Andre Smirnov v Stephen Blignaut
[2012] FMCA 952
•19 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ANDRE SMIRNOV v STEPHEN BLIGNAUT & ANOR | [2012] FMCA 952 |
| INDUSTRIAL LAW – Small claims jurisdiction – approach to small claim – claim for unpaid wages, annual leave, allowances – dispute as to whether applicant an employee – evidence as to employment – orders for unpaid wages and annual leave. |
| Fair Work Act 2009 (Cth) s.548 Federal Magistrates Act 1999 (Cth) ss.3, 42 Federal Magistrates Court Rules 2001 (Cth) r.1.03, 16.05 |
| McShane v Image Ballards Pty Ltd [2011] FMCA 215 Black v Young Republic [2012] FMCA729 Jones v Groovy Freighters Pty Ltd [2010] FMCA 673 Lebot v Energetic IT Pty Ltd [2011] FMCA 955 Hollis v Vabu Pty Ltd(2001) 207 CLR 21 Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation(No.3) [2011] FCA 366 |
| Applicant: | ANDRE SMIRNOV |
| First Respondent: | STEPHEN JACK BLIGNAUT |
| Second Respondent: | OZBRITE PTY LTD |
| File Number: | (P)MLG 1793 of 2011 |
| Judgment of: | O’Sullivan FM |
| Hearing date: | 4 October 2012 |
| Date of Last Submission: | 4 October 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 19 October 2012 |
REPRESENTATION
| The Applicant: | Appeared in person |
| The Respondents: | First Respondent in person for both |
ORDERS
THE COURT DECLARES THAT:
The Second Respondent contravened the Fair Work Act 2009 and the Fair Work Act instrument in the terms of the Metal Engineering and Associated Industries (Professional Engineers and Scientists) Award 1998 and the Professional Employees Award 2010.
THE COURT ORDERS THAT:
Pursuant to section 545(2)(b) of the Fair Work Act 2009 the Second Respondent pay to the Applicant the sum of $9,909.60 less tax within 30 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
(P)MLG 1793 of 2011
| ANDRE SMIRNOV |
Applicant
And
| STEPHEN JACK BLIGNAUT |
First Respondent
And
| OZBRITE PTY LTD |
Second Respondent
REASONS FOR JUDGMENT
Before the Court is an application filed on 20 December 2011 by Mr Andre Smirnov (“the applicant”). The respondents to the application are Mr Stephen Jack Blignaut (“the first respondent”) and Ozbite Pty Ltd (“the second respondent”).
The applicant made claims of breaches of the Fair Work Act 2009 (Cth) (“the Fair Work Act”) arising from his employment with the second respondent between March and June 2010.
The application was accompanied by a form 5 as the applicant had elected for his claim against the respondents to be dealt with under the small claims process in section 548 of the Fair Work Act.
Procedural Background
The application was first listed for hearing on 9 March 2012. On that occasion the applicant was granted leave to proceed in the absence of the respondents, who had been served and failed to appear or make a proper application for an adjournment, pursuant to Rule 13.03A and 13.03B of the Federal Magistrates Court Rules 2001. There were orders made for reasons given ex tempore and the respondents were given liberty to apply to set them aside.
The first respondent filed an Affidavit on 5 April 2012 and an application in a case filed on 26 April 2012 seeking that the orders made on 9 March 2012 be set aside. The application in a case was listed for hearing on 6 June 2012.
On 6 June 2012 orders were made for the reasons given ex tempore, pursuant to Rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001 setting aside the orders made 9 March 2012. There were also directions made for the parties to file material and the matter was fixed for a hearing on 4 October 2012.
The applicant filed an amended application, affidavit and another form 5 on 26 June 2012. The respondents filed a response and an affidavit of the first respondent on 18 July 2012. The applicant filed a further affidavit on 1 August 2012.
At the hearing on 4 October 2012 the applicant appeared in person and the first respondent who is a director of the second respondent appeared on behalf of both respondents.
Material relied upon at the hearing
At the hearing on 4 October 2012 the applicant relied on his:
a)application filed on 26 June 2012;
b)form 5 filed on 26 June 2012 along with the annexures;
c)affidavit filed on 26 June 2012 along with the annexures thereto; and
d)affidavit filed on 1 August 2012 along with the annexures.
At the hearing on 4 October 2012 the respondents relied on:
a)the response filed on 18 July 2012; and
b)the affidavit of the first respondent filed on 18 July 2012.
Position of the parties
The applicant in the form 5 accompanying his application filed 26 June 2012 sought compensation for what he claimed were outstanding wages of $8,335.00, outstanding annual leave of $1,574.60 and allowances of $1,857.00. The applicant’s claim is these monies were due to him as a result of his employment with the second respondent from March 2010 to June 2010 and under the terms of the relevant fair work instruments (i.e. Metal Engineering and Associated Industries (Professional Engineers and Scientists) Award 1998 and the Professional Employees Award 2010) and the Fair Work Act.
In the response filed on 16 July 2012 the respondents opposed the applicant’s claims set out above on the basis that:
“…
Grounds of opposition or further orders:
1.The applicant was not an employee of the second respondent from 15 March 2010 to 14 June 2010 and therefore there are no outstanding entitlements for a period of employment due to the applicant.
2.The applicant was an officeholder and Director of the second respondent and was appointed as a Director on 13 April 2011.
3.The finding of the FWO dated 28 November 2011 be struck out as the second respondent was not given a fair opportunity to respond to the FWO and the second respondent was not interviewed in this matter and in relation to the claims made by the applicant in this case.
4.The applicant did not attend work as an employee of the first or second respondent.
5.The applicant was not employed as a Laser Engineer by the first or second respondent.
6.The applicant did not incur the expenses as per his claim in MLG1793/2011 as an employee of the first or second respondent.
7.The applicant did not attend work as a Lazer Engineer for the first or second respondent.
8.The applicant offered his services as a contractor for the second respondents and received payment for these contractual services performed.
9.The applicant was in fact a contractor for a business; My Salon Solutions Pty Ltd and performed numerous duties as a contractor for My Salon Solutions Pty Ltd during the time of this claim.
10.The applicant performed duties for My Salon Solutions Pty Ltd, a business owned and operated by the first respondent.
11. The applicant incurred expenses as a contractor of My Salon Solutions Pty Ltd.
12.The applicant offered his services as a contractor for My Salon Solutions Pty Ltd.
13.The applicant in this case (MLG1793/2011) Mr Andre Smirnov, have previously lodged a counter claim against the respondent in this case and My Salon Solutions Pty Ltd in a claim brought against Mr Andre Smirnov in the County Court of Victoria at Melbourne, Case No: CI-10-04616, by Stephen Blignaut and My Salon Solutions Pty Ltd against Mr Andre Smirnov.”
At the hearing on 4 October 2012 the applicant gave evidence and was cross examined. The first respondent also gave evidence and was cross examined. At the conclusion of the evidence each of the parties had an opportunity to make submissions and the Court reserved its decision.
Approach to small claim
This is an application made in the Court’s small claims jurisdiction. Section 548 of the Fair Work Act sets out:
“(1)Proceedings are to be dealt with as small claims proceedings under this section if:
(a)a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Magistrates Court; and
(b)the order relates to an amount referred to in subsection (1A); and
(c)the person indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.
(1A)The amounts are as follows:
(a)an amount that an employer was required to pay to, or on behalf of, an employee:
(i) under this Act or a fair work instrument; or
(ii) because of a safety net contractual entitlement; or
(iii) because of an entitlement of the employee arising under subsection 542(1);
(b)an amount that an outworker entity was required to pay to, or on behalf of, an outworker under a modern award.
Limits on award
(2)In small claims proceedings, the court may not award more than:
(a)$20,000; or
(b)if a higher amount is prescribed by the regulations--that higher amount.”
In McShane v Image Bollards Pty Ltd[1], Lucev FM said of this process:
[1] McShane v Image Bollards Pty Ltd [2011] FMCA 215
“Section 548(3) of the FW Act provides as follows:
5.Procedure
(3)In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:
(a) in an informal manner; and
(b) without regard to legal forms and technicalities.
6.Rule 45.11(2) of the FMC Rules provides as follows:
(2)The Court is not bound by the rules of evidence when dealing with a small claim application, but may inform itself of any matter in any manner as it thinks fit.
7.Although the Court is not bound by the rules of evidence, and may act informally, and without regard to legal forms and technicalities in small claims proceedings in the Fair Work Division, this does not relieve an applicant from the necessity to prove their claim. The Court can only act on evidence having a rational probative force. The necessity to prove the claim was pointed out with particularity to the parties at the directions hearing on 18 March 2011. That particularity was necessary because Mr McShane had described the hearing, which the Court had just ordered be listed for 31 March 2011, as the “next get-together” (or words to that effect). The Court was at pains to point out that it was in fact a hearing at which the claim would need to be proved. Thus, Mr McShane was on notice that he would need to attend the hearing and prove his claim.”[FOOTNOTES OMITTED].
That decision discusses the procedure that the Court should adopt in these sorts of matters and in particular whilst the Court proceeds without regard to legal forms and technicalities, it is still necessary for the applicant to prove his claim as the Court can only act on evidence having a rational probative force.
I also refer to the decision of Nicholls FM in Black v Young Republic & Anor [2012] FMCA 729 where His Honour noted the provisions in section 548 set out above and the decision in Jones v Groovy Freighters Pty Ltd [2010] FMCA 673 and said:
“6.Further, Burnett FM noted that (at [10]):
“... Commonly small claims applications are conducted in the States by their Tribunals rather than courts. They are called upon to determine these disputes in a manner which can be described as somewhat “quick and dirty” to provide flexibility to dispose of such proceedings both informally and cost effectively.”
7.In McShane v Image Bollards Pty Ltd [2011] FMCA 215, Lucev FM (at [7]) also commented on the nature of small claims proceedings and the exercise of the Court’s judicial power within the proceedings informal structure:
“Although the Court is not bound by the rules of evidence, and may act informally, and without regard to legal forms and technicalities in small claim proceedings in the Fair Work Division, this does not relive an applicant from the necessity to prove their claim. The Court can only act on evidence having a rational probative force.”
[Footnote omitted.]
8.The observations made by Burnett FM and Lucev FM are, in my respectful view, important. While the small claims process allows for the Court to act in an informal manner, without regard to legal forms and technicalities and to not be bound by rules of evidence and procedure (s.548(3)), those allowances must be balanced against the Court’s exercise of its judicial power. That is, the Court can only make a decision where a claim is supported by some probative basis in fact. Further, that decision must be supported by a reasoned judgment that addresses the issues in the case.
9.In this light, I also have regard to what was said by:
Federal Magistrate Lucev in Lebot v Energetic IT Pty Ltd [2011] FMCA 755:
“Small claims jurisdiction – practice and procedure
[7] Section 548(3) of the FW Act provides as follows:
· Procedure
· (3) In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:
· (a) in an informal manner; and
· (b) without regard to legal forms and technicalities.
[8] Rule 45.11(2) of the FMCA Rules provides as follows:
(2)The Court is not bound by any rules of evidence and procedure when dealing with a small claims application and may act:
· (a) in an informal manner; and
· (b) without regard to legal forms and technicalities.
[9] Although the Court is not bound by the rules of evidence, and may act informally and without regard to legal forms and technicalities in small claims proceedings in the Fair Work Division, this does not relieve an applicant from the necessity to prove the claim. The Court can only act on evidence having a rational probative force. For that reason the Court had Mr Lebot give evidence which confirmed the detail of his claim as it appeared in the Form 5 claim form, plus other details which the Court considered it necessary to enquire about.”
His Honour’s decision makes clear that matters in the small claims list are less complex matters that the Court (consistent with its Act and Rules) deals with matters in a less formal manner without regard to legal form and technicality. But the Court can only act on evidence having a rational probative force. This matter also bears out the wisdom of the comments made by Burnett FM in Jones v Groovy Freighters Pty Ltd (supra) at [9]-[12].
Applicant’s Evidence
The applicant deposed that he worked as a consultant for My Salon Solutions, a business owned and operated by the first respondent.
The applicant’s evidence was however that from 15 March 2010 to
14 June 2010 the applicant was an employee of the second respondent, and performed duties as directed including by the first respondent.
The Applicant claimed he was entitled to outstanding payments of $11,763.60.
The correspondence from the Fair Work Ombudsman dated
28 November 2011 relied on by the applicant was sent the following completion of an investigation it carried out into a complaint the applicant made after he started working with the second respondent:
“I refer to your complaint concerning your employment with your former employer Ozbrite Pty Ltd trading as OzBrite, lodged with the Fair Work Ombudsman on 4 November 2010 in relation to not paid for time worked, not issued with payslips, underpayment/ non payment of annual leave, and related correspondence provided to you by the Fair Work Ombudsman.
I am writing to notify you of the outcome of my investigation in relation to your complaint.
Matters determined by Fair Work Inspector:
Ozbrite Pty Ltd trading as OzBrite is an employer within the jurisdiction of the FWO.
You were employed at Ozbrite Pty Ltd trading as OzBrite between 15 March 2010 and 14 June 2010. You were employed on a Full Time basis, as a Laser Engineer. Based on the duties performed and qualifications, your classification will be the equivalent of Level 4 under the Metal, Engineering and Associated Industries (Professional Engineers and Scientists) Award 1998.
The terms and conditions of the employment were governed by the:
· Fair Work Act 2009;
· Metal, Engineering and Associated Industries (Professional Engineers and Scientists) Award 1998;
· Professional Employees Award 2010;
In determining whether there has been a contravention of Commonwealth workplace laws I have relied upon:
1. Complaint form submitted by you;
2. Employment contracts submitted by both parties;
3. Record of Conversation with you;
4. Bank statements provided by you;
5. Invoices submitted by employer;
6.Contractors agreement between you and My Salon Solutions provided by employer;
7.Handwritten note nominating first pay week and weekly wages submitted by you;
8.Expense report submitted by you;
9.Letter on Ozbrite Pty Ltd letterhead dated on 23 May 2010 and signed by Mr Stephen Blignaut confirming that you were employed by the company as a Laser Engineer and that you received a weekly remuneration of $1,500 before deductions;
10.Paid ASIC searches to confirm that you were nominated as a Director of the company, Ozbrite Pty Ltd;
11. Email correspondence with employer;
12. Email correspondence with you;
13. Phone conversations with both parties.
Outcome of Investigation
Based on the information and evidence made available to me throughout the investigation, I have determined that the following contraventions have occurred:
1. Section 323 of the Fair Work Act 2009 provides for:
Payment of Wages
323 Method and frequency of payment
(1)An employer must pay an employee amounts payable to the employee in relation to the performance or work:
(a)in full (except as provided by section 324); and
(b)in money by one, or a combination of the methods referred to in subsection (2); and
(c) at least monthly.
Amounts referred to in this subsection include the following if they become payable during a relevant period:
(a)incentive-based payments and bonuses;
(b)loadings;
(c)monetary allowances;
(d)overtime or penalty rates;
(e)leave payments.
(2) The methods are as follows:
(a)cash;
(b) cheque, money order, postal order or similar order, payable to the employee;
(c)the use or an electronic funds transfer system to credit an account held by the employee;
(d)a method authorised under a modern award or an enterprise agreement.
(3)Despite paragraph (1)(b), if a modern award or an enterprise agreement specifies a particular method by which the money must be paid, then the employer must pay the money by that method.
Based on the available evidence, you did not receive payment for 2 weeks worked.
2. Section 90 of the Fair Work Act 2009, provides that:
Payment for annual leave
(2)If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.
Based on the available evidence, you did not receive payment for 39.89 hours accrued on annual leave on a wage rate of $1,500 per week.
3.Section 536 of Fair Work Act 2009 – Employer obligation in relation to pay slips, - provides that:
(1) An employer must give a pay slip 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 pay slip must:
(a)if a form is prescribed by the regulations – be in that form; and
(b)include any information prescribed by the regulations.
4.Clause 5.2.5 of the Metal, Engineering and Associated Industries (Professional Engineers and Scientists) Award 1998, provides that:
Travel costs incurred by an employee undertaking training in accordance with this clause which exceeded those normally incurred in travelling to and from work shall be reimbursed by the employer.
Based on the available evidence, you did not receive payment for travel related expenses for the amount of $1,857.
In relation to car expenses you have been advised to pursue this claim through the small claims court.
In relation to tax and superannuation issues raised during the course of the investigation, you have been advised to contact the Australian Taxation Office (ATO).
The Fair Work Ombudsman has advised Ozbrite Pty Ltd, trading as OzBrite of the contravention and has sought voluntary rectification. Ozbrite Pty Ltd trading as OzBrite has failed to respond to these notices. Please be advised that the Fair Work Ombudsman will not be instituting further enforcement action against Ozbrite Pty Ltd, trading as OzBrite at this time as it is not in the public interest to pursue this matter in court.”
The applicant’s evidence made plain he believed the first and second respondents had done the wrong thing by him and the Fair Work Ombudsman’s report had upheld his complaint about his claims regarding his employment with the second respondent.
In the course of his cross examination the applicant conceded that the calculation of the total owing at Part H of the Form 5 filed 26 June 2012 was incorrect and should be $11,763.60. The applicant also conceded he hadn’t calculated the allowances he alleged were owed but rather relied on those done by the Fair Work Ombudsman.
During the course of his cross examination the applicant was taken to a number of invoices that were provided, during the period he claimed he was employed by the second respondent, for work done by him through or for My Salon Solutions.
However the applicant’s evidence made plain whilst he acknowledged invoices had been sent, some were sent in error and some were for work done before he was employed by the second respondent he nonetheless maintained he was employed by the second respondent during the period claimed.
Despite the first respondent’s best efforts cross examination of the applicant failed to elicit a concession from the applicant that he hadn’t been employed by the second respondent. Furthermore the applicants evidence in cross examination reinforced the thrust of his affidavit evidence that his relationship with the second respondent and the businesses operated by the first respondent was fluid and changed at the request and direction of the first respondent.
Respondent’s evidence
The first respondent’s affidavit material rehearsed, albeit in greater detail, the matters referred to in the response set out earlier.
In the course of his affidavit evidence the first respondent took issue with the Fair Work Ombudsman’s investigation, and variously contended the applicant was a consultant, a contractor, a director all for or of the second respondent, was not owed any money and had counter claimed in other proceedings against the first respondent and My Salon Solutions and was seeking compensation in this case for matters settled in the other proceedings. In relation to the first of the issues referred to above the first respondent led no evidence capable of contradicting the findings of the Fair Work Ombudsman. In relation to his claims about the applicant’s status the first respondent failed to explain the apparent contradictions in his claims and didn’t appear to understand the need to do so given his opposition to the applicant’s claim.
In the course of his cross examination the first respondent conceded sending the email offer to the applicant in February 2010 of a position with the second respondent. The first respondent also conceded authorising the letter stating the applicant was employed by the second respondent and the preparation of the payslips (which made that clear) for the applicant.
Whilst the first respondent maintained the position in the course of his evidence before the Court that the above documents were prepared at the request of the applicant he conceded they had been issued and tellingly (given the position he adopted before the Court that the applicant was not an employee) said they shouldn’t have been.
Consideration
The Applicant’s claims set out earlier are for wages, annual leave and allowances owing from his employment with the second respondent.
The calculations of those amounts were made by the Fair Work Ombudsman and set out in a report dated 28 November 2011 following the completion of its investigation into the complaint the applicant made to it in 2011. Save as set out below there was no challenge to those calculations or the basis for them (at least in so far as they determined that applicable fair work instruments) by the respondents.
There was a conflict in the evidence between the applicant and the first respondent as to what transpired during the period the applicant worked with My Salon Solutions and the second respondent.
Having heard evidence from the applicant and the first respondent hereafter a statement of fact is to be taken as a finding of fact.
The first respondent is an officer and director of the second respondent. The second respondent is the authorised distributor for My Salon Solutions which provides inter alia hair removal and other machines to the beauty industry and individual beauty salons. The first respondent has also been at various times the managing director of My Salon Solutions. On the evidence the first respondent controlled the second respondent and My Salon Solutions.
In late 2009 the applicant brought beauty kits from the second respondent and in or around November 2009 began working as a “consultant” to My Salon Solutions.
In February 2010 an offer of employment was made to the applicant by the first respondent for the applicant to be employed by and as a director of the second respondent. This arrangement, whilst not formally recorded, was put into effect in March 2010 though the applicant continued to work (as he had before this) as directed by the first respondent who acknowledged in or around May 2010 the applicant was (at that time) employed by the second respondent.
The request to do this was most probably made by the applicant for the purposes of obtaining housing or personal finance.
It appears shortly after this formalised employment arrangement was made (from March 2010) there were ongoing complaints from the applicant about monies owed and disputes regarding responsibility for stock purchased from My Salon Solutions. During the course of his employment and after several requests by the applicant, payslips were prepared for him by the second respondent and his duties and title also changed at his request.
The applicant finished working with the second respondent in June 2010 as a result of inter alia his concerns regarding the lack of progress in resolving the above mentioned issues.
Following this there continued to be disputes between the applicant, the first and second respondents and My Salon Solutions over monies owed allegedly to/by both parties.
Proceedings were commenced in the Victorian County Court by the first respondent and My Salon Solutions against the applicant. Those proceedings were subsequently compromised by all parties on terms including the applicant obtaining an indemnity as against any claim the second respondent may have had against him.
By this time the applicant had made a complaint to the Fair Work Ombudsman against the first and second respondent. The terms of settlement of the County Court proceedings specifically excluded any claim for unpaid employment entitlements the applicant had against the first and second respondents.
The Fair Work Ombudsman finalised its investigation into the applicant’s complaint in November 2011 and issued the report referred to earlier. The applicant then commenced these proceedings.
The applicant was very strong in his evidence that during the period the subject of his claim he worked as full time employee for the second respondent. Along with his affidavit material the applicant produced a number of documents that corroborated his claim that he was employed by the second respondent and the hours he worked and what he was paid.
I note that first respondent complains strongly about the process adopted by the Office of the Fair Work Ombudsman in not interviewing him prior to the completion of its report. I note also that the first respondent disputed that the applicant was employed by the second respondent or was owed anything by the second respondent. However, save for the matter of allowance the respondents failed to lead evidence capable of demonstrating the calculations relied on by the applicant were wrong.
The principles governing the issue of whether or not a person is employed under a contract of employment or is an independent contractor have been the subject of many decisions. These include Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 and Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16. The relevant principles have recently been restated and summarised by Bromberg J in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation(No.3) [2011] FCA 366.
In light of the documentary evidence relied on by the parties there are indicia of a relationship which point with particular force to the existence of an employment relationship during the period claimed by the applicant. There are also indicia which point to a relationship of independent contractor but they relate to either superficial aspects of the relationship (due in large part to what was poor planning or failure to properly document agreed changes to their working arrangements) or to the existence of a different relationship before the period in question.
When one looks at the indicia in light of the evidence of the parties at the hearing, the applicant's work history with the respondents, the way work by the applicant was controlled by the first respondent, that the applicant had no power to delegate, was not conducting his own business during the period in question, and the applicant’s evidence he was required to work solely for the second respondent and possessed no good will the indicia point strongly to an employment relationship during the period in question.
I also found the evidence relied on by the applicant more persuasive on this issue. I arrived at this conclusion principally because of the inconsistencies and improbabilities in the evidence of the first respondent when confronted with the documents which were in evidence supporting the existence of an employment relationship between the applicant and the second respondent.
The first respondent admitted that he did complete at least one of the documents relied on by the applicant to evidence his employment by the second respondent and authorised the other one. The first respondent submitted that, along with other documents, these were prepared at the behest of the applicant to assist him in getting finance for a home loan. However in relation to his claim that the applicant was not an employee of the second respondent he was unable to present any corroborating evidence for this claim or to contradict the veracity of the contents of those documents.
Conclusion
As both the applicant and the first respondent acknowledged in their final submissions they each have a measure of culpability for the situation in which they find themselves. They each acknowledge their working arrangements had not been properly documented to vindicate their respective positions but each blamed the other for this.
The applicant maintained this was due to the arrogance of the first respondent whilst the first respondent acknowledged the working arrangements were very messy and there were too many side deals. Ultimately it appeared in his final submissions the first respondent acknowledged liability for the claims made by the applicant save and except for the allowances.
I am satisfied on the balance of probabilities that the applicant was employed by the second respondent during the period claimed and that his employment status was that of a full time/permanent employee which under the applicable industrial instrument referred to in the Fair Work Ombudsman’s report entitles him to weekly payments and the amounts claimed given the evidence of the hours worked.
The claims made by the applicant in the Form 5 at Parts F & G were not seriously challenged by the respondents and in any event on the evidence before the Court I am satisfied they are made out. In this regard the applicant relies on the investigation of the Fair Work Ombudsman and its determination as to the applicable awards to found his claim for outstanding wages. The awards referred to in the report set out earlier are a fair work instrument.
Whilst the awards apply to the applicant’s employment as a matter of law, and only provide minimum rates and entitlements there was in any event no argument was made by the respondents that any monies paid to the applicant should be set off against any other entitlements.
The applicant alleged that he was not paid accrued annual leave entitlements. Section 90(2) of the Fair Work provides that:
“If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.”
As an employee the applicant is entitled under the Fair Work Act to accrued annual leave on termination. The calculations in that regard were not seriously challenged and on the material before the Court I am satisfied the claim in that regard is made out. I am satisfied that the Applicant has made out his claim for $8,335.00 being the unpaid wages between 15 March 2010 and 14 June 2010 and $1,574.60 being outstanding annual leave.
In respect of the other amount claimed for travelling allowances the applicant’s own evidence doesn’t allow me to make a finding that any allowance is outstanding where on the applicant’s evidence before the Court claims were made which he now acknowledges were mistaken or wrong. For the reasons set out above there will be orders as set out at the beginning of these reasons for decision.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of O’Sullivan FM.
Date: 19 October 2012
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