Glynn v Napoleon Hair and Beauty Pty Ltd
[2011] FMCA 1050
•11 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GLYNN v NAPOLEON HAIR & BEAUTY PTY LTD | [2011] FMCA 1050 |
| INDUSTRIAL LAW – Small claims jurisdiction – claim for underpayment – failure by respondent to appear – no valid application or reason for adjournment – application to proceed in the respondent’s absence. |
| Fair Work Act (Cth), ss.548, 548(3) Federal Magistrates Act 1999 (Cth), ss.3, 42 Federal Magistrates Court Rules (Cth), rr.1.03, 45.11(2) |
| McShane v Image Ballards Pty Ltd [2011] FMCA 215 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 |
| Applicant: | BELINDA GLYNN |
| Respondent: | NAPOLEON HAIR & BEAUTY PTY LIMITED |
| File Number: | MLG 750 of 2011 |
| Judgment of: | O’Sullivan FM |
| Hearing date: | 11 November 2011 |
| Date of Last Submission: | 11 November 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 11 November 2011 |
REPRESENTATION
| The Applicant: | Appeared in person |
| The Respondent: | No appearance |
ORDERS
The Applicant have leave to proceed undefended.
THE COURT DECLARES THAT:
The Respondent contravened the Fair Work Act 2009 (Cth) (“the FW Act”) and the FW Act instrument in the terms of the Hair and Beauty Industry Award 2010.
THE COURT ORDERS THAT:
Pursuant to s.545(2)(b) of the FW Act the Respondent pay the Applicant the sum of $866.60 less tax within 30 days of the date of this Order.
The Applicant shall serve the Respondent with a copy of these orders within 14 days.
AND THE COURT NOTES:
(A)The provisions of Rule 16.05 of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 750 of 2011
| BELINDA GLYNN |
Applicant
And
| NAPOLEON HAIR & BEAUTY PTY LIMITED |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In the matter of Belinda Glynn v Napoleon Hair & Beauty this is an application which was filed on 30 May 2011. It was accompanied by a form 5. The applicant, Belinda Jane Glynn is around 29 years of age. The material in the form 5 indicates that she worked at the respondent’s, (i.e. Napoleon Hair & Beauty Pty Ltd) premises at shop 20, 400 McDonalds Road, Mill Park as a hairdresser. The relevant industrial instrument that regulated her employment (and that employment was, according to the form 5, from 16 November 2010 to 31 December 2010) was the Hair & Beauty Industry Award 2010 (“the Award”).
In the form 5, Ms Glynn set out the hours that she worked on a full time basis and particularised at Part G of her application, the contraventions of the Award I’ve already referred to and in particular clauses 14, clause 35 and the clause dealing with tool allowance.
At Part H, Ms Glynn set out the remedies sought by way of recovery of monies due monies for public holidays and payment in lieu of notice, bringing the matter to a total of $918.44.
On 22 June 2011, there was filed an affidavit on behalf of Ms Glynn saying that she served a true copy of the small claim and Form 5 on Valentina Sirijovski at Napoleon Hair & Beauty in Mill Park on 6 June 2011.
The application was given a first Court date of today, 11 November 2011. Some 5 months after the application according to Ms Glynn was served on 10 November 2011 there was received by the Registry of the Court a one page facsimile that appears to have been sent from CBA Plenty Valley. It appears to be a copy of a medical certificate from a Dr Raad Hammod. It appears to be completed on 9 November 2011 and it certifies as follows:
“Ms Valentina Sirijovski is receiving medical treatment and for the period Wednesday 9 November 2011 to Friday 11 November 2011 inclusive she will be unfit to continue her usual occupation.”
I pause and note that there is no medical evidence to say that Ms Sirijovski who, according to the Ms Glynn’s material, is for all intents and purposes the responsible officer for the respondent is unable to attend Court. However, I will for present purposes treat the facsimile as an application for an adjournment. This matter is being dealt with in the small claims list of the Court. The applications made in that list make clear that they can be dealt with on the first Court date. In this case Ms Glynn has served the application over five months ago on the respondent. I am satisfied it has come to the attention of those responsible for the respondent.
Adjournments are not readily granted in this Court. However if an adjournment application is made then the Court will hear and determine it. The question of adjournment requires the Court to balance issues such as case management and prejudice.
It has been made clear courts are entitled to manage their procedures so that the interests of justice can be served by the speedy resolution of cases at the minimum expense (see Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (Aon)).
In Aon their Honours made a number of points, which included that:
a)
the conduct of litigation is not merely a matter for the parties.
The need to avoid disruptions in the court’s lists, with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard, is a relevant matter (at [93]);
b)when considering an application such as this the court should take account of other litigants, not just the parties to the litigation in question (at [94]-[95]);
c)costs are not always a sufficient compensation for the vacation of a hearing date (at [99]-[100]);
d)there may be cases where it may properly be concluded that a party has had sufficient opportunity to make their case and that it is too late for an adjournment application, having regard to the other party and the other litigants awaiting trial dates (at [102]);
e)the fact that an explanation has been offered for the delay in raising the issue is relevant, together with whatever explanation may be given (at [103]); and
f)whilst all matters relevant to the exercise of the power should be considered substantial delay, wasted costs and the concerns of case management are important (at [111]).
In the context of the statements in Aon, the role and mode of operation of this Court are also relevant. They are as set out in the Federal Magistrates Act 1999 (Cth)[1] and the Federal Magistrates Court Rules 2001 (Cth),[2] as prescribed by the objects of the FM Act[3] and the objects of the FMC Rules,[4] provide for the Court to operate in a manner:
a)as informal as possible in the exercise of judicial power;
b)which is not protracted in its proceedings;
c)which resolves proceedings justly, efficiently and economically;
d)which uses streamlined procedures; and
e)that avoids undue delay, expense and technicality.
[1] “FM Act”.
[2] “FMC Rules”.
[3] FM Act, ss.3 and 42.
[4] FMC Rules, r.1.03.
I am not satisfied there is a valid explanation for the adjournment. The material before the Court makes clear that there is some evidence that Ms Sirijovski attended upon a doctor, but the doctor certainly does not certify that she is unable to attend Court.
In those circumstances, to the extent that Ms Sirijovski was trying to make an application for an adjournment, having regard to the length of time that I’m satisfied she has been aware of the proceedings, balancing the prejudice to Ms Sirijovski against the prejudice to the applicant if the matter was adjourned, to the extent that there is an application for an adjournment and there is no formal application, but to the extent that there is, for those reasons it is refused.
This is an application made in the Court’s small claims jurisdiction. Section 548 of the Fair Work Act sets out:
“(1)Proceedings are to be dealt with as small claims proceedings under this section if:
(a)a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Magistrates Court; and
(b)the order relates to an amount referred to in subsection (1A); and
(c)the person indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.
(1A)The amounts are as follows:
(a)an amount that an employer was required to pay to, or on behalf of, an employee:
(i) under this Act or a fair work instrument; or
(ii) because of a safety net contractual entitlement; or
(iii) because of an entitlement of the employee arising under subsection 542(1);
(b)an amount that an outworker entity was required to pay to, or on behalf of, an outworker under a modern award.
Limits on award
(2)In small claims proceedings, the court may not award more than:
(a)$20,000; or
(b)if a higher amount is prescribed by the regulations--that higher amount.”
In McShane v Image Bollards Pty Ltd[5], Lucev FM states:
[5] as Trustee for the Scott Family Trust trading as Image Collards [2011] FMCA 215
“Section 548(3) of the FW Act provides as follows:
5.Procedure
(3)In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:
(a) in an informal manner; and
(b) without regard to legal forms and technicalities.
6.Rule 45.11(2) of the FMC Rules provides as follows:
(2)The Court is not bound by the rules of evidence when dealing with a small claim application, but may inform itself of any matter in any manner as it thinks fit.
7.Although the Court is not bound by the rules of evidence, and may act informally, and without regard to legal forms and technicalities in small claims proceedings in the Fair Work Division, this does not relieve an applicant from the necessity to prove their claim. The Court can only act on evidence having a rational probative force.[9] The necessity to prove the claim was pointed out with particularity to the parties at the directions hearing on 18 March 2011. That particularity was necessary because Mr McShane had described the hearing, which the Court had just ordered be listed for 31 March 2011, as the “next get-together” (or words to that effect). The Court was at pains to point out that it was in fact a hearing at which the claim would need to be proved. Thus, Mr McShane was on notice that he would need to attend the hearing and prove his claim.”
That decision discusses the procedure that the Court should adopt in these sorts of matters and in particular the need for the Court whilst acting without regard to legal forms and technicalities, it is still necessary for the applicant to prove their claim as the Court can only act on evidence having a rational probative force.
I have already this morning given Ms Glynn, the applicant liberty to proceed with her application in the absence of the respondent as I was satisfied it had come to the attention of the person responsible for Napoleon Hair & Beauty and that there was not a valid reason for their failure to attend and there was no proper application for an adjournment or proper reason for any adjournment.
I have had the benefit of evidence this morning from Ms Glynn who has adopted as true and correct in every particular the details of both her employment and the breaches of the Award referred to in the Form 5 accompanying her application save that she only sought $866.60 as she only sought pay for public holidays and payment in lieu of notice. She was employed as a hairdresser by the respondent for only a short period in late 2010. The Award governing her employment was the Hair and Beauty Industry Award 2010. Ms Glynn’s Form 5 particularised the contraventions as well as the amounts owing.
I have marked as exhibit A1 a letter dated 23 May 2011 from the Fair Work Ombudsman which sets out the results of its investigation into a complaint made by Ms Glynn in relation to her employment with the respondent which is entirely consistent with the claims made by Ms Glynn in her evidence before the Court today. Exhibit A1 provided:
“Dear Ms Glynn,
I refer to your complaint concerning your employment with your former employer Napoleon Hair and Beauty Pty Ltd (the company), lodged on 17 January 2011 with the Fair Work Ombudsman concerning non-payment of wages in lieu of notice, non-provision of meal breaks, non-payment of tool allowance and non-payment of wages for two public holidays.
I am writing to notify you of the outcome of my investigation in relation to your complaint.
Matters determined by Fair Work Inspector:
The company is an employer within the jurisdiction of the Fair Work Ombudsman.
You were employed at the company between 16 November 2010 and 31 December 2010 as a full-time Hairdresser.
Your terms and conditions of employment were contained in the Hair and Beauty Industry Award 2010 (modern award) and the NES in the Fair Work Act 2009. Your minimum hourly rate of pay continued to be contained in the pay scale from the AP806816CRV – Hairdressing and Beauty Services – Victoria – Award 2001 (the Pre-modern Award).
The company’s obligations in relation to record keeping and pay slips are contained in the Fair Work Act 2009 (the Act).
Your minimum base rate of pay was $16.78 per hour, as provided in the 2008 pay scale.
The reasons for this determination are based upon the duties performed by you and the date of the company’s incorporation.
In determining whether there has been a contravention of Commonwealth workplace laws I have relied upon:
1.Information provided by you;
2.Copies of email correspondence, provided by you;
3.Copies of pay slips provided by the company;
4.Information provided by the company;
5.Time and wage records provided by the company; and
6.Information provided by Ms Sirijovski during a record of interview conducted on 1 February 2011.
Outcome of investigation:
I have determined the following contraventions of the Modern Award have occurred:
1.Clause 32 of the Modern Award provides all full-time employees must be granted two rest periods of 10 minutes per day, one on either said of the meal break. Rest periods are counted as time worked. Further, employees must be allowed a meal break of 45 minutes to 60 minutes after five hours work. By mutual agreement the meal break can be shortened to 30 minutes. Meal breaks do not count as time worked.
The company has provided time records which show meal breaks taken of duration from 30 minutes to 60 minutes, and that a break was recorded against each shift worked by you. Based on information received, no mutual agreement was made between the company and you to shorten breaks to 30 minutes. I have determined the company has contravened clause 32 of the Modern Award.
2.Clause 35 of the Modern Award provides public holidays are provided in the National employment Standards contained in the Act. Division 10 of the Act provides if an employee is absent from their employment on a day that is a public holiday the employer must pay the employee at the vase rate for the employee’s ordinary hours of work on the day. Further it provides if under a law of a State of Territory a say is substituted for a day that would otherwise be a public holiday then the substituted day is the public holiday.
Section 6 of the Public Holidays Act 1993 provides Tuesday shall be a public holiday when Boxing Day is a Sunday, and Monday shall be a public holiday when Christmas Day is a Saturday.
Based on records of time worked provided by the company, I have determined the company failed to pay you 7.5 hours pay for Tuesday 28 December 2010 and has contravened clause 35 of the Modern Award.
3.Clause 33 of the Modern Award provides annual leave is provided for in the National employment Standards (the NES) contained in the Act. Section 90 of the Act provides if an employee has a period of unpaid annual leave upon termination, the employer must pay the employee at the employee’s base rate of pay amount that would have been payable had the employee taken that period of leave. Clause 33 provides payment of annual leave loading of 17.5% upon annual leave accrued paid at the wages proscribed in the Modern Award.
Based on records provided by the company and information from you, the company has contravened clause 33 of the modern award, as you did not receive payment of annual leave loading upon termination.
In relation to your complaint that you were entitled o notice upon termination:
· Clause 14 of the Modern award provides notice of termination by employer is contained in the National employment Standards (the NES) contained in the Act. Section 117 of the Act provides the employer must not terminate an employee whose period of continuous service with the employer is not more than one year without entitlement to 1 week notice or payment in lieu upon termination.
· Section 123 of the Act specifies that notice of termination does not apply to employees who are employed for a specific period of time, who are terminated due to misconduct, a casual employee or an employee in a training arrangement whose employment is for a specified period of time.
· Due to insufficient evidence of the circumstances surrounding the termination of employment, I am unable to sustain your complaint for payment in lieu of notice of termination as provided by clause 14 of the Modern Award.
In relation to your complaint for payment of tool allowance:
· Clause 21.10 of the Modern award provides the employer must reimburse the employment for the cost of all electrical equipment necessary for carrying out their work. This provision does not apply where electrical equipment is provided at the employer’s expense. Further, where an employee is required to se their own tools the employment must pay to the employee a tool allowance of $8.05 per week, increasing to $8.64 per week from pay period commencing on or after 1 July 2010. This clause has application from 1 January 2010 to 31 December 2010.
· You advised you were required to provide your own tools. The company has advised that employees chose to bring in their own tools as they preferred to use them.
· Due to insufficient evidence of surrounding the requirement by the company for you to provide your own tools, I am unable to determine an entitlement to receive tool allowance as per clause 21.10 of the Modern Award.
The underpayment arising from these contraventions was calculated to be:
Annual leave loading (17.5% of 14.6 hours *$19)
2.555
hours of annual leave loading payable
$48.55
gross payable to rectify annual leave entitlement
Public Holiday payment (7.6 hours *$19)
$144.40
gross payable to rectify public holiday payment
$192.95
Gross payable to resolve contraventions
I am pleased to advise that the company has agreed to repay the amount assessed to rectify the contravention of annual leave loading. Please find attached a cheque from the company for $48.55 gross.
Please confirm that the cheque has been cleared. Once confirmation is received from you the Fair Work Ombudsman will consider the contravention to be rectified.
Please be advised that the Fair Work Ombudsman will be taking no further action in relation to this matter.
The Fair Work Ombudsman has advised the company of its obligations in relation to public holidays and has sought voluntary rectification of the contravention. The company has advised that they wish to contest the matter.
Please be advised that the Fair Work Ombudsman will not be instituting further enforcement action against the company at this time as it is not in the public interest to pursue this matter in court.
…”
Based on the evidence before me it is for these reasons that I make the following orders:
“1. The Applicant have leave to proceed undefended.
THE COURT DECLARES THAT:
2.The Respondent contravened the Fair Work Act 2009 (Cth) (“the FW Act”) and the FW Act instrument in the terms of the Hair and Beauty Industry Award 2010.
THE COURT ORDERS THAT:
3.Pursuant to s.545(2)(b) of the FW Act the Respondent pay the Applicant the sum of $866.60 less tax within 30 days of the date of this Order.
4.The Applicant shall serve the Respondent with a copy of these orders within 14 days.
AND THE COURT NOTES:
(A)The provisions of Rule 16.05 of the Federal Magistrates Court Rules 2001.”
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of O’Sullivan FM
Date: 11 November 2011
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