Foote v Smith and Maloney Green Grocers

[2015] FCCA 3421

FEDERAL CIRCUIT COURT OF AUSTRALIA

FOOTE v SMITH & MALONEY GREEN GROCERS [2015] FCCA 3421

Catchwords:
INDUSTRIAL LAW – Ex tempore judgment.

Legislation:

Fair Work Act 2009, s.548

Applicant: TOM FOOTE (GOLIATH)

Respondent: MIN INTERNATIONAL PTY LTD TRADING AS SMITH & MALONEY GREEN GROCERS

File Number: MLG 766 of 2014

Judgment of: Judge Burchardt

Hearing date: 27 November 2015

Date of Last Submission: 27 November 2015

Delivered at: Melbourne

Delivered on: 27 November 2015

REPRESENTATION

The Applicant: In person (assisted by Mr Corboy
as McKenzie friend)

The Respondent: Ms Min

ORDERS

1. The Respondent is to pay the Applicant the sum of $8,121.29 less any applicable tax. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 766 of 2014

TOM FOOTE (GOLIATH)

Applicant

And

MIN INTERNATIONAL PTY LTD TRADING AS SMITH & MALONEY GREEN GROCERS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. Section 548 of the Fair Work Act 2009 (“the FW Act”) requires the Court to deal with Small Claims such as this one without undue technicality. The parties have raised a number of matters, in their very extensive materials and in their oral evidence and the questions they have put, that are not, perhaps, directly relevant to the issues the Court has to determine. The reasons for judgment deal with the matter as best I can, given the difficulties arising from the parties’ self-representation, in the terms under which they gain or do not gain traction under the Act and the appropriate award.

2. It seems clear that the applicant, for these purposes, was relevantly employed from 8 January 2013 until 30 December 2013.  There is a dispute as to whether the applicant was dismissed or gave notice, but on either version of the events, there is plainly no claim for a payment in lieu of notice.

3. It is agreed that the applicant was paid a flat amount of $15 per hour.  There is an argument as to whether this was taxed or not.  It seems to me it was not.  On any view, the payslips put into evidence do not reflect what occurred.  This is immediately apparent, if nowhere else, from the fact that the same amount was always taken out for tax, even though the amount earned varied from week to week.

4. It is, however, also agreed that the applicant was paid, additionally to his $15 an hour, the sum of $87.50 for market.  The applicant was also given $20 per week by the respondent to cover his petrol and costs associated with going to the market.  The applicant had private use of the company vehicle, and although I accept the applicant’s evidence that this was available for anyone, I find that he had the main use of it out of hours.

5. The hours of work asserted by the applicant I will come to in a moment, but I note that the respondent herself conceded that she was not there enough to directly contradict what he says.  Although his hours of work clearly varied from time to time, a fair average, as I find, would be the following:  on Mondays, from 3.30 am until 1.00 pm, a total of nine and a half hours;  on Wednesdays, from 8.30 until 1.00 pm, a total of four and a half hours;  on Thursdays from 3.30 am until 1.00pm, nine and a half hours;  Friday, 8.30 am until 1.00 pm, four and a half hours; Saturday, 8.30 am until 6.30 pm, 10 hours;  and Sunday, 8.30 am until 1.00 pm, four and a half hours.

6. It was also asserted that, on the two market days, the applicant returned to work later in the afternoon to help shut the shop, for a total which was put as an hour but strikes me as being probably a bit less than that. 

7. There is an issue between the parties as to the level of work the applicant performed.  The respondent says it was at level 1 under the award, a copy of which is included in the applicant’s materials as filed.

8. The General Retail Industry Award, which I am satisfied would be the applicable award, details the various classifications.  Level 1 is basic service.  Level 4 includes some purchasing functions that the applicant would have fulfilled when he went to the market.  In the short time available, I have not been able to find a mixed functions clause, but it seems to me, taking the evidence as a whole, a fair analysis would be that the applicant was a level 3.

9. That is because, even though the respondent puts the matter in issue to an extent, it seems clear that, on occasions at least, the applicant opened and closed the shop and would have been responsible for the till and the like.

10. The wage under the award, on the materials filed, at level 3 – and the relevant period was from January to July 2013 – $18.23 and, thereafter, until the end of the year, $18.58.  I have rounded this out as a single figure of $18.40, which is almost the medium of the two.

11. Of course, the applicant was actually paid $87.50 on two occasions per week and $15 an hour for the time that he worked.  Because he was paid the $87.50 additionally to the $15 per hour, there was clearly no underpayment on those days, and in my view, that extra amount would also take care of the extra hour or so, if it was an hour, on Mondays and Thursdays.

12. So from Monday to Friday, there was 18 hours underpaid at a total amount of $3.40, namely, the difference between the $15 paid and the $18.40 that should have been paid, which meant that each week, from Monday until Friday, there was an underpayment of $62.56.

13. On Saturdays, the award prescribes, pursuant to clause 29.4, a 25 per cent loading.  Applying that figure to the $3.40 would produce an underpayment per hour of $3.87.  For the first eight hours of work, that produces a daily underpayment of $30.96.  The final two hours should have been paid at time and a half, and the total underpayment for those two hours is $11.61.  That is an underpayment each Saturday of $42.57 cents.

14. On Sundays, the award, pursuant to clause 29.4, prescribes a 100 per cent loading.  Applying that figure to the base figure of underpayment of $3.40 for eight hours produces an underpayment of $30.60 cents per day.

15. Adding the three figures of the Monday to Friday, Saturday and Sunday together, there is an underpayment of $135.73 cents per week. 

16. There are a large number of additional claims in the claim as put.  For example, said to arise from not enough time off between shifts and the like.

17. In my view, these are not made out on the evidence.  It should be recalled that applicant’s hours of work varied from time to time, and I have only adopted the pattern in which I have applied the above methodology I have set out as a fair average.  In those circumstances, I cannot be satisfied that any particular further alleged infraction took place.

18. The period from 8 January 2013 to 30 December 2013 is 51 weeks, near as makes no difference, and applying the overall underpayment of $135.73 per week produces a rounded-out total of underpayments of $6922.  That is the sum that I find was underpaid in relation to wages.

19. There is also a claim for annual leave.  Clause 32 of the award takes us to the National Employment Standard, pursuant to which, given this amount of time, the applicant would be entitled to three weeks of pay.  The award would additionally entitle him to a loading of 17.5 per cent on that pay.

20. 40.5 hours at $15 per hour is $607.50 – that is the sum actually paid – plus $135.70, which is the underpayment, would produce a weekly wage of $743.20.  Three weeks at that rate produces a total of $2,229.60.  17.5 per cent loading would produce a further $390.18, producing a total, prima facie, of annual leave of $2,619.78.

21. The employer, whose arguments I have not thus far dealt with, says that there was an agreement to pay $15 flat rate and provide the private use of the car.  I strongly suspect that that may be so.  However, on any view, it was not recorded in writing.  The award exemption for agreements, which might otherwise have been available as a defence, is therefore not possible.

22. The employer says, however, that once these proceedings started, she forwarded $400 to the applicant in respect of leave, and I accept that that was so.  The employer also says she seeks a cross-claim, in effect, in respect of the private use of the car.

23. I accept the applicant had this for his benefit.  These are not areas, in any way, of precision, bearing in mind that he paid for the petrol when he had the car in his possession.

24. In the circumstances, I propose to allot a figure of $20 per week for this.  It was the figure paid by the employer for expenses relating to going to the market.  In my view, the applicant got at least that much benefit out of the use of the car himself.  Indeed, my knowledge of employment law cases, in which use of cars is frequently raised, would suggest that the benefit would be, in fact, far greater than that.

25. 51 weeks at $20 is $1,020.  Accordingly, I add the $6,922 underpayment of wages to the annual leave of $2,619.78, which produces a total of $9,571.78.  From that, I subtract the $400 already paid for annual leave and the private use of the car, which come in total to $1,420, producing a total of $8,121.79.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  18 December 2015