016 only because counsel for the respondents did not cross-examine Ms Al-Hakim’s evidence of what occurred at that meeting. Whether or not I should accept Ms Al-Hakim’s evidence depends on my considering all the relevant evidence and the plausibility of Ms Al-Hakim’s account when considered in the context of that evidence.
[86] Applicant’s Submissions, [79]
[87] Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505, at page 507, (Samuels JA, Hutley and Priestly JJA agreeing)
In assessing whether I should accept Ms Al-Hakim’s evidence of the conversation, it is necessary to take into account the following email Ms Al-Hakim sent to Ms Aljaradat on 23 September 2016:[88]
Please accept this email as my resignation from the position of Educational leader, effective notification period starting from today 23/09/2016. My last day at Toyoor Al Jannah will be as discussed next Friday 30/09/2016. Due to pending annual leave of one week I will not be attending the service taking the annual leave as discusses [sic].
I have accepted a position with another school that will further my growth and development in my career. I have enjoyed working at Toyoor Al Jannah and will miss my colleagues.
As I’m aware the super and tax for the previous financial year has not been yet [sic] updated. Please email me back with the date I should be expecting these to be updated.
Again, it has been a pleasure working as a part of Toyoor Al Jannah Community College and best wishes for future success.
[88] Affidavit of Ms Al-Hakim 25.09.2017, [75]; annexure “RA-12”
Also relevant is the following text message Ms Al-Hakim sent to Mr Ghunmat on or, perhaps, shortly before 25 September 2016:[89]
[89] Affidavit of Ms Al-Hakim 25.09.2017, [77]; annexure “RA-13”
. . . as you know I have resigned. However there are a few things which I feel obliged to let you know about that’s why I tried having a meeting with you before I left. Many students are leaving the centre and many more will be leaving the centre I believe if change doesn’t occur soon. Mrs Ahlam is blaming students leaving on me. However please call froggy college and ask them what parents from Toyoor Al Jannah college have been saying about the centre? I suggest an anonymous survey is handed to parents and teachers to let them say what the real issues are with no fear. I hope that my message will prompt a through [sic] look at the practices and hopefully Toyoor Al Jannah will thrive. I have no interest in pulling down an organisation I once worked for. I’m going back to primary education and have no reason to be trying to pull students out. I tried to communicate things with Mrs Ahlam but to no avail.
It was lovely working at Toyoor Al Jannah and wish you all the best in the future.
Ms Al-Hakim’s email of 23 September 2016 is entirely consistent with Ms Al-Hakim having had a meeting with Ms Aljaradat on 22 September 2016; that during that meeting Ms Al-Hakim informed Ms Aljaradat she intended to resign, and there was discussion and agreement about the notice Ms Al-Hakim should give to TAJ. I find, therefore, that at the very least Ms Al-Hakim and Ms Aljaradat had a meeting on 22 September 2016; that during the meeting Ms Al-Hakim informed Ms Aljaradat she wished to resign, and Ms Al-Hakim and Ms Aljaradat agreed that Ms Al-Hakim would put her intention to resign in writing, and that, instead of giving six weeks’ notice, Ms Al-Hakim would resign on 30 September 2016 but, instead of working up to that date, Ms Al-Hakim would take the one week’s annual leave that she had accrued.
There are a number of matters, however, that raise doubts about Ms Al-Hakim’s account of her conversation with Ms Aljaradat on 22 September 2016, and the conversations Ms Al-Hakim says she had with Ms Lebdah and with “three or four parents” after TAJ placed an advertisement on its Facebook page. First, although Ms Al-Hakim deposes she was told by Ms Lebdah that Ms Aljaradat intended to replace Ms Al-Hakim with another teacher, and Ms Al-Hakim assumed the advertisement was for a replacement teacher, Ms Al-Hakim does not say she asked Ms Aljaradat about whether it was true that Ms Aljaradat did intend to replace Ms Al-Hakim. Ms Al-Hakim in effect deposes she assumed Ms Aljaradat intended to replace her. On her account, Ms Al-Hakim first communicated her belief to Ms Aljaradat that Ms Aljaradat intended to replace her only after Ms Aljaradat asked Ms Al-Hakim why she told parents she was leaving. That is implausible. If in truth Ms Al-Hakim believed Ms Aljaradat intended to terminate her employment, and if, as Ms Al-Hakim claimed, Ms Al-Hakim did not at that time intend to resign, the likelihood is that Ms Al-Hakim would have asked Ms Aljaradat about Ms Aljaradat’s intentions concerning Ms Al-Hakim’s employment at the Centre.
Third, by 19 September 2016 Ms Aljaradat arranged for a number of employees of TAJ to provide statements relating to the Alleged Incident.[151] There is no evidence that Ms Al-Hakim was aware of these complaints or any investigation in relation to the complaints before she resigned; and there is no suggestion in Ms Al-Hakim’s account of her meeting with Ms Aljaradat on 22 September 2016 that Ms Aljaradat said anything about or even alluded to the Alleged Incident. The evidence shows, and I find, that Ms Al-Hakim first became aware of a complaint in relation to the Alleged Incident when Mr Ghunmat sent a text message on 10 October 2016 in which he stated as follows (errors in original):[152]
As you are aware I’ve contacted a Preliminary “UNOFFICIAL” investigation to stand on the reason behind the termination of your work contact, However. there were a serious allegations and breaches against you.I was hoping to catch up with you to form some kind of “UNOFFICIAL” factual interview before we discuss any further step.
[151] Affidavit of Ms Chabbla, 27.10.2017, [13]; Affidavit of Ms Lebdah, 27.10.2017, [16]; affidavit of Ms Aljaradat 27.10.2017, annexure “B”
[152] Affidavit of Ms Al-Hakim 25.09.2017, [77], annexure “RA-13”, page 61
That Ms Al-Hakim first became aware of any investigation in relation to the Alleged Incident after she resigned is confirmed by Ms Al-Hakim in her affidavit:[153]
Later I exchanged messages with Laith about my employment. I talked to him about the problems with Toyoor Al Jannah over the phone. A few weeks later he insisted that they were the ones who terminated me because of some fake investigation. They wanted me to come back so parents don’t leave the centre.
[153] Affidavit of Ms Al-Hakim 25.09.2017, [77]
Thus, whether or not I accept Ms Al-Hakim’s account of the meeting of 22 September 2016, there is nothing in the evidence before me that suggests Ms Al-Hakim resigned because she was aware or feared or suspected that Ms Aljaradat or Mr Ghunmat would or might investigate the Alleged Incident, and that she might avoid such investigation or the possibility of such investigation by electing to resign from her employment.
On the evidence before me, therefore, I am satisfied that TAJ did not repudiate Ms Hakim’s contract of employment, and it did not otherwise engage in conduct that forced or could reasonably be taken to have forced or could reasonably be said to have caused Ms Al-Hakim to decide to resign. Ms Hakim voluntarily resigned. The consequence of my findings, therefore, is that Ms Al-Hakim’s claim based on s.340 of the FW Act fails.
Work on Sundays
In his written submissions, counsel for the applicant claims Ms Al-Hakim was “forced to work on two Sundays and received no additional payment”.[154] This claim is not pleaded in the statement of claim, and the written submissions do not identify the hours it is claimed Ms Al-Hakim worked on the two Sundays, or the grounds on which Ms Al-Hakim having worked on the Sundays entitled her to any amount under the ESTA. I therefore do not accept a claim based on Ms Al-Hakim’s having worked on two Sundays.
[154] Applicant’s Submissions, [104]
Contravention of s.536 of the FW Act?
Section 536 of the FW Act provides:
(1) An employer must give a payslip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.
(2) The payslip must:
(a) if a form is prescribed by the regulations – be in that form; and
(b) include any information prescribed by the regulations.
The Fair Work Regulations 2009 (Cth) provide for the matters stated in s.536(2)(b) of the FW Act, and these are contained in reg.3.45.
Ms Al-Hakim has given evidence that TAJ did not provide to her a payslip on any of the occasions on which she was paid during her period of employment with TAJ. The respondents claim they provided payslips to her. I have already found that the respondents did not provide any payslips and, for that reason, I am satisfied TAJ contravened s.536 of the FW Act.
Accessorial liability
I have found that TAJ contravened:
a)s.44 of the FW Act by not paying to Ms Al-Hakim at the time she resigned from her employment, as it was required to do by s.90 of the FW Act, leave that had accrued to Ms Al-Hakim during her employment from 27 April 2015 to 27 December 2015;
b)s.45 of the FW Act by not paying superannuation in relation to Ms Al-Hakim throughout the course of her employment; and
c)s.536 of the FW Act by not providing to Ms Al-Hakim payslips within one working day of paying an amount to Ms Al-Hakim in relation to the performance of work.
I next consider whether Ms Aljaradat or Mr Ghunmat or both were involved in TAJ’s contraventions of s.44, s.45, and s.536 of the FW Act. That depends on whether those provisions are “civil remedy provisions” and, if so, whether Ms Aljaradat or Mr Ghunmat were “involved” in TAJ’s contraventions of those provisions. That follows from s.550(1) of the FW Act which provides that a “person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision”.
A person’s being “involved in” for the purposes of s.550(1) of the FW Act is defined in s.550(2) as follows:
A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
Section 550 of the FW Act is “drawn in terms very similar to those of s.75B” of what was known as the Trade Practices Act 1974 (Cth) (TPA) but of what is now the Competition and Consumer Act 2010 (Cth).[155] That means that authorities that have expounded and construed s.75B of the TPA are relevant to the meaning of s.550 of the FW Act; and it is the case that the Federal Court has expounded and construed s.550 of the FW Act by reference to what has been said about s.75B of the TPA.[156] In that context it has been held that “the proper construction of par.(c) requires a party to a contravention to be an intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention”.[157]
[155] Dowling v Kirk & 16 Ors [2007] FMCA 2106 at [24] (Cameron FM, as his Honour then was, speaking of s.728 of the Workplace Relations Act 1996 (Cth) being the equivalent provision of s.550 of the FW Act).
[156] See, for example, Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034 at [950] (Katzmann J)
[157] Yorke v Lucas (1985) 158 CLR 661, at page 670
I am satisfied that Ms Aljaradat and Mr Ghunmat, being the sole directors of TAJ, operated the business of the Centre together, and each was aware of the circumstances in which TAJ’s employees were engaged and paid. I find that each was aware that TAJ made no contribution to any superannuation fund in relation to Ms Al-Hakim, that TAJ paid no annual leave that had accrued to Ms Al-Hakim at the time she resigned from her employment, and that TAJ provided Ms Al-Hakim with no payslips. These findings, which are based on Ms Aljaradat or Mr Ghunmat being the sole directors of TAJ, are further supported by the complaints and inquiries I have found Ms Al-Hakim made. These complaints and inquiries were mostly directed to Ms Aljaradat, but one complaint or inquiry was directed to Mr Ghunmat.
I find, therefore, that Ms Aljaradat or Mr Ghunmat were each involved in TAJ’s contraventions of s.44, s.45, and s.536 of the FW Act.
Disposition and further progress
I propose to make declarations to the effect that TAJ contravened s.44, s.45, and s.536 of the FW Act, order that Ms Al-Hakim’s claims on TAJ’s alleged contraventions of s.340(1) and s.357(1) of the FW Act be dismissed, and direct the parties to provide my associate within fourteen days a draft of orders each party submits I should make, given the findings I have made in these reasons for judgment.
At the time I pronounce my orders I will set the matter down for a directions hearing for the further conduct of the proceeding, including hearing submissions and, if appropriate, evidence, on the question of penalties.
I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 9 November 2018
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