Dahdah v Roof Rack City (NSW) Pty Ltd
[2015] FCCA 1098
•4 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAHDAH v ROOF RACK CITY (NSW) PTY LTD | [2015] FCCA 1098 |
| Catchwords: INDUSTRIAL LAW – Whether employment covered by awards – whether pay slips complied with legislative requirements – whether compensation for unpaid overtime should be ordered when wages paid exceeded ordinary time pay entitlements. |
| Legislation: Fair Work Act 2009, ss.535, 536, 544 Workplace Relations Act 1996, s.208 |
| Textile, Clothing & Footwear Union of Australia v Givoni Pty Ltd (2002) 121 IR 250 |
| Applicant: | EDDY DAHDAH |
| Respondent: | ROOF RACK CITY (NSW) PTY LTD |
| File Number: | SYG 2232 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing dates: | 3 & 4 September 2014 |
| Date of Last Submission: | 4 September 2014 |
| Delivered at: | Sydney |
| Delivered on: | 4 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Joseph |
| Solicitors for the Applicant: | C & M Lawyers |
| Counsel for the Respondent: | Mr W. Brown |
ORDERS
The matter be listed for directions on 15 May 2015 in connection with the finding that the respondent contravened s.536(2) of the Fair Work Act 2009.
In all other respects the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2232 of 2013
| EDDY DAHDAH |
Applicant
And
| ROOF RACK CITY (NSW) PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The respondent, Roof Rack City (NSW) Pty Ltd (“Roof Rack City”) is a retailer of roof racks and other motor vehicle accessories. In or about April 2001, the applicant, Mr Dahdah, commenced employment with Roof Rack City as a sales and installation consultant at the company’s Haberfield shop. He alleged that in or about mid-2007, he was asked by the managing director of Roof Rack City to look after the Haberfield shop by himself and he continued to do so until his employment was terminated on 10 January 2013. Mr Dahdah denied that he had ever been appointed a store manager.
Mr Dahdah alleged that Roof Rack City failed to pay him his overtime and penalty rate entitlements from 13 September 2007 until 10 January 2013 and failed to provide proper pay slips as required by the Fair Work Act 2009 (“FW Act”) and the Fair Work Regulations 2009 (“FW Regulations”).
Mr Dahdah sought:
a)a declaration that Roof Rack City breached cl.15 of the Shop Employees (State) Award (“State Shop Award”) in relation to his alleged underpayment between 13 September 2007 and 31 December 2009 and an order that Roof Rack City pay him compensation in the amount of $15,871.20 plus interest; or
b)a declaration that Roof Rack City breached cl.18 of the Vehicle Industry – Repair Services and Retail (State) Award (“State Vehicle Retail Award”) in relation to his alleged underpayment between 13 September 2007 and 31 December 2009 and an order that Roof Rack City pay him compensation in the amount of $14,899.50 plus interest;
and
c)a declaration that Roof Rack City breached the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (“Modern Vehicle Retail Award”) in relation to his alleged underpayment between 1 January 2010 and 10 January 2013 and an order that Roof Rack City pay him compensation in the amount of $22,488.18 plus interest; or
d)a declaration that Roof Rack City breached the General Retail Industry Award 2010 (“Modern Retail Award”) in relation to his alleged underpayment between 1 January 2010 and 10 January 2013 and an order that Roof Rack City pay him compensation in the amount of $23,125.08 plus interest.
Mr Dahdah also sought the imposition of pecuniary penalties in relation to the above breaches and in relation to the alleged failure by Roof Rack City to provide him with adequate pay slips from 1 July 2009 until the end of his employment in January 2013.
Allegations
13 September 2007 to 31 December 2009
Mr Dahdah alleged that between 13 September 2007 and 31 December 2009 (120 weeks in total), he worked no fewer than forty hours per week on weekdays and for six hours per day on no fewer than two Saturdays in every four. He alleged that he was not paid any overtime for hours worked in excess of thirty-eight hours in any week.
Mr Dahdah alleged that pursuant to cl.15 of the State Shop Award he was entitled to overtime payments of two hours at time and a half for each Monday to Friday period, and two hours at time and a half plus four hours at double time for each Saturday that he worked. He alleged that the correct rate of pay for a level 4 employee under the State Shop Award was $15.56 per hour and that he was therefore entitled to the gross sum of $15,871.20 in respect of this aspect of his claim.
Mr Dahdah alleged in the alternative that pursuant to cl.18 of the State Vehicle Retail Award, he was entitled to overtime payments of two hours at time and a half for each Monday to Friday period, and three hours at time and a half plus three hours at double time for each Saturday that he worked. He alleged that the correct rate of pay for a level 3 employee under the State Vehicle Retail Award was $15.05 per hour and that he was therefore entitled to the gross sum of $14,899.50 in respect of this aspect of his claim.
1 January 2010 to 10 January 2013
From 1 January 2010 Mr Dahdah’s employment was covered by a modern award.
Mr Dahdah alleged that between 1 January 2010 and 10 January 2013 (106 weeks in total), he worked no fewer than forty hours per week on weekdays and for six hours a day on no fewer than two Saturdays in every four. He alleged that, in breach of a modern award, he was not paid any overtime for hours worked in excess of thirty-eight hours in any week.
Mr Dahdah alleged that pursuant to cl.28 of the Modern Vehicle Retail Award, he was entitled to overtime payments of two hours at time and a half for each Monday to Friday period, and three hours at time and a half plus three hours at double time for each Saturday that he worked. He alleged that he had been a vehicle industry RS&R level 5 employee under that award and was entitled to the gross sum of $22,488.18.
Mr Dahdah alleged in the alternative that pursuant to cl.28 of the Modern Retail Award he was entitled to overtime payments of two hours at time and a half for each Monday to Friday period, and three hours at time and a half plus three hours at double time for each Saturday that he worked. He alleged that he had been a level 4 employee for the purposes of that award and entitled to a gross sum of $23,125.08.
Extra hours and pay slips
Mr Dahdah alleged that he also worked other additional hours, particularly during Easter, school holidays and at Christmas. He alleged that during those holiday periods it was quite common for him to work seven days a week, including some evenings, but he received no payments for overtime or other penalties or allowances for the hours worked.
Mr Dahdah also alleged that he was paid an hourly rate and received pay slips on a fortnightly basis. He alleged that the pay slips did not set out the number of hours he worked, his hourly rate or the annual rate, thus breaching s.536 of the FW Act and reg.3.46 of the FW Regulations.
Defence
In its defence, Roof Rack City alleged that:
a)from 2007 Mr Dahdah had been a managerial employee on an annual salary;
b)Mr Dahdah’s employment was not governed by any of the awards he identified;
c)if any awards did apply, they were the State Vehicle Retail Award and the Modern Vehicle Retail Award;
d)Mr Dahdah had been paid significantly more than any entitlements he might have had under those two awards;
e)if Mr Dahdah’s employment was governed by an award his agreed salary included overtime, penalties and allowances; and
f)as Mr Dahdah’s pay had been based on an annual salary, it had not been required to provide pay slips.
Awards
Relevant NAPSA
There was no dispute that when Mr Dahdah was first employed by Roof Rack City he was employed subject to an award. However, the parties were not agreed on whether it had been the State Shop Award or the State Vehicle Retail Award. At all times relevant to the causes of action alleged in this proceeding, each of those awards had become, by virtue of the Workplace Relations Amendment (Work Choices) Act 2005, a federal notional agreement preserving state award (“NAPSA”), respectively the Shop NAPSA and the Vehicle Retail NAPSA.
From March 2001 until 1 January 2010, cl.37 of the State Shop Award and the Shop NAPSA relevantly provided that that instrument applied:
… to all classes of employees employed under classifications in this award who work in or in connection with a retail shop, employees employed in the sale of goods by retail away from the employer’s place of business in the State within the jurisdiction of the Retail Employees (State) Industrial Committee and the Salesmen, Outdoor (State) Industrial Committee, excluding the County of Yancowinna …
and that those falling within the jurisdiction of the Retail Employees (State) Industrial Committee relevantly were:
All persons employed in or in connection with a shop and/or automatic vending device including (but without limiting the generality of the foregoing) sales assistants, self-service employees, demonstrators, ticket writers, checkout operators, grocery orderperson, reserve stock hands, display hands, window dressers, persons engaged in the hiring of goods in a shop, office assistants, telephone attendants, delivery clerks, persons employed on machines designed to perform or assist in performing any clerical work whatsoever, and cashiers employed solely as cashiers and/or on other clerical duties, in the State, …
excepting …
Persons employed selling motor oils, accessories and petrol at or in motor garages and parking and/or service stations or petrol from petrol pumps; …
In relation to coverage, the State Vehicle Retail Award and the Vehicle Retail NAPSA relevantly provided:
44. Area, Incidence and Duration
(a)This Award shall apply to the classes of employees referred to in clause 6, Wage Rates, and Clause 9, Junior Employees, of this award, employed in vehicle service shops (shops for the sale of motor spirit, motor oil or vehicle accessories), motor garages and/or service stations and/or petrol service stations within the jurisdiction of the Vehicle Industry (State) Industrial Committee.
(b)This Award rescinds and replaces the Vehicle Industry - Repair Services and Retail (State) Award published 30 November 2001 (329 I.G. 973) and all variations thereof.
…
VEHICLE INDUSTRY (STATE) INDUSTRIAL COMMITTEE
Industries and Callings
Employees engaged in washing, cleaning and/or detailing and/or greasing internal combustion propelled vehicles such as buses, cars, lorries and vans in motor garages, motor vehicle dealers, petrol service stations, and persons employed in selling motor oils and accessories and petrol at or in motor garages, and/or service stations, or petrol from petrol pumps, within the State, excluding the County of Yancowinna;
excepting motor mechanics and other craftsmen and their assistants who perform any of such duties incidentally to their general duties, and shop assistants; …
(emphasis added)
The State Shop Award and the Shop NAPSA purported to cover the retail field subject to identified exceptions of which
Persons employed selling motor oils, accessories and petrol at or in motor garages and parking and/or service stations or petrol from petrol pumps
was one. That exception reflects part of the coverage of the State Vehicle Retail Award and the Vehicle Retail NAPSA. Mr Dahdah was not employed at or in a motor garage and, if not a manager, was a shop assistant. I therefore conclude that, to the extent that Mr Dahdah’s employment was governed by a State award or NAPSA, it was governed by the State Shop Award and the Shop NAPSA.
Shop NAPSA
The Shop NAPSA provided:
15. Overtime
The rate of overtime shall be time and one-half for the first two hours on any one day and at the rate of double time thereafter, except on a Sunday which shall be paid for at the rate of double time.
(i)An employee shall be paid overtime for all work as follows:
(a) In excess of:
(1) 38 hours per week; or
an average of 38 hours per week in accordance with clause 10, Hours;
…
Part B of the Shop NAPSA stipulated the wages which a person it covered should be paid. A “Group 4” employee was characterised as:
Shop Assistants in charge of a shop or a department in a shop not being a shop assistant temporarily in charge during the absence of persons ordinarily in charge of the shop or department, but including employees employed as relieving shop assistants in charge of a shop …
The relevant pay rate for a Group 4 employee was determined by whether the employee had the duty of buying and by how many assistants they supervised. Relevantly, a shop assistant with buying duties and in charge of up to four assistants was entitled to the following weekly ordinary time wages:
a) from the first full pay period commencing on or after 28 July 2007
$595.20
($15.66/hr)b) from the first full pay period commencing on or after 28 July 2008
$619.00
($16.29/hr)c) from the first full pay period commencing on or after 28 July 2009
$636.30
($16.74/hr)
During the period 1 July 2009 until 31 December 2009, the Shop NAPSA continued to apply as a transitional instrument under item 2 of sch.3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“FW (TPCA) Act”) and the pay rates it prescribed which, by virtue of s.208 of the Workplace Relations Act 1996 (“WR Act”) (which was found in div.2 of pt.7 of the WR Act), were a “preserved APCS”, continued in operation as a transitional minimum wage instrument under item 5 of sch.9 to the FW (TPCA) Act.
Relevant modern award
Mr Dahdah postulated that from the commencement of the modern award system under the FW Act on 1 January 2010, his employment was covered by the Modern Retail Award or the Modern Vehicle Retail Award.
The Modern Retail Award covers employers in the general retail industry and their employees in the various classifications listed in cl.16 and sch.B to that award. The definition of “general retail industry” in cl.3 excludes “motor vehicle retailing and motor vehicle fuel and parts retailing” but cl.B.4.3 of sch.B to that award cites amongst the indicative job titles usually within the definition of a Retail Employee level 4 “A Qualified Auto Parts and Accessories Salesperson”.
Clause 4 of the Modern Vehicle Retail Award provides:
4. Coverage
4.1This award covers employers throughout Australia of employees engaged in vehicle manufacturing and/or vehicle industry repair, services and retail, as defined in this clause, to the exclusion of any other modern award and where the employer’s establishment, plant or undertaking is principally connected or concerned with:
(a)the selling, distributing, dismantling/wrecking/
restoring, recycling, preparing for sale, storage, repairing, maintaining, towing, servicing, and/or parking of motor vehicles of all kinds, … and equipment or parts or components or accessories thereof including the establishments concerned for such vehicles and the like;
(b)operations or allied businesses concerned with selling, distributing or supplying running requirements for vehicles (including motor fuels, gas and oils);
…
(e)the manufacturing, assembling or repairing of carriages, carts, wagons, trucks, motor cars, bodies, motorcycles, railway cars, tram cars, side-cars or other vehicles or parts or components or accessories in wood, metal and/or other materials;
…
(emphasis added)
Although the Modern Retail Award’s coverage exclusion referred to above at [24] does not refer in terms to the sale of vehicle accessories, which roof racks plainly are, it is apparent that the Modern Retail Award does not intend to cover the areas covered by the Modern Vehicle Retail Award. The exclusion in question does not refer to all aspects of the industries covered by the Modern Vehicle Retail Award, but to do so would be impractical. Having regard to the need to take a practical approach to the interpretation of the Modern Retail Award, and seeking to determine its objective meaning from its terms and context, I conclude that the exclusion in question is best understood to be a short-hand reference to the industries covered by the Modern Vehicle Retail Award.
I find that Roof Rack City’s business is principally connected or concerned with the specialised field of the sale of, and the provision of services (i.e. installation) concerning, motor vehicle accessories and so is covered by the Modern Vehicle Retail Award. It is not part of the broader “general retail industry” governed by the Modern Retail Award, notwithstanding that that award will cover “A Qualified Auto Parts and Accessories Salesperson” employed in the general retail industry.
Consequently, I find that, to the extent that Mr Dahdah’s employment from 1 January 2010 was covered by a modern award, it was covered by the Modern Vehicle Retail Award.
Modern Vehicle Retail Award
Clause 37 of the Modern Vehicle Retail Award provides for a thirty-eight hour working week for vehicle industry RS&R employees.
Clause 28 of the Modern Vehicle Retail Award relates to overtime rates and relevantly provides:
28.Overtime rates
…
28.2An employee required to work outside the ordinary hours as prescribed by the award will be paid as follows:
(a) on a Sunday—at the rate of double time;
(b)on a public holiday—at the rate of double time and a half; and
(c)on any other day—time and a half for the first three hours and double time thereafter. Payment at double time is to continue until the completion of the overtime work.
…
For the purposes of the Modern Vehicle Retail Award, cl.B.5 of sch.B to that award relevantly defines a Vehicle Industry RS&R Employee in the following terms:
B.5 Vehicle industry RS&R—employee—Level 5 R5
A repair and service employee at this level performs work above and beyond the skills of an employee at Level R4 and would have 20 modules of a nationally accredited RS&R Certificate or equivalent training. A Level R5 employee is required to work to the level of their training.
A retail employee at this level will be qualified to perform work of an experienced automotive spare parts salesperson:
●requires minimum supervision;
●possesses technical job skills within the level of their training;
●works from detailed instructions and procedures;
●co-ordinates work in a team environment or works individually under limited supervision;
●exercises discretion within their level of skills and training;
●assists in the provision of on-the-job training in conjunction with tradespersons and supervisor/trainers;
●may prepare reports and interpret written information relevant to tasks performed;
●understands and is responsible for quality of own work;
●possesses competent communications and written skills;
●possesses technical job skills within their level of training;
●possesses customer contact skills to perform tasks at this level;
●undertakes specialist troubleshooting, problem solving and maintenance skills at this level;
●has multiple manual skills;
●can use relevant tools and equipment;
●can operate numerical/computer equipment supplied in sales, distribution, repair, servicing and relevant to tasks at this level; and
●has adequate negotiating skills in sales and services to perform tasks at this level.
Classifications contained within Level 5 R5
●Automotive parts salesperson—experienced
●Automotive servicer or checker
●Radiator repairer—1st class
The minimum weekly wage rates for a level 5 employee are contained in cl.33 of the Modern Vehicle Retail Award.
By virtue of cl.A.3.3 of sch.A to the Modern Vehicle Retail Award, the pay scales of the relevant transitional instrument, in this case the Shop NAPSA, continued to apply as a transitional minimum wage instrument under item 5 of sch.9 to the FW (TPCA) Act until 30 June 2010.
A Level 5 employee was entitled in subsequent periods to the following weekly ordinary time wages:
a) from the first full pay period commencing on or after 1 July 2010 $645.40
($16.98/hr)b) from the first full pay period commencing on or after 1 July 2011 $667.30
($17.56/hr)c) from the first full pay period commencing on or after 1 July 2012 $686.70
($18.07/hr)
Records and pay slips
Chapter 2 of the Workplace Relations Regulations 2006 (“WR Regulations”) dealt with the giving of pay slips and provided that only a workplace inspector (now the Fair Work Ombudsman) might apply for an order based on a breach of the relevant regulations.
Section 535 of the FW Act relevantly provides:
Employer obligations in relation to employee records
(1)An employer must make, and keep for 7 years, employee records of the kind prescribed by the regulations in relation to each of its employees.
(2) The records must:
(a)if a form is prescribed by the regulations--be in that form; and
(b)include any information prescribed by the regulations.
…
Subdivision 1 of div.3 of pt.3-6 of the FW Regulations requires, amongst other things, that an employer keep records relating to:
a)an employee’s pay rate;
b)the gross and net amounts paid to an employee;
c)the number of overtime hours worked by an employee entitled to overtime payments;
d)details of any leave taken or accrued by an employee; and
e)details of any superannuation contributions for an employee.
Section 536 of the FW Act provides:
Employer obligations in relation to pay slips
(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.
Regulation 3.46 of the FW Regulations prescribes the information that must be included in a pay slip. It relevantly provides:
(1) For paragraph 536(2)(b) of the Act, a pay slip must specify:
…
(g)any amount paid to the employee that is a bonus, loading, allowance, penalty rate, incentive‑based payment or other separately identifiable entitlement; and
…
(3)If the employee is paid at an hourly rate of pay, the pay slip must also include:
(a)the rate of pay for the employee’s ordinary hours (however described); and
(b)the number of hours in that period for which the employee was employed at that rate; and
(c) the amount of the payment made at that rate.
(4)If the employee is paid at an annual rate of pay, the pay slip must also include the rate as at the latest date to which the payment relates.
Evidence
Eddy Dahdah
Recruitment
Mr Dahdah deposed that he commenced employment with Roof Rack City in April 2001 as a sales and installation consultant at its Haberfield shop. He deposed that before commencing his employment, he was interviewed by a manager of Roof Rack City, Firth Fraser, and was advised that he was expected to work Monday to Friday, from 8.30am to 5.30pm, with a one hour break for lunch. He was also advised at the interview that he would be expected to work two Saturdays in every four from 8.30am to 4pm with half an hour for lunch and, if he was required to work a third weekend in any four week period, he would receive a rostered day off (“RDO”). Mr Dahdah deposed that he was told at the interview that his initial hourly rate would be $12.82. He deposed that he had signed a contract at the time of the commencement of his employment but, despite repeated requests, he was never provided with a copy. Further, Mr Dahdah deposed that he was not told at that time that he was not entitled to overtime or penalties or that his pay was intended to compensate for any award entitlement to overtime or weekend penalties.
RDOs
Mr Dahdah deposed that he frequently worked additional Saturdays but did not receive any RDOs due to staffing issues and was forced to take personal or sick leave. He deposed that except for one occasion, he did not receive an hour for lunch and was only ever able to take half an hour for his lunch break on weekdays.
Mr Dahdah deposed that some months after he commenced his employment with Roof Rack City, he asked the manager of the Haberfield and Pymble shops, Mr Fraser, about overtime and RDOs. He deposed that Mr Fraser told him that as he had agreed to work Saturdays, he was not entitled to overtime. Mr Dahdah deposed that he had not agreed to that arrangement when he commenced his employment but did not “make waves” about it because Mr Fraser had become angry at him for making the inquiry and he did not want to lose his job.
Hours
Mr Dahdah deposed that in about 2005, his hours changed to 8.30am to 5pm on weekdays (with a half hour lunch break) and 8.30am to 3pm on two Saturdays in every four (with a half hour lunch break). He deposed that over the next couple of years his weekday hours changed to 9.30am to 6pm (with a half an hour lunch break) and then to 10.30am to 7pm (with a half an hour lunch break). He deposed that he had not received any overtime payments or other penalties for working those hours. He further deposed that his hours later changed to 9.30am to 6pm from Monday to Wednesday and 10.30am to 7pm on Thursdays and Fridays after he asked to start work an hour later. He deposed that Roof Rack City’s retail sales manager, Mr Dixon, agreed to his later start on Thursdays and Fridays as he, Mr Dahdah, had “to stay back with the renovations anyway”. His Saturday hours remained unchanged. He deposed that he rarely finished work at the rostered times. He also deposed that the rosters were not stable, tended to change frequently and did not reflect the hours that were necessary to complete all of the work.
Mr Dahdah deposed that there were a few pay periods, for example around Christmas in 2009, where he did receive additional payments which were described on his pay slips as “time and a half” or “double time”. However, he deposed that he undertook a lot more overtime during those periods. From late November to early January in 2009-2010 and 2010-2011, Mr Dahdah deposed that he worked seven days a week (except for public holidays) from 8.30am to anywhere between 5pm and 9pm and did not receive compensation for those hours. He deposed that from late 2011 to mid-2012, he usually worked eight to twelve hour shifts seven days a week, including a couple of fifteen and sixteen hour shifts. He further deposed that he worked three to four weeks straight during Christmas, Easter, school holidays and the snow season, working overtime on most of those days. He deposed that he was not paid overtime during those periods. He deposed that when the Haberfield shop commenced Sunday trading in October 2011, the employees were promised extra for hours worked on Sundays but that did not eventuate.
Mr Dahdah deposed that throughout his employment, he was never asked to fill out a time sheet to record the hours that he had worked. He deposed that Mr Fraser would phone through his hours to head office. After Mr Fraser left, he was not asked to put in timesheets as Roof Rack City knew that he was there at least while the shop was open. Mr Dahdah deposed that he was not aware that there was a direction to phone his hours in to head office.
Mr Dahdah deposed that while he had not received explicit directions to work longer hours, the management of Roof Rack City had been aware of his extra hours because he had spoken to management on a daily basis at times of the day where it would have been clear that he had been working back. This was never objected to by Roof Rack City as it was clearly understood that the hours being worked were required to get the work completed.
Mr Dahdah further deposed that at the end of each day, banking and sales summaries were sent to Richard Cropley, the managing director; Tony Gapes, the general manager; Mr Dixon; Mr Fraser and to payroll and accounts and so management would be aware who was working back and what time they had finished work. He said that head office knew that he was the only person working in the Haberfield shop so when they received an email between 7pm and 10pm, they would know that it was from him.
Mr Dahdah said that he often requested payment for his overtime. However, in cross-examination he accepted, based on pay slips he was shown, that he was paid overtime rates in the fortnights ending 17 December 2008, 31 December 2008, 20 May 2009, 16 December 2009, 30 December 2009, 29 June 2011, 19 October 2011, 2 November 2011, 16 November 2011, 14 December 2011, 28 December 2011, 11 January 2012, 25 January 2012, 7 March 2012, 21 March 2012, 4 April 2012, 2 May 2012, 16 May 2012, 30 May 2012, 13 June 2012, 27 June 2012, 1 July 2012, 25 July 2012, 8 August 2012, 22 August 2012, 5 September 2012, 19 September 2012, 3 October 2012, 17 October 2012 and 31 October 2012.
Mr Dahdah said that he was not continuously paid for overtime and a lot of the payments to which he had been taken referred to a period during which the Haberfield shop had been undergoing renovations and when he had been working late on those renovations. Mr Dahdah said that he had never been told that he had to tell anyone that he was working back for the renovations and in any event they knew about it. He said that the extra pay he received was only for the Sunday work he performed even though, for instance, in the 2009 Christmas period he worked from November to January taking only public holidays off.
Mr Dahdah deposed that Mr Dixon provided him with a new contract in or about December 2011 which did not offer him any more pay even though it described him as a manager. He deposed that after he received the contract he had a conversation with Mr Dixon to the following effect:
Mr Dahdah:I don’t want to sign a contract with added responsibility, no extra pay, nothing done for my overtime and the company can move me.
Mr Dixon:There is no negotiation on pay. I don’t believe in overtime.
Conditions
Mr Dahdah’s evidence was that, except for some Saturdays, he essentially worked by himself at the Haberfield shop from the point Paul Lindsay left in 2007 until about April 2012 when Arthur Kornel came to work there. He said that other than an occasional person at times when the shop was expected to be busy, he only received extra staff at Christmas and New Year and in the 2009 and 2010 Christmas periods he worked alone.
Store manager
Mr Dahdah deposed that in mid-2007 he was approached by Mr Cropley and asked whether he could look after the Haberfield shop on his own. At that time, there was no one in charge of the shop or the staff. He deposed that they had a conversation to the following effect:
Mr Cropley: Can you run the store as a one man show?
Mr Dahdah:Yes I can give it a go, I don’t see why not. I suppose I can call the girls in accounts or call you if I’m not sure what to do.
Mr Dahdah denied that he was offered or accepted the store manager’s position or was offered or accepted a higher salary for running the Haberfield shop. He said that he simply stepped up to do more work when Mr Lindsay left. Mr Dahdah said that he did not have the expertise to be a manager, saying “[Richard] would never give me the job”.
Mr Dahdah deposed that when he was introduced to Mr Dixon by Mr Gapes, the latter said words to the effect of “Eddy looks after Haberfield for us” and that the first time that he ever saw himself described as a “manager” was when he received the draft contract in or about December 2011. He deposed that he was provided with business cards referring to himself as “Store Manager” around the same time as the contract. He gave those cards to customers as they detailed the Haberfield shop’s contact information but they ran out after six months and he did not get any more.
Mr Dahdah deposed that he attended staff meetings with the rest of the staff but he would not characterise them as management meetings. He deposed that he only wrote three or four pre-meeting performance reports in 2012.
Mr Dahdah deposed that from mid-2007 until his termination in January 2013, his tasks included ordering, paperwork, banking, dispatch, installations, customer service and sales as well as supervising less senior staff members. He deposed that at no time did he ever have the authority to discipline other staff or to tell them what to do and that all disciplining had to be done by the managers of Roof Rack City. He deposed that Mr Dixon had made it clear to him on more than one occasion that he was not the manager, had no authority over the other staff and that he had to report issues to Mr Dixon for him to deal with them.
Mr Dahdah deposed that he had never received training relating to occupational health and safety and did not have a management role in implementing and evaluating safe work practices. He did not receive any leadership training or instructions regarding equal opportunity or human resources policies and was not informed that those matters were part of his role. He said that the only training he had been given was in relation to recording or reporting on sales and in the installation of roof racks. He deposed that Roof Rack City’s head office communicated with all employees and he was not told that he had to communicate everything from head office to the employees at the Haberfield shop. Mr Dahdah deposed that he would usually undertake the banking because that task generally fell on the person who was last to leave the shop, not because he was a manager. He deposed that stock management was the responsibility of all staff members and all price management was undertaken by head office.
Greg Dixon
Mr Dixon has been the retail business manager of Roof Rack City since March 2011. Mr Dixon deposed that he first met Mr Dahdah at the end of June 2011 and was his immediate manager until Mr Dahdah’s employment was terminated on 10 January 2013. Mr Dixon said that Mr Dahdah’s role involved customer service, sales and installation, end of day paperwork, maintenance and housekeeping, purchasing and receipting orders.
Mr Dixon said that when he started with Roof Rack City, Mr Dahdah was introduced to him by Mr Gapes as the manager of the Haberfield shop. At that time the Haberfield shop had two-full time employees and some casual employees. The full-time employees were Mr Dahdah and Mr Lindsay. Mr Dixon agreed that there had been a disagreement between Mr Dahdah and Mr Lindsay in early 2012 and Mr Lindsay was moved to another location. Subsequently Mr Kornel started work at the Haberfield shop.
Mr Dixon deposed that Mr Dahdah had been appointed to the position of manager at the Haberfield shop some time in 2007 and was issued business cards to that effect. However, in a statement he made in relation to unfair dismissal proceedings in the Fair Work Commission, Mr Dixon said:
…
5.Eddie worked best as a one man show, I believe he found it hard to work with anyone else as he believed their work standards weren’t like his or up to Eddy’s standards in his opinion. This was pointed out to Eddy a few times that he was a co-worker to other employees, not superior.
…
14.I was advised by our payroll … that Eddy Dahdah and Firth Fraser were paid differently to all the other employees. Both had an agreements [sic] that was a hand shake deal with the Director of the Company, Richard Cropley. They were paid at a much higher rate of pay and if they worked two Saturdays a fortnight were paid overtime at time and a half; they were also to take one day off per week.
…
Annexure 6 to Mr Dixon’s affidavit demonstrated that Mr Dahdah and Mr Lindsay were on the same rate of pay in the 2007/2008 and 2008/2009 financial years, even though Mr Dahdah was said to be a manager. However, Mr Dahdah’s pay increased in the 2009/2010 financial year. Mr Dixon disagreed that the identity of the two men’s pays indicated that Mr Dahdah was not senior to Mr Lindsay.
Mr Dixon disagreed that Mr Dahdah had no authority over other employees and no authority to discipline them. However, in his statement for the Fair Work Commission proceedings, Mr Dixon said:
8.It became apparent on October/November 2012 that Eddy had been sending Arthur Kornel home early from work as Eddy was frustrated and angry with Arthur’s work practices. Eddy was sternly told verbally that he does not have the authority to send anyone home and he needed to find a way to get along with his fellow employees.
Mr Dixon said that in late 2011 contracts were issued to staff because he saw a need to regularise and formalise the company’s relationships with its employees. Mr Dixon said that Mr Dahdah’s contract was not intended to change his role from being an installer/fitter to being a manager but just to put the existing situation in writing. However, in his statement for the Fair Work Commission proceedings, Mr Dixon said:
19.… The new Contracts where [sic] drawn up and dated 22 December 2011. This Contract was also to change Eddy’s position from Installer fitter to Store Manager (offered to Eddy because of his work and loyalty) to be effective 13 January 2012.
…
Mr Dixon said that notwithstanding his statement made in the unfair dismissal proceedings in the Fair Work Commission, he still believed that at the time he started work with Roof Rack City, Mr Dahdah was a manager. He said that Mr Dahdah’s duties did not change over time and he disagreed that Mr Dahdah was simply the first amongst equals.
Mr Dixon said that even though he did not sign it, Mr Dahdah complied with the December 2011 contract and performed the role in accordance with the listed duties. He deposed that, as manager, Mr Dahdah had a number of key duties and responsibilities relating to health, safety and environment, customer service, leadership, communication, management of retail fundamentals, monitoring and maintenance of business and cost controls, security, stock management, price management, compliance and overseeing compliance generally. He deposed that all store managers, including Mr Dahdah, were required to attend monthly management meetings at Roof Rack City’s head office and to submit detailed management reports prior to those meetings.
Mr Dixon relevantly annexed six of Mr Dahdah’s PAYG summaries to his affidavit. They indicated that Mr Dahdah had been paid gross:
a)$46,669 for the period 1 July 2007 to 30 June 2008;
b)$46,835 for the period 1 July 2008 to 30 June 2009;
c)$51,700 for the period 1 July 2009 to 30 June 2010;
d)$56,301 for the period 1 July 2010 to 30 June 2011;
e)$58,923 for the period 1 July 2011 to 30 June 2012; and
f)$51,235 for the period 1 July 2012 to 10 January 2013.
Hours of work
Mr Dixon deposed that at the start of Mr Dahdah’s engagement as a store manager, he was rostered to work from 8.30am to 5pm on weekdays and from 8.30am to 3pm on every second Saturday. He deposed that on 9 October 2011 the Haberfield shop commenced Sunday trading and Mr Dahdah was paid time and a half for hours he worked on rostered Sundays. He said that Mr Dahdah received a set amount for eleven days of work per fortnight and was paid extra for Sundays.
Mr Dixon deposed that Mr Dahdah’s rostered hours were consistent with the opening hours of the Haberfield shop. He denied that Mr Dahdah’s hours changed in 2010 to 9.30am to 6pm on Wednesdays and 10.30am to 7pm on Thursdays and Fridays. He deposed that the shop closed at 5pm and there was no regular need for any staff member to be rostered to work those hours. He also deposed that no alteration of hours had been made by him in 2011 or by senior management in the period beforehand. The Haberfield shop did not operate after 5.00pm on any day of the week until January 2012.
Mr Dixon deposed that he was aware that Mr Dahdah would not arrive on time for his rostered start time and frequently commenced his shifts between 9am and 10am. He deposed that he was aware that prior to 2012, Mr Dahdah would, on occasion, book work at the end of usual business hours in order to secure an order. On such occasions, Mr Dixon had no objection if Mr Dahdah started work later the next day, however, he deposed that there was no general change to later start or finishing times before January 2012.
Mr Dixon deposed that in January 2012 Roof Rack City decided to extend opening hours at the Haberfield shop until 6pm on Mondays, Tuesdays and Wednesdays and until 7pm on Thursdays and Fridays. All employees and managers were allocated either the earlier shift from 8.30am to 5pm or the later shifts from 9.30am to 6pm on Mondays to Wednesdays and 10.30am to 7pm on Thursdays and Fridays. Mr Dixon deposed that as Mr Dahdah had previously struggled to make the 8.30am start time, he decided to allocate him the later rostered start time, which also assisted him to perform the lock up and end of day duties that he executed as a store manager.
Mr Dixon deposed that despite the later start time, Mr Dahdah still regularly arrived at work after his regular start times. Mr Dixon deposed that as the store manager, Mr Dahdah could work autonomously in setting his hours of work within reason but he had never directed Mr Dahdah to work after hours. He further deposed that any requests for overtime in addition to an employee’s regular rostered hours had to be approved by him before the hours were performed and that no requests for overtime were ever received from Mr Dahdah.
Mr Dixon said that ordinarily there was only one full-time staff member at the Haberfield shop with Mr Dahdah, being Mr Lindsay, then Mr Kornel and someone else in-between.Annexed to Mr Dixon’s affidavit were printouts of Roof Rack City’s rostering arrangements in 2011 and 2012. They demonstrated that Mr Lindsay was working at the Haberfield shop in January 2011 and that he continued to work there until March 2012, with a period at the Rydalmere shop from mid-June to early August 2011. The records also showed that Mr Kornel worked at the Haberfield shop throughout 2012, commencing in March of that year.
According to Mr Dixon, as store manager Mr Dahdah was meant to complete his own timesheet and supervise the timesheets of others but he never did. Mr Dixon said that Mr Dahdah used to talk to the accounts department. He deposed that Mr Dahdah had refused or neglected to follow a direction that all staff and managers telephone through their hours worked. He deposed that if Mr Dahdah had worked unrostered hours, he had failed to inform the company’s payroll team.
Richard Cropley
Mr Cropley is the founder and managing director of Roof Rack City.
Mr Cropley deposed that Mr Dahdah worked at Roof Rack City’s Haberfield shop but on the odd occasion also filled in at the Pymble shop. Mr Dahdah reported to Mr Gapes and then, after March 2011, to Mr Dixon.
Mr Cropley deposed that there had been no written contract of employment offered to Mr Dahdah when he started in 2001 and that his salary was at least $10,000 above the rate required by the award. He deposed that staff had flexibility in their hours and breaks during the day as customers would come in during lunch hours. He said:
We had a very flexible arrangement and, in real terms, they knew they would be sitting down there reading the newspaper a lot of the day.
Mr Cropley said that when he spoke to Mr Dahdah in 2007 about taking over responsibility for the Haberfield shop he said words to the effect of:
You can look after this store and manage it. I know you that well after all these years and you have done a damn good job. It’s time you – you know – took control of the whole place.
Mr Cropley said that he had wanted Mr Dahdah to take responsibility for looking after the shop. Mr Cropley did not go through the full terms and conditions of the new appointment with Mr Dahdah or the question of pay but Mr Dahdah accepted the offer expressly.
Mr Cropley deposed that as store manager, Mr Dahdah’s duties included:
a)management of the Haberfield shop’s day to day operations including all of its employees;
b)ordering stock and management of stock control;
c)management and implementation of policies, procedures and work practices at the shop;
d)training, monitoring and direction of subordinate employees;
e)management of financial sales;
f)asset management;
g)execution of price strategies; and
h)management of allocated rosters including budgeting of labour costs, management of overtime and employee performance management.
Mr Cropley said that the role had greater responsibility than Mr Dahdah’s previous job and was supported by an assistant as the level of business required two staff members during the week and more on Saturdays, their busiest day. Mr Dahdah took “ownership” of the shop and was issued with business cards reflecting his position as store manager.
Mr Cropley said that when Mr Dahdah was manager at the Haberfield shop he worked with and was senior to Mr Lindsay. Sometimes he worked alone but because the turnover of the Haberfield shop required two staff members, generally he was with others, mostly Messrs Lindsay and Kornel. Mr Cropley expected the staff to be interchangeable and for both to do hands-on work. He said that there were days when there was no work and others which were busy and it was important to be flexible in order to deal with customers when they came in. Mr Cropley said that as the person in charge of the shop, Mr Dahdah also served customers and would install roof racks and that his principal job was to sell goods to the public.
Mr Cropley said that Mr Dahdah’s job was to look after the shop and to manage people. Even so, Mr Cropley did not recall giving Mr Dahdah authority to discipline staff and said Mr Dahdah did the right thing by reporting things to head office.
Mr Cropley said that Mr Dahdah might not have had a pay rise in 2007 but he was paid over the relevant award anyway. Mr Cropley deposed that all of Roof Rack City’s store managers were paid a salary well above the award rates received by an installer. Mr Cropley agreed that Mr Dahdah’s seniority to Mr Lindsay was inconsistent with them being on the same rate of pay but said that Mr Dahdah was definitely superior to Mr Lindsay.
Mr Cropley’s evidence was that Mr Dahdah worked thirty-eight hours on weekdays plus alternate Saturdays. He deposed that within reason Mr Dahdah could work autonomously in setting his hours of work, but there was no reason for him to stay back at work and neither he nor Mr Dixon had directed Mr Dahdah to work after hours. Mr Cropley deposed that all requests for overtime had to be approved in advance by Mr Dixon and no requests for overtime were ever received from Mr Dahdah. Mr Cropley confirmed that Mr Dahdah had at least done some painting at the Haberfield shop but he said that he had paid for the shop’s renovations.
Mr Cropley deposed that at the outset of his engagement as a store manager, Mr Dahdah was rostered to work from 8.30am to 5pm on Mondays to Fridays and 8.30am to 3pm on every second Saturday. However, on 9 October 2011 the Haberfield shop commenced Sunday trading. Additionally, in January 2012 the opening hours of the Haberfield shop were extended to 6pm on Mondays, Tuesdays and Wednesdays and to 7pm on Thursdays and Fridays and as a result, all employees and managers were allocated the earlier shift from 8.30am to 5pm or the later shifts from 9.30am to 6pm on Mondays to Wednesdays and 10.30am to 7pm on Thursdays and Fridays.
Although Mr Cropley could not recall a conversation with Mr Dahdah which explained this, he said that Mr Dahdah’s overall pay took account of the Saturdays he worked. He said that Roof Rack City paid staff between $4,000 and $10,000 over the award to take account of matters such as Saturday work. Mr Dahdah was paid time and a half for any work performed on Sundays because such work had not been factored into earlier salary calculations.
Mr Copley said that the store managers would report hours worked, originally to Donna England and latterly to Tracey Tanner in the accounts department. Ms England and Ms Tanner recorded the details and would provide them to a payroll management contractor for the fortnightly preparation of the pay slips.
Mr Cropley said that contracts were issued to staff in late 2011 because Mr Gapes was standardising employment terms across the company. Mr Cropley deposed that Mr Dixon issued Mr Dahdah an employment contract dated 22 December 2011, defining his role as store manager. He disagreed that the contract was designed to make a change to Mr Dahdah’s position. Mr Cropley deposed that he was subsequently informed by Ms Tanner and Mr Dixon that Mr Dahdah took the contract and worked in accordance with its requirements without objecting to its terms although he did not sign or return it. He deposed that Mr Dahdah attended monthly management meetings at Roof Rack City’s head office, submitting detailed management reports prior to each meeting.
Submissions
Applicant’s submissions
Mr Dahdah submitted that he had been employed by Roof Rack City to sell and install motor vehicle accessories and that although his duties had expanded over time he had never agreed to be a manager, specifically the manager of Roof Rack City’s Haberfield shop.
Although Mr Dahdah’s employment commenced in 2001, due to the six year limitation period imposed by s.544 of the FW Act, he only made a claim for the period from September 2007.
Award coverage
Mr Dahdah submitted that he was never a salaried manager and that even if he had from time to time carried out functions which were consistent with a store manager’s level of responsibility, that did not preclude his employment being covered by an award. He submitted that this was more so as his work was mainly hands-on sales and installation work. He submitted that his duties as a whole fell under the identified awards. Mr Dahdah submitted that he had merely agreed to take on some extra responsibilities in addition to his normal work and that the concept of being the Haberfield shop’s manager was something of a fiction.
Mr Dahdah submitted that the plain meaning of the words in the relevant awards supported his allegation that his employment was covered by one or more awards. He submitted that given that the purpose of awards was to regulate minimum conditions of employment, they should not be considered to be restrictive in their application.
Mr Dahdah submitted that Mr Cropley’s evidence that he had agreed to take on a salaried position was vague and did not cite any direct conversation or documentation to corroborate it. He submitted that his pay slips did not support Roof Rack City’s assertions that he was paid an annual salary as a manager and, given the additional payments which were made to him, there was no basis to conclude that he had been paid an annual salary.
Mr Dahdah submitted that his discussions with Mr Cropley in June 2007 were informal and had not included any discussions about any terms and conditions, which was inconsistent with the allegation that his employment had changed from being award based to non-award based. He also submitted that in June 2007 he had been receiving $22.77 per hour in wages which did not change for two years, which was inconsistent with the allegation that he was moved from a waged to a salaried position at that time. He submitted that the contract which was provided to him in December 2011 stated that his employment was to be governed by the Modern Retail Award and that he was entitled to overtime for hours worked in excess of thirty-eight hours a week.
Before 1 January 2010
Mr Dahdah submitted that he had worked forty hours between Monday and Friday and six hours on Saturdays. He submitted that as the State Shop Award provided for ordinary working hours of thirty-eight hours a week, his two extra hours of work on weekdays and his Saturday hours were overtime and should have been paid as such. He submitted that it was irrelevant that Roof Rack City might have made over-award payments in relation to his ordinary hours. Referring to Textile, Clothing & Footwear Union of Australia v Givoni Pty Ltd (2002) 121 IR 250 at 266 [60]-[61], Mr Dahdah submitted that an over-award payment could not be set off against a different award obligation unless at the time the over-award payment was made it was made clear that it was paid in respect of the other obligation. He submitted that in his case there had never been any agreement between him and Roof Rack City to set any of his overtime entitlements off against over-award payments made in relation to his ordinary work hours.
Mr Dahdah submitted that some of his pay slips showed unexplained payments made at time and a half and double time rates but neither Mr Cropley nor anyone else had ever told him that his pay was intended to cover any hours he worked over the thirty-eight ordinary hours set out in the awards. He submitted that in those circumstances he was entitled to receive his overtime pay as claimed.
1 January 2010 and subsequently
Mr Dahdah submitted that he was a vehicle industry RS&R level 5 employee under the Modern Vehicle Retail Award. That classification referred to employees who could, amongst other things, co-ordinate work in a team environment, assist in the provision of on-the-job training and prepare reports.
Mr Dahdah submitted that cl.62 of that award, which applied to supervisory employees, did not apply to him because it required a written contract of employment.
Alternative claim
Mr Dahdah submitted that as his pay was based on seventy-six hours of work a fortnight, even if he were not covered by any award, if it was accepted that he had worked forty hours on weekdays and on alternate Saturdays then he was underpaid twenty hours in each four week period. He submitted that he was entitled to be paid a reasonable amount for that work and the best way of assessing the value of his work was by reference to the awards. Mr Dahdah submitted that because the Saturday hours had been rostered and he had been expected to work them, he had had a contractual right to be paid for those hours. He submitted that on the basis of a custom and practice of him being paid a certain hourly rate, he was also entitled to be paid that same rate for his Saturday hours.
Pay slips
Mr Dahdah submitted that his pay slips indicated that his standard fortnightly pay had increased during the period of his employment and that from time to time he had received overtime-type payments together with other payments which were made to him on a gratuitous basis. He submitted that, however, the pay slips were deficient, in particular, from February 2004 they only identified his standard fortnightly pay and did not identify the hours he worked, his classification or his hourly rate of pay. He pointed out that that fortnightly pay was calculated by multiplying seventy-six hours of work a fortnight with an hourly rate of pay.
Mr Dahdah submitted that Roof Rack City did not appear to have kept a record of his work hours. He submitted that in the absence of any such records, there was no primary evidence of his hours of work and the Court would have to make a determination on the available evidence. Mr Dahdah submitted that it should be accepted that throughout the entirety of his employment he normally worked Monday to Friday and on alternate Saturdays and that because he took no more than half an hour for lunch, he worked forty hours on weekdays and six hours on Saturdays. He submitted that even though he was paid for thirty-eight hours of work a week, there was no basis for finding, or any direct evidence, that he worked only those hours. He submitted that apart from the occasional overtime-type payments, he had not been paid for the hours he worked above thirty-eight hours a week.
Mr Dahdah submitted that Roof Rack had contravened s.536(2) of the FW Act by providing him with pay slips which did not set out his work hours or his rate of pay as required by regs.3.46(3) and 3.46(4) of the FW Regulations.
Respondent’s submissions
Store manager
Roof Rack City submitted that Mr Dahdah had not been covered by an industrial award during his employment. It submitted that he had been employed as a store manager, a position which was not covered by any award. It was submitted that Mr Dahdah had accepted the role of store manager and represented himself as such to customers verbally, through business cards and in his conduct towards other staff including by managing staff and attending management meetings at the head office.
Roof Rack City submitted that Mr Dahdah’s key duties as a manager included ensuring a safe working environment, customer service, leadership of the team at the Haberfield shop, communicating with staff at the shop, managing retail fundamentals, monitoring and maintaining business and cost controls, ensuring the security of the shop, stock management, price management, ensuring compliance with internal company policies and reporting any compliance incidents to the head office. It submitted that Mr Dahdah had also supervised and managed three other staff members and, as a manager, had attended management meetings at the head office and provided detailed management reports prior to those meetings. Roof Rack City submitted that Mr Dahdah’s duties and responsibilities as a store manager were substantially different to the duties set out in the classification levels in the Modern Vehicle Retail Award.
Roof Rack City submitted that there was no evidence that from 2007 onwards Mr Dahdah had approached anyone at Roof Rack City concerning his award entitlements. It submitted that he had been regarded by Mr Cropley and Mr Dixon as the manager of the Haberfield shop. It submitted that although Mr Dahdah and Mr Lindsay were initially at the same level, over time that changed and after 2007 Mr Dahdah was given managerial responsibilities including communication with senior management, reporting on other staff members conduct and reporting on sales figures, banking details and other matters.
Award coverage
Roof Rack City submitted that in determining whether Mr Dahdah’s employment was covered by an award, the Court had to consider the principal purpose test. Referring to a number of decisions of predecessors of the Fair Work Commission, Roof Rack City submitted that Mr Dahdah fell outside the coverage of any award because of the work he had performed and his level of seniority. It submitted that while he might have occasionally undertaken tasks which fell within some award classifications, those tasks had formed a minor part of his duties and responsibilities as a store manager. Roof Rack City submitted that the most important intention in offering Mr Dahdah the store manager position and in his acceptance was for him to manage shop activities, stock control and security, supervise other employees, monitor and report back on employees’ performance and grow the shop’s sales. It submitted that as Mr Dahdah was not a person covered by an industrial award, this Court had no jurisdiction to hear his claim.
Roof Rack City submitted that even if it was found that Mr Dahdah had been covered by an industrial award, it had not contravened the awards because it had paid Mr Dahdah substantially more than the award rates. It submitted that Mr Dahdah had been paid a salary which was intended to compensate him for any additional hours he might have been required to work above his ordinary hours in his store manager role. Roof Rack City submitted that Mr Dahdah did not make a claim for overtime until he was terminated for serious misconduct.
Roof Rack City submitted that Mr Dahdah had not notified or sought approval from Mr Dixon to work or be paid overtime and his overtime claim was based on material which could not be substantiated.
Roof Rack City submitted that because of the informal nature of the dealings in this case, Mr Dahdah could not properly quantify his alleged entitlements and the pay slips were insufficient to support the findings he sought.
Consideration
Award coverage
The first issue for decision in this case is whether Mr Dahdah was a managerial employee or a person whose employment was governed by the two awards which are potentially relevant.
The first point in that consideration is the conversation between Mr Cropley and Mr Dahdah in mid-2007 during which, Mr Cropley says, he told Mr Dahdah that he wanted him to take over the Haberfield shop. Mr Dahdah’s account was different from Mr Cropley’s in several significant respects, but it is Mr Cropley’s which I prefer as being more cogent and consonant with the totality of the evidence. For instance, Mr Cropley’s evidence was that he asked Mr Dahdah to take over the shop and manage it whereas Mr Dahdah deposed that Mr Cropley had asked him if he could run the shop “as a one man show”. It is apparent that it was never Mr Cropley’s intention that Mr Dahdah be alone. His evidence, which I accept, was that the volume of business at the Haberfield shop required two staff members. Other evidence, specifically the documentary evidence of rostering, supports that statement in that it records that on weekdays the Haberfield shop did not operate as “a one man show” and that Mr Lindsay worked there with Mr Dahdah until 2012, being replaced at about the same time by Mr Kornel. By contrast, Mr Cropley’s evidence concerning Mr Dahdah’s duties was in important respects uncontradicted by Mr Dahdah. In particular, Mr Dahdah’s evidence was that, as well as being necessarily involved in selling and fitting roof racks and other accessories, he attended meetings, prepared the banking, supervised staff and used to report sales figures every evening.
Importantly, Mr Dahdah’s evidence that he worked alone at the Haberfield shop from 2007 until 2012 was contradicted by the rostering records to which reference has already been made and by the evidence of the other witnesses. Further, Mr Dahdah did not adequately explain why, if he worked alone in the shop from opening until closing, as well as on alternate Saturdays, he also undertook renovation of the shop which kept him at work until late in circumstances where, he said, he was not being paid overtime although he requested it.
Mr Dahdah’s evidence was also implausible in that he said that he had never been told that he had to report his hours to head office and yet he said that he complained that he was not being paid overtime and had asked on several occasions for such payment. It is not credible that someone seeking overtime payments would not have made it clear to the payroll officer what hours he or she had worked. Alternatively, it is unlikely that a person who did not think that hours needed to be reported would press a claim for overtime, for the simple reason that the overtime hours could not be substantiated. Mr Dahdah’s contention was that the management of Roof Rack City knew the hours he was working because they saw when he sent emails with the day’s results. I do not think it credible, if he had complained to management that he deserved overtime payments because of the hours he worked as revealed by when he sent his emails, that he would not have been told to report his hours formally to the payroll officer so that they could be properly recorded in the payroll system, assuming that he was entitled to overtime payments. The fact that Mr Dahdah did not report his alleged overtime hours indicates that he did not work them or, if he did, that he was not entitled to any payment in respect of them. Whatever the case, the failure to report his hours casts doubt on the credibility of Mr Dahdah’s claims.
On balance, where Mr Dahdah’s evidence differs from Mr Cropley’s, I prefer Mr Cropley’s.
In reaching that conclusion, I have not overlooked the internally contradictory evidence given by Mr Dixon or the terms of the contract offered to Mr Dahdah in December 2011, which expressed his employment to be pursuant to the Modern Retail Award. However, I have concluded that Mr Cropley’s account, given his familiarity with the arrangement with Mr Dahdah which predated Mr Dixon’s employment with Roof Rack City, was likely to be the more accurate version of events. Even so, Mr Dixon’s description of Mr Dahdah’s duties did reflect the managerial role which Mr Cropley had envisaged and described Mr Dahdah as fulfilling.
I have also had regard to the fact that Mr Dahdah and Mr Lindsay were paid at the same rate in 2007/2008 and 2008/2009, a fact which suggests that their duties were the same. Overall, however, the evidence satisfies me that they were not, including the evidence that from 2009/2010 Mr Dahdah’s pay rate was greater than Mr Lindsay’s. There may have been many reasons why Mr Dahdah’s pay did not increase immediately upon his appointment as store manager at Haberfield, but these were not explored in any depth at the hearing. I do not conclude that the fact that Mr Dahdah and Mr Lindsay were paid the same rate in 2007/2008 and 2008/2009, which was a rate greater than the rate provided for shop assistants by the Shop NAPSA, indicates that Mr Dahdah did not become manager of Roof Rack City’s Haberfield shop in mid-2007.
I conclude that although Mr Dahdah did sell and fit accessories, the performance of that work was part of a larger role which had greater responsibilities than those of a shop assistant, even a shop assistant with a duty of buying who supervised other shop assistants. Even if he did not have complete discretion in all matters, Mr Dahdah was responsible for Roof Rack City’s business in Haberfield. In those circumstances, I find that his role and thus his employment was not of a type which was governed by either of the awards.
I also note that Mr Dahdah never signed the contract offered to him by Mr Dixon and indeed his evidence was that he never accepted its terms. I consequently find that his employment continued on the basis initiated in 2007.
Pay slips
As noted earlier, Mr Dahdah had no standing under the WR Regulations to raise issues concerning his pay slips in the period prior to 1 July 2009 and he made no claim in respect of that period. In respect of the period governed by the FW Act, as I have found that he was not covered by the Modern Vehicle Retail Award, there was no need for his pay slips to refer to overtime. The only information which the pay slips should have contained but did not was his rate of pay. They were silent on that matter and so a contravention of s.536(2) of the FW Act has been made out in that respect.
Were there underpayments?
In the event that my conclusion concerning the status of Mr Dahdah’s employment is wrong, I will address the question of underpayments.
I find, given the variability of work demands on weekdays and the flexibility given to him, that Mr Dahdah was not required to and did not work more than thirty-eight hours a week on weekdays and thus that he would not have been entitled to overtime for work on those days. In relation to Saturdays, I conclude that he would have taken no less than thirty minutes for lunch and that he worked six overtime hours on Saturdays. Under the Shop NAPSA two of those overtime hours would have been paid at time and a half and four of those hours would have been paid at double time. Under the Modern Vehicle Retail Award, three hours would have been paid at time and a half and three hours would have been paid at double time.
Mr Dahdah also alleged that he worked much longer hours on occasions but did not identify with sufficient particularity what those hours were and I find that that allegation is not made out.
On the basis that every fortnight Mr Dahdah worked seventy-six ordinary hours and six Saturday overtime hours, even if his employment had been covered by the awards applicable to his industry, his remuneration exceeded his award entitlements. For instance, under the Shop NAPSA:
a)from the first full pay period commencing on or after 28 July 2007 Mr Dahdah was entitled to fortnightly ordinary time pay of $1,190.40 together with $172.26 overtime pay (being two hours at time and a half and four hours at double time), giving a fortnightly pay of $1,362.66 or an annual pay of $35,429.16;
b)from the first full pay period commencing on or after 28 July 2008 Mr Dahdah was entitled to fortnightly ordinary time pay of $1,238.00 together with $179.19 overtime pay (being two hours at time and a half and four hours at double time), giving a fortnightly pay of $1,417.19 or an annual pay of $36,846.94; and
c)from the first full pay period commencing on or after 6 August 2009 Mr Dahdah was entitled to fortnightly ordinary time pay of $1,272.60 together with $184.14 overtime pay (being two hours at time and a half and four hours at double time), giving a fortnightly pay of $1,456.74 or an annual pay of $37,875.24
Under the Modern Vehicle Retail Award:
a)from the first full pay period commencing on or after 1 July 2010 Mr Dahdah was entitled to ordinary time pay of $16.98 an hour, which amounted to a fortnightly ordinary time pay of $1,290.48, together with $178.29 of overtime pay (being three hours at time and a half and three hours at double time), giving a fortnightly total pay of $1,468.77 or an annual pay of $38,188.02;
b)from the first full pay period commencing on or after 1 July 2011 Mr Dahdah was entitled to ordinary time pay of $17.56 an hour, which amounted to a fortnightly ordinary time pay of $1,334.56, together with $184.38 of overtime pay (being three hours at time and a half and three hours at double time), giving a fortnightly total pay of $1,518.94 or an annual pay of $39,492.44; and
c)from the first full pay period commencing on or after 1 July 2012 Mr Dahdah was entitled to ordinary time pay of $18.07 an hour, which amounted to a fortnightly ordinary time pay of $1,373.32, together with $189.74 of overtime pay (being three hours at time and a half and three hours at double time), giving a fortnightly total pay of $1,563.06 or an annual pay of $40,639.56.
As noted earlier, copies of Mr Dahdah’s group certificates were annexed to Mr Dixon’s affidavit and disclosed that he received the following gross pay during the relevant period:
a)2007 – 2008: $46,669;
b)2008 – 2009: $46,835;
c)2009 – 2010: $51,700;
d)2010 – 2011: $56,301;
e)2011 – 2012: $58,923 (of which, according to Mr Dahdah’s pay slips, $3,733.55 was penalty rate payments, presumably for work on Sundays and $814.47 for work on public holidays); and
f)1 July 2012 – 10 January 2013: $51,235.
In relation to the latter figure, the breakdown of Mr Dahdah’s termination payment, a copy of which was annexed to Mr Dixon’s affidavit, indicated that accrued annual leave, annual leave loading and long service leave entitlements which were paid out on termination totalled $18.462.18 gross. Mr Dahdah’s pay slip for the fortnight ending 12 December 2012, a copy of which was annexed to his affidavit of 19 November 2013 disclosed that his gross earnings to that point were $27,825.89 of which $2,169.75 was penalty rate payments, again presumably for work on Sundays.
Although the wage calculations set out above do not all reflect the financial years of Mr Dahdah’s group certificates, they nevertheless cover sufficiently similar periods to indicate clearly that Mr Dahdah was paid more and generally considerably more than he would have been paid if he had been paid according to the awards, including payments for the overtime to which he claimed to be entitled.
It was never suggested that Roof Rack City said to Mr Dahdah that payments for what, in an award-based situation, would have been over-award payments for ordinary time work were to be applied to or were in satisfaction of overtime entitlements and in this connection Mr Dahdah referred in his submissions to what was said in Givoni. As the case will be decided on a different issue it is not necessary to take this issue any further. However, I will observe that, had it been necessary to consider this aspect of the matter in the context of Givoni, I would not have exercised my discretion to order compensation in respect of Mr Dahdah’s overtime claims: Givoni at 268 [69].
Conclusion
The matter will be listed for directions on 15 May 2015 in connection with the finding that Roof Rack City contravened s.536(2) of the FW Act.
In all other respects the application will be dismissed.
I certify that the preceding one-hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 4 May 2015
Key Legal Topics
Areas of Law
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Employment Law
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Statutory Interpretation
Legal Concepts
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Statutory Construction
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Jurisdiction
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