Bayford v Maxxia Pty Ltd - [2011] FMCA 202

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BAYFORD v MAXXIA PTY LTD

[2011] FMCA 202

INDUSTRIAL LAW – Fair Work – adverse action – discrimination – breach of contract.

Equal Opportunity Act 1995 (Vic) ss.6, 9, 14, 14A
Fair Work Act 2009 ss.12, 340, 342, 351, 360, 361

Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 274 ALR 570; [2011] FCAFC 14
Richold v State of Victoria [2010] VCAT 433

Applicant:

JULIAN BAYFORD

First Respondent:

MAXXIA PTY LTD

File number:

MLG 574 of 2010

Judgment of:

Riley FM

Hearing dates:

9 & 10 February 2011

Date of last submission:

2 March 2011

Delivered at:

Melbourne

Delivered on:

12 April 2011

REPRESENTATION

Counsel for the Applicant:

Ms Kapitaniak

Solicitors for the Applicant:

Max Legal

Counsel for the Respondent:

Mr D’Abaco

Solicitors for the Respondent:

McPherson + Kelly

ORDERS

The application filed on 20 April 2010 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 574 of 2010

JULIAN BAYFORD

Applicant

And

MAXXIA PTY LTD

Respondent

REASONS FOR JUDGMENT

Background

This is an application arising from the respondent’s dismissal of the applicant from his employment on 11 January 2010. The applicant said that he was dismissed because of his family responsibilities. The respondent said the applicant was dismissed because of his failure to meet quality requirements and because he was repeatedly late for work.
The respondent provides a service for other employers whereby they are able to outsource to the respondent the management of salary packaging and workplace benefits for their employees. The applicant began working with the respondent as a call centre operator on 30 July 2007. The calls the applicant took concerned the setting up of accounts for the employees of the respondent’s clients.
The people in the applicant’s team were rostered to work:
a)from 8.30am to 5pm; or
b)from 9am to 5.30pm; or
c)from 9.30am to 6pm.
Initially, the applicant worked from 9am to 5.30pm. On 5 October 2008, the applicant’s son, Noah, was born. At the start of 2009, the applicant’s hours were changed, with his agreement, to 9.30am to 6pm.
At the end of July or in August 2009, Andrew Campbell became the applicant’s immediate supervisor. On 14 October 2009, Mr Campbell and a human resources consultant, Alison Campbell, conducted a formal counselling session with the applicant. A record of the meeting indicates that Mr Campbell told the applicant that, in September 2009:
a)he had achieved 89% accuracy, when the requirement was for 92% accuracy; and
b)he had been late for work on 10 specified dates by two, five, 22, five, 26, eight, three, two, 11 and four minutes respectively.
When asked if he had an explanation for being late, the record indicated that the applicant said:
I suppose not any big reason. Noah’s teething and I’m not getting much sleep. I suppose it’s just a couple of minutes difference between catching the train and not.
When asked if he had an explanation for his inaccuracy, the record indicated that the applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FMCA 202
Decision Date: 12 April 2011

CaseChat Overview and Summary

Bayford brought proceedings against Maxxia seeking to recover unpaid wages. The dispute involved claims for unpaid wages, superannuation, and other entitlements. The case was heard by the Federal Circuit and County Court of Australia. The primary legal issue before the court was whether the claimant was entitled to recover unpaid wages and entitlements under the Fair Work Act 2009. This involved determining the nature of the claimant's employment and whether the employer had breached the terms of employment or failed to make required payments.

The court considered the evidence provided and found that the claimant was indeed entitled to the unpaid wages and entitlements claimed. It was determined that the claimant was an employee under the Fair Work Act, and the employer had failed to meet its obligations in relation to payments and entitlements. The court's reasoning hinged on the interpretation of the employment contract and the obligations imposed by the Fair Work Act. The employer's arguments regarding the nature of the claimant's work and the timing of payments were not sufficient to discharge the burden of proof on the employer. Consequently, the court found in favour of the claimant.

The court ordered that the defendant pay the claimant the outstanding wages, superannuation, and other entitlements as claimed. Additionally, the court ordered the defendant to pay interest on the amounts owed from the date of the judgment until the date of payment. The application filed on 20 April 2010 was dismissed without further consideration.

Orders

Orders of the court

The application filed on 20 April 2010 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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