Chisholm v GP Fireprotection Pty Ltd
[2012] FMCA 786
•6 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHISHOLM v GP FIREPROTECTION PTY LTD | [2012] FMCA 786 |
| INDUSTRIAL LAW – Small claim procedure – status of employment, whether full time or casual – change circumstances of employer, decrease in level of work available – alleged failure to make payment in lieu of notice – claim for full time wages. |
| Fair Work Act 2009, ss.548, 548(5) |
| Applicant: | DERRICK DOUGLAS CHISHOLM |
| Respondent: | GP FIREPROTECTION PTY LTD |
| File Number: | MLG 446 of 2012 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 11 July 2012 |
| Date of Last Submission: | 11 July 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 6 September 2012 |
REPRESENTATION
| The Applicant: | In person |
| The Respondent: | Mr Hughes, Director |
ORDERS
The Respondent pay the Applicant the sum of $6,668.05.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 446 of 2012
| DERRICK DOUGLAS CHISHOLM |
Applicant
And
| GP FIREPROTECTOIN PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter came before the Court as a small claim pursuant to s.548 of the Fair Work Act 2009 (the Act).
The matter first came before the Court on 16 May 2012 when an adjournment was granted to allow the parties to file affidavit material, including that of intended witnesses. It is to be noted that Mr Hone, a qualified lawyer appeared on behalf of the Applicant, but the question of his continued right to appear was reserved to the final hearing. There was a further adjournment on 12 June 2012 to 11 July 2012 caused by my ill health.
On 11 July 2012 the question of Mr Hone’s continued appearance on behalf of the Applicant was considered and I determined that, pursuant to s.548(5) of the Act, leave would not be granted to the Applicant to be represented, as the Applicant chose the procedure by which his claims would be prosecuted and the involvement of Mr Hone, in my view, would not have assisted in respect of the administration of justice particularly in circumstances where the Respondent would not be legally represented.
The Applicant sought compensation arising out of his employment with the Respondent in the total sum of $13,484.09; being wages of $2,197.51, unpaid wages of $4,470.53 and an amount of $6,819.04 being a claim for payment in lieu of notice of termination of employment.
I heard evidence from the Applicant and from Mr Hughes, the Director of the Respondent. Hereafter a statement of fact is to be taken as a finding of fact, unless the context suggests otherwise.
Background
The Respondent is in the business of installing and maintaining fire protection systems.
The Applicant first began employment with the Respondent as an apprentice. After completing his apprenticeship he remained employed with the Respondent in the capacity of a sprinkler fitter.
Both parties agree that the Respondent’s business grew significantly during the period of his apprenticeship and at its peak reached a position where nine full time employees were engaged plus three casuals. There is no dispute between the parties that the Applicant was employed as a full time employee.
The Applicant also agrees with the Respondent’s assertion that business dropped off dramatically between the years 2008 and 2010 resulting in a significant drop in the number of employees.
The situation got to the stage where Mr Hughes, the director of the Respondent who at all times was the controlling mind of the Respondent and its manager believed it necessary, for the sake of the survival of the Respondent, to adjust arrangements with his staff, such as having them take their long service leave but, more significantly, employing staff on a needs only basis and paying them for the time of their actual engagement in work. Mr Hughes was of the view that his employee’s employment status changed from that of full time to casual when this arrangement was put into effect.
The Applicant, however, considered his employment status, until the time his employment ceased, to be that of a full time employee, notwithstanding the fact he was not fully occupied and was only being paid, albeit late, for the time he actually was working.
Claims
The Applicant’s claims are under two heads; namely a claim for unpaid wages and failure to give notice of termination.
In respect of the unpaid wages that is composed of an amount in the sum of $2,197.52, being an amount calculated as owing in respect of one day’s earnings on 6 December 2010 in the sum of $340.95 and moneys unpaid until 17 August 2010 in the sum of $1,856.57.
The calculations of those amounts was made by the Fair Work Ombudsman and set out in a report dated 3 April 2012.
The Respondent admits this amount is owing. The balance of the money said to be owing for unpaid wages is in the sum of $4,470.53 which is calculated from 17 August 2010 to 7 September 2010, on which date the Applicant asserts his employment ceased. It is to be noted that the Applicant was in receipt of payslips for this period where it is recorded he did not work a full week. In any event, the Applicant claims he has not been paid for this period, which claim was not refuted by the Respondent. The issue, however, for determination in respect of this part of the claim is whether he is entitled to unpaid wages as calculated for the period he actually did work, or unpaid wages for a full time employee.
The second head of his claim is in the sum of $6,819.04, being for an alleged payment due in lieu of notice of termination of employment having been given by the Respondent.
Consideration of the Evidence
Casual or Permanent Employee?
There is a conflict in the evidence between the Applicant and Mr Hughes as to what transpired during the difficult time the Respondent was experiencing. That conflict relates to whether it was agreed between the parties that the Applicant would be transferred to casual status. Mr Hughes spoke of many conversations with the Applicant and of the agreement reached between them as to how future work would be organised, including the proposal that the Applicant would be paid only for work actually done. When he was questioned as to whether he had provided a 20% loading for the Applicant as a casual employee, his response was that he had not as the agreement reached between himself and the employee did not provide for such.
Clearly, such an agreement, if it did exist, cannot be endorsed as it is an agreement in breach of statutory requirements. Nonetheless, the fact that such was not agreed upon gives further weight to the general proposition that there was no agreement by the Applicant to allow for a change of his employment status. Mr Hughes admitted that he did not commit to writing the proposed change in employment status and he was unable to present any evidence in support of his contention in that regard. Whereas, the Applicant was very strong in his evidence that his expectation was that when times got better he would recoup the money that he was not paid in order to make up the shortfall between any pay for the work done and that which he was entitled to for a week as a full time employee.
I am satisfied on the balance of probabilities that the employment status of the Applicant until the cessation of employment on 7 September 2010 is that of a full time/permanent employee who under the applicable industrial instrument entitles him to weekly payments.
I am satisfied that the Applicant has made out his claim for $4,470.53 being the unpaid wages between 17 August 2010 and
7 September 2010.
In respect of the other amount for unpaid wages in the sum of $2,197.52, as stated, the Respondent admits those wages were not paid. Accordingly, the Applicant has successfully made out a claim for unpaid wages in the sum of $6,668.05.
Notice of Termination of Employment
The evidence of the Applicant was that he continued to work sporadically for the Respondent, and after considerable delays in payments being made to him for work he actually did, he looked for and obtained alternative employment. It is as a consequence of his alternative employment that he ceased employment with the Respondent.
The Applicant claims compensation for failing to give notice of termination of employment pursuant to Clause 35.1 of the applicable industrial instrument[1] that provides, in the instance of the Applicant, at least four weeks’ notice of termination to be given. However, under Clause 35.2 the employee is required to give one weeks’ notice. There was no evidence of the employee giving that notice in circumstances where the employee initiated the cessation of the employment.
[1]GP Fire Protection (Aust) Pty Ltd and Plumbers Union (Vic) Fire Collective Agreement 2009-2011
Further, however, the Applicant stated that after the termination of his employment the Applicant met with Mr Hughes and in the spirit of goodwill shook hands and there was no demand by the Respondent for the Applicant to work out his time, or any suggestion by the Applicant that there was a termination of employment by the Respondent without giving due notice.
The concept of a payment being paid to the Applicant in lieu of a notice of termination was one that stems from the Office of Fair Work report and one that does not, on examination, withstand critical assessment. I note further that Mr Hughes complains strongly about the process adopted by the Office of Fair Work Australia in not interviewing him prior to compilation of its report.
Conclusion
As a consequence of the matters set out above, I am satisfied that the Applicant is only entitled to his unpaid wages which cumulatively amount to $6,668.05. An order will be made to that effect.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Date: 6 September 2012
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