Amar Ezatee v Littore Packers Pty Ltd T/A Littore Packers
[2010] FWA 2601
•31 MARCH 2010
[2010] FWA 2601 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Amar Ezatee
v
Littore Packers Pty Ltd T/A Littore Packers
(U2009/12703)
COMMISSIONER RYAN | MELBOURNE, 31 MARCH 2010 |
Termination of employment.
[1] This decision concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Mr Amar Ezatee alleging that the termination of his employment by Littore Packers Pty Ltd trading as Littore Packers was harsh, unjust or unreasonable.
[2] The application was lodged in Fair Work Australia (FWA) on 8 October 2009.
Decision
[3] I have determined as follows:
[4] Mr Ezatee has been dismissed within the meaning of s.386 of the Act in that Mr Ezatee resigned from his employment because of a course of conduct engaged in by his employer whereby the employer did not pay to Mr Ezatee the wages for all hours worked in each pay period but held some wages to be paid to Mr Ezatee at a later time and whereby the employer paid a flat amount for each and every hour worked by the applicant.
[5] Mr Ezatee’s dismissal was harsh, unjust and unreasonable.
[6] Reinstatement is an appropriate remedy and that an order will be made under s.391(1) of the Act.
[7] It is appropriate in this matter to make an order that the applicant’s continuity of service with the employer is maintained.
[8] It is appropriate to make an order under s.391(3), having taken into account the matters required by s.391(4), that the employer pay to the applicant the amount of $2331.00 for remuneration likely to have been lost because of the dismissal.
[9] Reinstatement is to be in accordance to the following specific conditions:
- Mr Ezatee is employed as a casual employee at Level 3 under the Horticulture Award 2010.
- The ordinary hours of work during the packing season are 43 hours to be worked Monday to Friday. The hours comprise 38 ordinary hours and 5 additional hours paid at the overtime rate. The 5 additional hours are to be worked on the basis of 1 additional hour each day.
- The employer may at their sole discretion offer additional overtime hours to the applicant.
- The applicant is not entitled to work any additional hours that have not been requested or authorised by the employer.
- The ordinary hours of work during the non packing period of the year are to be determined by the employer and may reduce to zero hours in those weeks where the employer cannot usefully employ the applicant.
Recommendation
[10] In order to make the reinstatement effective I strongly recommend to the employer as follows:
- The employer should produce a clear list of duties for the applicant to perform during working hours. These duties would need to be consistent with the evidence given during the proceedings as to the range of duties performed by the applicant, including packing, lifting and stacking cartons on pallets, forklift driving, minor maintenance of gluing machine, loading bins.
- The employer should produce a clear list of duties for the applicant to perform during the 1 hour of overtime to be worked Monday to Friday. These duties should be consistent with the evidence given during the proceedings as to the range of cleaning duties performed by the applicant, including sweeping, cleaning and washing machines, cleaning up water. Given the applicant’s limited understanding of written English the instructions relating to the extra cleaning duties would need to be presented in pictorial form with clear indications of the time required to be allocated to each cleaning task and the sequence in which cleaning tasks are to be performed.
- The employer should, in the presence of at least one other permanent employee, take the applicant through the cleaning procedures which constitute the additional one hour of work each weekday, indicating the sequence of tasks and the level of cleanliness required by the employer and the time required to perform each task.
Reasons for Decision
[11] The applicant was employed as a fruit packer by the respondent on 2 separate occasions. The first being for a period from 2004 to 2007. The second being from 18 August 2008 until on or about 24September 2009.
[12] The applicant resigned from his employment for the reason that the employer had not paid him for all hours worked in the pay week immediately preceding the date of resignation. This was not the first instance of the employer not paying the applicant for all of the hours worked by the applicant in a pay period. A practice had been initiated by the employer whereby in some weeks where the applicant had worked a large number of hours then the employer would pay the applicant for at least the first 43 hours (and sometimes significantly more) but with the pay for further additional hours being held over to be paid at a later date. Once the employer accepted that the applicant was entitled to be paid for the hours claimed to have been worked by the applicant then, in the absence of specific agreement to the contrary, the employer was obliged to pay the applicant the full wages for all hours worked. There was no specific agreement by the applicant to the course of conduct undertaken by the employer to withhold a portion of wages earnt to be paid to the applicant at some later date. In fact the evidence before FWA was that the applicant wanted to be paid each week for all of the hours worked in that week.
[13] The course of conduct engaged in by the employer (the non payment in any week of all of the wages earnt by the applicant) was the direct cause of the resignation of the applicant. Given that the applicant had not been able to get the employer to pay to him all of the wages he had earnt in each week then I am satisfied that the conduct of the employer forced the applicant to resign his employment.
[14] In order to ascertain whether the termination of employment was harsh unjust or unreasonable it is necessary to consider all of the circumstances surrounding the employment of the applicant with the employer.
[15] The applicant migrated to Australia from Iran in 2000 and commenced employment with the respondent in either 2003 or 2004 and worked for them until late 2007 when he returned to Iran for a year.
[16] In August 2008 the applicant returned to Australia and recommenced working for the respondent until the termination of employment subject of this application.
[17] The applicant has limited command of English although his understanding of English is sufficient for him to carry out the duties required by the respondent.
[18] The respondent regards the applicant as a good worker generally and one who has an aptitude to maintain one of the machines used on the packing line. In addition to the applicant’s general duties in undertaking packing related duties, the respondent had specifically required the applicant to undertake one hour of overtime each day Monday to Friday to clean a number of machines used in the fruit packing process.
[19] Additional overtime was also available to the applicant, as with other workers, during the fruit packing season.
[20] The applicant was employed on a casual basis for the fruit packing season with the understanding that little or no work may be available during the non packing season. However the respondent did provide some work for the applicant in the non packing season over the end of 2008 and the beginning of 2009. This non fruit packing work included general labouring type work at other premises of the respondent.
[21] The applicant was specifically engaged to work 43 hours per week Monday to Friday when he was reengaged in August 2008. His rate of pay was agreed to be $18 per hour for each hour worked. This rate which included the casual loading was intended to provide a weekly wage which would properly take into account the 5 hours of overtime to be worked by the applicant each week.
[22] It is clear that at least for the whole of the fruit packing season in 2009 and up until the date of termination of employment that the applicant worked significantly more than 43 hours per week.
[23] In one 3 week period at the height of the fruit packing season the applicant worked in excess of 100 hours each week, and the applicant regularly worked 60 or more hours per week. A portion of these additional hours were overtime hours worked at the direction of the respondent. However a large number of the additional hours worked by the applicant were described by the respondent as being unauthorised hours. The evidence for the respondent made clear that on many occasions the applicant was told to stop working and to go home. The applicant would only stop working and go home when he considered the work finished.
[24] In the three week period where the applicant worked over 100 hours each week (one week the applicant worked 117 hours) the packing plant was running 2 shifts and the applicant was working both shifts and extra hours. The evidence from Mr Littore for the respondent was that whilst some of the extra hours were authorised a significant portion weren’t and that attempts to get the applicant to leave the premises and go home didn’t succeed.
[25] The exchange between the applicant’s solicitor and Mr Littore 1 illustrate this.
[26] Mr Littore also conceded that whilst the applicant could only claim payment for the period recorded on the clock in cards no attempt was made to remove the cards to prevent the applicant coming to work early or remaining at work late when not authorised to do so 2.
[27] Additionally Mrs Littore conceded that no external advice was sought about how the respondent could deal with the issue of the applicant working unauthorised additional hours 3.
[28] The response of the respondent was to pay a portion of the unauthorised additional hours with the normal weekly pay and to withhold a portion for payment to the applicant at a later date. The applicant having worked the hours expected payment in full in the next pay.
[29] The applicant had been given two written warnings from the respondent for working unauthorised extra hours but as Mr Littore conceded 4 the only intention in issuing the warnings was that “I was hoping to make him realise that he just can't come to work when you want and do the amount of hours you're doing.”
[30] An additional factor that made the control of the applicant’s working hours difficult was that the packing sheds were never locked and that there was general access to the property at all hours on all days. The applicant could physically access the workplace whenever he wanted to.
[31] Each of the applicant and the three respondent’s witnesses were truthful in giving evidence. I accept that the respondent did not want the applicant to work all of the hours that the applicant claimed he had worked. I also accept that the witnesses for the respondent told the applicant on numerous occasions not to work when not authorised and not to be at work when not authorised. I accept that the applicant did attend work for the hours recorded on his time cards and that he did so even when told not be at work or not to remain at work.
[32] Whilst the applicant worked a significant number of hours that were not authorised the fact that the employer continued to pay the applicant for the hours worked even after regularly warning the applicant not to work unauthorised hours clearly led the applicant to continue to expect to get paid for all hours worked whether or not such hours were authorised.
[33] The constant payment by the respondent of the unauthorised hours of work of the applicant is a relevant factor in these proceedings. I prefer the evidence of Mr Littore 5 when, under cross examination, he conceded that the applicant was working for the extra unauthorised hours:
“But he has still done 65 hours a week in this period of time, and I'm talking August to October-November. So I'll put it to you again that this work that - this extra 20 hours a week that he did was of benefit to your business. He was working. He was doing jobs?---He was cleaning.”
and
“Of the 70 - approximately - unauthorised hours that he did in those weeks, did he provide any benefit to your business?---Well, he was there, yes.”
When re-examined on the same issue Mr Littore denied that any cleaning work was of benefit to the company 6. He said:
“So how much benefit would you say is cleaning to your business?---No benefit.”
“No benefit?---The amount of cleaning, no, no benefit.”
[34] Given that the respondent specifically engaged the applicant to do 5 hours cleaning a week it is clear that the respondent derived some benefit from the unauthorised extra hours of work by the applicant although the extent of the benefit was not quantified.
[35] There was no dispute between the applicant and the respondent as to whether or not the applicant would be paid for the hours he worked rather the dispute was as to when the applicant would be paid. A secondary issue raised by the applicant during his employment was the rate he was paid.
[36] The $18 per hour rate agreed at the commencement of the employment in August 2008 appeared to have been calculated to ensure that on a weekly basis the rate of $18 per hour for 43 hours would be at least equal to the correct award rate for the first 38 hours plus the correct overtime rate for the additional 5 hours. However once the applicant worked more than 43 hours in any week then the underlying rationale for paying a flat amount of $18 per hour no longer applied. The applicant did raise with the respondent his concern that the flat rate of $18 was incorrect and that he should have been paid at the overtime rate for additional hours.
[37] Both the solicitors for the applicant and the respondent drew to the attention of FWA that the applicant had initiated proceedings in the Victorian Magistrates Court for underpayment of wages and that such proceedings were being contested by the respondent. Whilst the issue of an alleged underpayment was one of the factors which gave rise to the termination of the applicant’s employment it was not necessary for FWA to consider the details of the alleged underpayment.
[38] The Act sets out in s.387 the criteria that FWA must take into account when considering whether a dismissal was harsh, unjust or unreasonable. The language used and the nature of the criteria in s.387 are primarily directed at cases where the employer has actively and deliberately terminated the employment of the employee. The language and criteria of s.387 do not easily fit circumstances where the dismissal is as contemplated by s.386(1)(b) namely that: “the person has resigned from his or her employment, but was forced to do so because of conduct, engaged in by his or her employer.”
[39] However as I am required to take into the account the criteria of s.387 I now consider each of those criteria.
[40] Paragraphs (a), (b) and (c) each relate to the capacity or conduct of the employee as a factor in the dismissal. Each of these 3 criteria are not relevant in the present case.
[41] As to paragraph (d) there was no unreasonable refusal by the employer to allow the applicant to have a support person present to assist at any discussions relating to the dismissal.
[42] Paragraph (e) is not relevant in the present matter as the performance of work by the applicant was not considered to be unsatisfactory by the employer. In fact the evidence was to the contrary.
[43] Paragraphs (f) and (g) which are relevant to the present matter are:
“(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise would be likely to impact on the procedures followed in effecting the dismissal.”
[44] The evidence is clear that the respondent did not have dedicated human resource management specialists and that the respondent was a small to medium sized business. In giving evidence Mrs Littore described herself as the person doing “all the administration in the office” and as the “payroll officer” and that she had been doing this since 2000. Nothing was put to FWA by the respondent that sought to excuse its conduct on the basis of either the size of the respondents business or on the basis that the respondent did not have dedicated human resource management specialists.
[45] It appears that, until the applicant resigned his employment because of the non payment of all hours worked by him, the respondent knew it had a problem but considered that the problem was being appropriately dealt with.
[46] In considering the matters raised in paragraphs 387 (f) and (g) I do not find that they militate against a finding that the dismissal was harsh unjust or unreasonable.
[47] The final criteria in paragraph 387(h) is that I must take into account “any other matter that FWA considers relevant”.
[48] This I have done in considering all of the evidence surrounding the working by the applicant of additional unauthorised hours and the actions of the respondent in relation to raising its concerns with the applicant, paying the applicant for the additional hours, withholding some monies from the pays of the applicant on the basis of paying such monies to him at a later time, paying the applicant a flat amount for all hours worked when the flat amount was calculated to cover only 43 hours per week, the failure of the respondent to take more direct action to stop the applicant working additional unauthorised hours (such as removing the applicant’s time card or seeking external advice) and the actions of the applicant both in continuing to work additional unauthorised hours and in raising with the respondent his concerns about both the method of payment of his wages and the amount of wages paid.
[49] It is the totality of the material considered that leads me to the conclusion that the dismissal of the applicant was harsh, unjust and unreasonable.
[50] Having determined that the dismissal of the application was harsh unjust and unreasonable I now turn to the remedies available.
[51] S.390(3) makes clear that reinstatement is the preferred remedy under the Act. In the present matter reinstatement is appropriate as the evidence given on behalf of the respondent was that the respondent was quite willing to have the applicant return to employment with the respondent.
[52] Where reinstatement is appropriate, as it is in this matter, s.391(1) requires that reinstatement be to the position in which the applicant was employed immediately before the dismissal. An order will be made that the applicant be reinstated into the same position he had prior to the dismissal.
[53] S.391(2) permits FWA to make an appropriate order to maintain the continuity of the applicant’s employment. In the circumstances of this matter I consider it appropriate for such an order to be made.
[54] S.391(3) permits FWA to make any order that FWA considers appropriate to cause the employer to pay to the applicant an amount for remuneration lost, or likely to have been lost, because of the dismissal. I have decided that it is appropriate to make an order under s.391(3). Submissions were made by both the applicant and the respondent on the issue of compensation generally. I have considered those submissions and have done so in light of the requirements of s391(4) and I have decided that the appropriate amount to be paid to the applicant by the respondent is the sum of $2331.00, the amount referred to in the written submission of the respondent.
COMMISSIONER
Appearances:
Mr L Anderson for the Applicant
Mr T Lock for the Respondent
Hearing details:
2010.
Wentworth:
February 16, 17.
1 Transcript at PN825, 826, 850-866, 915- 919
2 Transcript at PN1065-1067
3 Transcript at PN1441
4 Transcript at PN1069
5 Transcript at PN785 and PN867
6 Transcript at PN1054-1055
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