Bell v Ouyen Hotel Pty Ltd
[2020] FCCA 1505
•19 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BELL v OUYEN HOTEL PTY LTD | [2020] FCCA 1505 |
| Catchwords: INDUSTRIAL LAW – Adverse action claim – whether applicant resigned or accepted employer’s repudiation of the contract – whether applicant entitled to alleged award underpayments – whether employer injured the applicant in her employment because of exercise of workplace right – consequences of non-provision of payslips – applicant’s claims largely established – matter to be heard as to consequential orders and relief. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 341, 343, 361, 386, 536, 545 Fair Work Regulations 2009 Passenger Vehicle Transportation Award 2010 |
| Cases cited: Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 |
| Applicant: | ELAINE MARGARET BELL |
| Respondent: | OUYEN HOTEL PTY LTD |
| File Number: | MLG 3617 of 2018 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 3 March 2020 |
| Date of Last Submission: | 4 June 2020 |
| Delivered at: | Dandenong |
| Delivered on: | 19 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr McKenney |
| Solicitors for the Applicant: | Davies Watson Lawyers |
| Counsel for the Respondent: | Mr Havenstein |
| Representative for the Respondent: | Australian Public Transport Association |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 3617 of 2018
| ELAINE MARGARET BELL |
Applicant
And
| OUYEN HOTEL PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introductory
The applicant seeks relief arising out of her former employment by the respondent, which came to an end in August 2018. The claims are correctly characterised in the applicant’s written submissions as being three separate claims. The first is a general protections claim under the Fair Work Act 2009 (Cth) (“the Act”) alleging breaches of sections 340 and 343 of the Act.
The next claim is an underpayment claim under the Passenger Vehicle Transportation Award 2010 (“the Award”) resulting in breaches of the Award and thereby section 45 of the Act. The final claim arises out of the admitted non-provision of payslips in breach of section 536 of the Act, and subdivision 2 of Division 3 of Part 3.6 of the Fair Work Regulations 2009.
The applicant seeks relief in the form of declarations, pecuniary penalties, payment of underpaid wages, and other relief pursuant to section 545 of the Act.
The respondent’s essential position is that there was no termination of employment and that the applicant resigned. This is put as an answer to all the adverse action claims. There is a factual dispute as to whether or not the applicant was underpaid. There is, however, no dispute that payslips were not provided.
The Factual Background
As I observed during the currency of the hearing, this case has given rise to very heightened emotions on the part of the primary players. Notwithstanding this, however, the overarching factual position is the subject of surprisingly little dispute.
The applicant had been responsible for a school bus run known as the Ouyen-Hattah Bus Run for many years. Relevantly for these purposes, the former owner of the business sold the school run to the respondent in 2012. The respondent commenced its operations relevantly in September 2012. The respondent has, as I understand it, only one director, a Mr Vallance, who irrespective of the corporate structure of the respondent is clearly its mind and will.
Both before and after the first respondent took over, the applicant had run the Ouyen-Hattah run very much as her own business. The school bus lived at her premises. She ran it very much as her own affair.
From the evidence given, it is clear that the school run is funded as what was described as a government project by Mr Vallance, and he is reimbursed on a monthly basis by the relevant government sources.
It is quite clear that both before and after the respondent took over, it was the applicant’s practice to drive the bus most of the time herself (approximately 60 per cent during the period with which we are concerned) and for the remainder her husband (about 30 per cent) and others (about 10 per cent) would do the actual driving. There is no doubt that this was well known to Mr Vallance at all times.
It is common cause that the Award applied, and even though Mr Vallance had the most rudimentary understanding of the terms of the Award, it is clear from his answers in cross-examination that he was well aware that the Award required a minimum engagement for casuals who transported children to school like the applicant was for a period of two hours for each separate engagement.
Matters went on in this way until February 2017, when the length of the Ouyen-Hattah run was slightly extended. There is a dispute as to how much driving and time was involved in the extension, but on any view of the matter there was an increase. It appears that in November 2017 the applicant made a complaint about the additional part of the run and asked for extra wages (P-28) and then nothing further occurred until May 2018. On 9 May 2018, the applicant sent a letter to Mr Vallance which relevantly said:
Just letting you know I will be away all of June but have organised Trevor Mills to do my run. Robyn should have all his details and I will be back again for July. I will let her know anyway.
Getting to the Hattah bus run. As I mentioned recently since the start of last year I’ve been doing extra on the bus run by 30 minutes per day. Therefore I am entitled to extra pay for the longer run.
Im now requesting back pay for the past 17 months along with the pay increase. From the next financial year I want a payslip monthly and it can be E Mailed if convenient to [email protected].
I would appreciate this to be delt with as soon as possible thanks.
Cheers Elaine Bell.
It should be noted that the reference to Robyn is a reference to the person described as the paymaster. It should also be noted that it is implicit in this letter that Ms Bell felt that any increase in her hours of work required a commensurate increase in pay. In fact, the Award would not have required an increase in pay if she was not working more than one and a half hours on each of her two runs.
The response from Mr Vallance on 31 May 2018 can be shortly set out:
Elaine, I am very disappointed you are not happy with the hourly rate of pay you receive.
Consequently as of June 30 (or prior if you desire) Debra and myself will do the Hattah run.
I can offer you the Tempy-Turriff run which will give you the extra income. Please let me know you decision ASAP.
I need your bus on Thursday afternoon, so we will swap over on Thursday morning.
From discussions between representatives at Court (P-79) it appears that the bus was collected on 8 June 2018.
The applicant was not happy to do the proffered Tempy-Turriff run for reasons set out at paragraph 27 of exhibit A1, and no further communication occurred between the parties until 11 July 2018 when Mr Vallance re-sent his email of 31 May 2018. I accept the applicant’s evidence that she responded the same day asking to meet to discuss things, but this did not occur. The applicant’s evidence at paragraph 30 of exhibit A1 is as to a telephone call in these terms:
Applicant: “I’ve been doing extra driving since February 2017 and I think I should be getting paid more for it. Do you think I’m being unreasonable? You have asked if I’m unhappy with my hourly rate, but I don’t know what hourly rate I’m on. Legally you need to give me a payslip. Are you sacking me?”
Alan: “No, I am not sacking you.”
Applicant: “You need to know what you want to do by tomorrow or else I’ll be taking this further.”
Alan: “I will talk to my wife and get back to you.”
On the following day, Mr Vallance telephoned the applicant and told her words to the effect “You are paid $1,200 a month, which works out to $40 per hour; that’s a high hourly rate”.
Subsequently, Mr Vallance sent a SMS message which relevantly reads:
Sorry couldn’t take your call. At doctors most of day. I worked out you were getting in excess of $50 per shift. Debra and myself are quite happy to do this run. We will need a fill in driver quite often. You can have that job, where the pay will be cash ($25).
On 3 August 2018, the applicant advised Mr Vallance that she could not continue to work for him. From evidence given at Court, this appears to have been on legal advice.
Thereafter the matter was the subject of proceedings in the Fair Work Commission, following which on 7 September 2018, Mr Vallance sent the applicant’s husband a message in the following terms:
You 2 lowlifes would might be smiling tonite. The town has been telling me that you are the biggest liar in Ouyen. Today proved your hungry sniveling lying money hungry church hiding bitch of wife beats you hands down. You have set debra back 12 months in her recovery from chemo. I hope you are proud of yourself. I look faward to catching up with you in the very near future.
I hope you both sleep well
The Evidence Given at Court
As I have already indicated, the above evidence is not, in my view, controversial. Certain aspects of the applicant’s evidence were simply not the subject of cross-examination. I propose merely to itemise those addition aspects of the evidence that might touch upon certain aspects of the claims.
At P-20, the applicant gave evidence as to the effects upon her of the offensive text message sent by Mr Vallance. She said “It has affected me a lot. We live in a small country town and we know everyone”.
She went on to say at P-21 this was very disturbing and that she took the reference to her religious beliefs pretty hard. At P-21, the applicant confirmed that she had no plans to retire in 2018 and had just renewed her driver’s certificate which is for a three-year period. She further deposed that she had never had any discussions with Mr Vallance about the Award.
In answer to the question why she ended up not working for Mr Vallance, the applicant replied:
I could not keep working under the circumstances of – I had tried many times to discuss the matter with him, and he just wouldn’t even hear of it, so I could not - I couldn’t – I couldn’t keep working for him.
She went on to depose that she had never received a payslip from the respondent and had been doing the run on and off from about 1989.
At P-21, under cross-examination, the applicant was clear that she did not know what her hourly rate was because she had never been given a payslip. She considered that she was employed as a casual.
At P-23, the applicant affirmed that she did not do all the runs and that other people did them, but that they were not employees of the respondent. That included the applicant’s husband. The other drivers were paid by her, but she did not pay her husband. She paid the other drivers $20 a run and then up to $25 (P-24).
At P-26, the applicant confirmed that the extra time introduced in February 2017 was 30 minutes, but she denied further cross-examination that this might have interrupted other casual work that she had.
At P-28, the applicant accepted that even with the additional time it still fell well within the two hours on the morning shift and under two hours on the afternoon shift. She further confirmed that she did not complain about the additional part of the run until November 2017. She confirmed that she did not complain again until May 2018.
At P-31, the applicant confirmed that she sent Mr Vallance a text message on 6 August 2018, as relevant asserting:
Alcat, just letting you know that I won’t be available any more to drive the bus.
At P-33, the applicant confirmed that she was happy to do the extra work on the Ouyen-Hattah run but wanted to be paid additional pay. She confirmed that she was not happy to go to the Tempy-Turriff run.
At P-35, the applicant confirmed that she had tried to request extra pay from Mr Vallance further on two or three times.
At P-36 to P-37, when asked why she had decided to resign, the applicant said that she could not work for him anymore because what she had been through with him and at P-37 said:
Well, the – the text messages, the – just not being able to communicate with him, you know?
It should be noted that the offensive text message relating to the applicant’s religious beliefs and other matters post-dated her decision to cease work.
When Mr Vallance gave evidence, he confirmed at P-41 that the applicant drove the bus but that she employed others to do so, and he had noticed this before he bought it. He had not employed the other drivers; he only employed Ms Bell. He paid her a salary monthly because that was when he got paid by the government.
At P-42, Mr Vallance said that there were no complaints about the applicant’s income until the last six months or whatever. The first time he heard a complaint was probably in November 2017.
At P-42 to 44, Mr Vallance went to some trouble to stress that the work that the applicant did, even with the additional work, was well under two hours. At P-44, he asserted that he could not stretch it out longer than an hour and that he had been doing it quite regularly.
At P-48, Mr Vallance, when asked why he had offered the alternative route, said:
She wasn’t happy with the rate she was getting for the – for the Hattah run, and both runs start and finish at Ouyen. So that just takes a little bit more – a little bit longer time to do the other run. She wanted more money, so it made sense to me.
He went on to say that he wanted Ms Bell to remain in his employment. At P-53, Mr Vallance repeated his assertions that the applicant was getting paid two hours pay for three quarters of an hour’s work. When asked if he was aware that he was required to provide payslips, he responded:
I wasn’t aware of that, but – but no one requested one and everyone was happy. There was payslips done and no one requested one.
At P-54, Mr Vallance went on to assert that payslips were done, but no one had requested them. It should be noted there was a call for production, and no payslips were produced.
When asked about the alleged attempts of Ms Bell to raise her pay with him, at P-56 Mr Vallance responded:
Well, I didn’t think she was entitled to extra pay, so I didn’t – it didn’t go through my head. Quite simply, if you’re getting paid for two hours and you’re working for one.
When questioned as to whether he should have looked or to see what the applicant might be entitled to at P-57, Mr Vallance responded, relevantly:
I’ve got enough to do without running around with pays.
I further note that when cross-examined about the alleged less satisfactory nature of the Tempy-Turriff run, at P-60, Mr Vallance’s answers were, in my view, prevaricating and endeavouring to avoid the question.
I would interpolate at this point and say that much of Mr Vallance’s evidence was querulous, self-righteous, and his general demeanour suggested a profound disdain for the applicant, to whom he was prepared to ascribe improper motives for something even as innocuous as her endeavouring to join the local bowls club.
The General Protections Claim
Pursuant to section 340, being part of Division 3 – Workplace Rights – of the Act, a person has certain protections. Pursuant to that section, it is provided:
(1)A person must not take adverse action against another person:
(i)Because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(ii)to prevent the exercise of a workplace right by any other person.
Adverse action is relevantly described in section 342(1) as:
the employer:
(a)dismisses the employee; or
(b)injures the employee in his or her employment; or
(c)alters the position of the employee to the employee's prejudice; or
(d)discriminates between the employee and other employees of the employer.
Workplace right is defined in section 341 as:
(1)A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a real responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c)is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee - in relation to his or her employment.
The applicant also relies on section 343: Coercion, which relevantly provides:
(1)A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a)exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b)exercise, or propose to exercise, a workplace right in a particular way.
The applicant is clearly correct to submit that the applicant had the benefit of a workplace law in relation to the provision of payslips under the Act and Regulations. It is also clear that the applicant had the capacity to initiate or participate in a process or proceedings under a workplace law, as she commenced the proceedings in the Fair Work Commission, the subject of evidence in exhibit A1. As I have earlier indicated, there is no question that the applicant initiated such proceedings, nor is there any question that it was deeply upsetting to Mr Vallance.
Finally, the applicant had a capacity to make a complaint or an inquiry in relation to her employment, and plainly did so when she wrote to Mr Vallance seeking an increase in pay and payslips.
It is the applicant’s case that the respondent took adverse action by not agreeing to increase the applicant’s pay or provide payslips, and then offered a less congenial shift, followed in the ultimate by an offer of intermittent employment at $25 in cash.
I note that pursuant to section 361 of the Act, the so-called reverse onus applies in respect of these assertions of adverse action. Relevantly, it is presumed that the action was, or is being, taken for that proscribed reason or with that intent, unless the person proves otherwise.
Here, the position could scarcely be simpler. Ms Bell raised the question of what she saw as inappropriate underpayment of pay and non-provision of payslips. She was immediately removed from the job that she was doing for many years, and offered an alternative bus run.
I accept the applicant’s reasons for explaining why this was less beneficial to her. Indeed, I would go further and say that I am wholly unpersuaded by Mr Vallance’s evidence that the offer of the alternative bus run was anything other than an endeavour to punish Ms Bell for her presumption in asking for more pay in circumstances where Mr Vallance already thought she was being overpaid. Not only has Mr Vallance, to quote the statute, not proved otherwise, I am entirely satisfied in the face of the answer he sent to Ms Bell that he intended to alter her circumstances to her detriment because of her complaint.
The question of coercion has not been expanded upon in the applicant’s written submissions, and I should make it clear that I do not uphold any claim pursuant to section 343 of the Act.
Furthermore, despite the applicant asking for payslips, she was simply not provided any. However, this was not because of her request. Rather, it was simply because it was not the respondent’s practice to provide payslips to anybody. Insofar as the claim rests upon section 341, in respect of the non-provision of payslips, it does not succeed. I repeat, the respondent did not provide Ms Bell with payslips because of its insouciant attitude towards its obligations, not because she has specifically raised the matter. Accordingly, I propose to grant the applicant relief for the respondent’s contravention of section 340 of the Act taking adverse action against the applicant by removing her from the Ouyen-Hattah run. This is plainly adverse action within the meaning of section 342(1) of the Act. It was plainly injuring Ms Bell in her employment and/or altering her position to her prejudice.
This brings us to the question of the termination of the employment. This is submitted by the applicant to form part of the adverse action.
There is no doubt that on the face of it the applicant resigned her employment. She admitted as much in cross-examination. That is not, however, the end of the matter. The applicant's submissions put the matter both as a repudiation at common law and as a dismissal within the meaning of section 386(1)(b) of the Act which provides relevantly that:
(1) A person has been dismissed if:
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
Although I have had regard to the authorities quoted by the parties in support of their positions, this case, in my view, turns upon an examination of the particular facts and circumstances of the contract of employment that obtained between the applicant and the respondent. (It should be noted that at no time has the respondent sought to suggest that the relationship was one of an independent contractor.)
Ms Bell had conducted the Ouyen-Hattah run for many years. That was her job as she saw it. Given that it had continued under the respondent for some five years from 2012 to 2017, it was plainly the job as Mr Vallance saw it also. What made things change was the request for more pay and payslips made by Ms Bell.
The respondent's conduct in response that request was, in my view, extreme. He did not respond (although he clearly thought this) by asserting that there was no occasion for a pay rise because the work in total, even if increased, simply did not amount to two hours per day. He forthwith took her off that run and offered her another one. From the obfuscatory and evasive answers he gave in Court to which I have already referred in my references to the transcript above, I have no doubt whatever that he was aware that this would be uncongenial to the applicant. I have no doubt that he knew this would be a major and unacceptable change to her.
Does this conduct, however, indicate "the employer has evinced an intention no longer to be bound by the contract of employment, i.e. whether the employer has repudiated the contract of employment. No doubt the question whether conduct does evince such an intention is to be judged objectively" (Spencer v Dowling [1997] 2 VR 127 per Hayne JA at p.160). Was it, to put the matter another way as in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 at [44] conduct which evinces an unwillingness or an inability to render substantial performance of the contract.
Mr Vallance's evidence was that he still wanted the applicant to work for him but I do not accept that assertion. It is wholly inconsistent with the objective march of events and his vitriolic comments about Ms Bell from time to time. I think taken in the context of the long-running relationship of the applicant with the particular job that she had, its removal necessarily ultimately gave her no alternative other than to resign. In my view, the conduct of Mr Vallance in taking the applicant off the Ouyen-Hattah run was both a repudiation at common law in the circumstances of the case and forcing her to do so within the meaning of section 386(1)(b) of the Act.
It should be noted, however, that given that the respondent has already been found to have contravened section 340 by taking the adverse action of removing her from the run, to punish the respondent twice for the resultant dismissal would, in my view, be a double counting.
Finally, it should be noted that the conduct of Mr Vallance following the exercise of the workplace right by Ms Bell in going to the Fair Work Commission cannot be adverse action because by that stage on any view of the matter Ms Bell was no longer an employee. The respondent did not dismiss her from employment, injure her in her employment or alter her position as an employee to her prejudice. In order to constitute action pursuant to column 1 in section 342(1) it must be action by an employer against an employee. While Mr Vallance's responses both in his message and at the bowls club are deeply unattractive, they do not infract s 340 of the Act. They do, however, fall for consideration in the applicant’s claims for relief.
The underpayment claim
I have already provided the parties with a memorandum expressing some concerns about the material prepared by the advocates on behalf of each of the parties in relation to what the underpayments amount to. The parties all agreed that the Award applied.
I was at one stage concerned as to whether or not there could meaningfully be an underpayment by the respondent to the applicant in respect of times when it was not the applicant herself who was driving the bus.
Looking at the matter in the light of the evidence, which shows that at all times, even before the purchase of the run, Mr Vallance was well aware of the arrangements in place, it seems to me that the parties, as it were, contracted in such a fashion that there was an obligation on the part of the respondent to pay the applicant two hours of Award wages whenever the bus was driven as it was every day. The parties made no distinction in the amounts of pay paid to the applicant according to whether or not she was herself the actual driver, save for some anomalous exceptions which are minor exceptions and are not relevant.
Whether these are breaches of the Award and/or are breaches of the wholly interrelated collateral contract does not appear to me to be a matter of any moment because on either basis the applicant must succeed. In my view, the applicant has made out her claim for the greater of the two figures that she claimed in her original complaint. The two schedules prepared by the applicant reflected in the first pages 21-41 of the exhibit A3 are calculated on the basis that the applicant should be paid for all the work that was performed in driving the Ouyen-Hattah run whether she drove it herself or not. The remainder of the schedule at pages 42 and following is an alternative calculation based solely on the hours that the applicant worked. Since I have decided that the agreement between the applicant and respondent is that she was paid irrespective of who did the work, it follows logically that the larger figure must be sustained. I have preferred in the ultimate the applicant’s prepared schedule because such investigations as I have made, and indicated in my memorandum, establish that it is more reliable than that of the respondent’s witness. This is so notwithstanding the reservations expressed in my memorandum.
Non-provision of payslips
There is no question that there has been no payslips ever provided. Although Mr Vallance purported to suggest that there might be some payslips, none were produced in response to the call for Notice to Produce, nor was there any request for any extension of time in which to enable such production to take place. This contravention is plainly made out.
The Respondent’s claims to set off
The Respondent has sought to set off sums allegedly overpaid and detailed in exhibit R4 against any sums payable to Ms Bell by way of underpaid wages. The first point to be made is the fact that the Respondent conceded in written submissions that this point had not been pleaded in its defence. To seek to raise a matter of this character when all the evidence is in and the case closed in the course of final submissions is not acceptable and I will not permit this amendment to be made in any event.
Even if such permission were to be granted, the sums allegedly overpaid between 2015 and 2018 are not in my view properly able to be offset against sums underpaid in the time leading up to the period of the claim. I have already indicated that I prefer the evidence of the applicant to that of the respondent as to what sums were actually payable. Even if, however, the respondent’s figures are correct for the period after 2015, when the applicant concedes underpayment stopped, these are not sums that in my view can properly be set off as the respondent seeks. The recent decision of the Full Court of the Federal Court in WorkPac Pty Ltd v Rossato [2020] FCAFC 84 does not in my respectful view substantially alter what has been previously understood to be the law in this field. In order to be properly set off, the payments said to give rise to the set off must have some sort of proximate correlation with the sums underpaid. It is simply not open in my view to the respondent to seek to set off, if it were established, excess sums paid in a totally different time period to that in which the underpayment occurred.
The applicant’s collateral claims
In the applicant’s Form 2 Application at Part H, the Applicant sought compensation in the amount of $30,500 pursuant to section 545 of the Act comprised of $10,000 for distress, hurt and humiliation, $18,000 for 12 months’ loss of income and $2,500 for loss of long service leave due after 7 years of employment.
In the Statement of Claim, the applicant sought relevantly $10,299.95 for underpaid wages and pursuant to s. 545(2) of the Act compensation in whatever amount the Court determines (these were in fact pleaded in the alternative but the case has proceeded on the clear understanding that they were discrete claims). There were also claims for interest and pecuniary penalties.
At paragraphs 40 to 41 of exhibit A1 (the applicant’s outline of evidence adopted by agreement of all parties as her evidence in chief), the Applicant deposed as follows:
40. On 7 September 2018, which was shortly after the FWC conciliation conference in this matter, Alan Vallance sent Elaine an abusive and harassing email in which he described her as a ‘lowlife’ and a ‘snivelling lying money hungry church hiding bitch’. The SMS is annexed at page 20.
41. On about 1 March 2019 the Applicant was at the Ouyen Bowls Club and saw Alan Vallance there. Alan Vallance caused a scene and complained loudly to others in the clubroom that she was there.
At paragraph 44:
44. The Applicant has not worked since her employment was terminated.
In the hearing before the Court at P-20, Ms Bell gave evidence that she was “absolutely disgusted” when she read the email and that it affected her a lot. She said “We live in a small country town and we know everyone”.
She also went on to say at P-21 that “blaming me for other issues as well and my religious beliefs as well. I – I took that pretty hard as well”.
On the same page, she gave the evidence that she did not intend to retire in 2018 and intended to keep driving the bus as long as she could having just renewed her drivers certificate for a 3 year period. There was no challenge to that evidence in cross-examination and the respondent’s submissions have not addressed the applicant’s claims for the ancillary relief pleaded in any way. The applicant’s written submissions at paragraph 20 relevantly state:
As to the relief sought in relation to the general protections claim the Applicant relies upon s.545 of the FW Act and moves on Part H of her Claim Form and remedies sought being under paragraph (d) “an order that the employer (Respondent) pay the employee (Applicant) damages by way of compensation in the amount of $30,500.00 pursuant to s.545 of the FW Act” as broken down under the Particulars of Compensation and should be considered a modest and reasonable claim in the circumstances.
The submissions continue:
The claim for 12 months loss of income at $18,000 is modest particularly having regard to the longevity of the time the Applicant performed the Ouyen-Hattah bus run for the Respondent and her stated intention to continue to do so verified by the renewal of her bus driver’s licence.
The written submissions go on at pages 19 to 20 to detail the demeanour and attitude of Mr Vallance in the witness box and seek to justify a claim of $5,000 for aggravated damages.
I accept that the Court has broad power under section 545 of the Act to compensate for loss including non-economic loss for hurt and distress. The judgment of Barker J in Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 is clear on this point.
Turning first to the claim of loss of wages, I would accept that given the length of period of the employment some period of notice would at common law have been appropriate. The difficulty of course is that all parties have proceeded on the footing that this was casual employment. Casual employment ends and recommences with each particular engagement. The terms of clause 10 of the Award are consistent with this proposition. Having prosecuted her claim on the express footing that she was entitled to casual rates of pay, it is not in my view open to the applicant now to seek damages for wrongful dismissal which would only necessarily be applicable if she was a permanent ongoing employee. True it is, that on one view, the characterisation of the employment might well be thought to be one of ongoing employment, although I think the better view is that she was what the Award described as a “regular casual employee”. The parties have been in an arrangement for quite a number of years. Nonetheless, and in my view this is decisive, the applicant has elected to describe her employment as casual and prosecute her case on that footing. It follows that the claim for loss of wages cannot be sustained.
Even if I were to be wrong in this conclusion the period of 12 months is grossly excessive. The period of notice required to end a contract of employment is calibrated having regard to all the relevant circumstances of the case. Given the nature of the employment, the remuneration concerned and the very limited number of hours actually worked, I would have thought the appropriate period of employment would be no more than 5 weeks, the minimum amount prescribed by the Award and the Act itself.
Insofar as the claim seeks damages for hurt and distress and aggravated damages, in the circumstances of this case, to award both would in my view be double counting. To award aggravated damages would in my view would be awarding exemplary damages which have not been pleaded. I have already said that Mr Vallance’s conduct in sending the offensive email to Mr Bell (knowing or reasonably ought to been knowing that this would be brought to her attention) was extremely unattractive. His behaviour at the bowls club thereafter likewise does him no credit. I have no doubt that this was hurtful and distressing to the applicant as she has said. Indeed no other response would have been reasonably anticipated. In my view, the applicant should be awarded $5,000 for the hurt and distress that the extreme offensive conduct of Mr Vallance constituted. Aggravated damages for the reasons expressed are not in my view appropriate. They would involve double counting.
Conclusion
This judgment has about it a perhaps slightly scattergun style but that is because of the slightly scattergun way in which the case was run.
Although the written submissions of the applicant, and to an extent of the respondent, traverse questions of penalty, I note that during the currency of the hearing I was clear that any question of penalties and relief would be required to be addressed in the light of the Court's findings.
I will list the matter for directions to address penalties and relief.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 19 June 2020
Key Legal Topics
Areas of Law
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Employment Law
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Contract Law
Legal Concepts
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Breach
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Remedies
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Offer and Acceptance
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Duty of Care
0
3
4