Gorval v Employsure Pty Ltd and; Lynch v Employsure Pty Ltd and; Mahoney v Employsure Pty Ltd
[2016] FCCA 231
•18 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GORVAL v EMPLOYSURE PTY LTD and LYNCH v EMPLOYSURE PTY LTD and MAHONEY v EMPLOYSURE PTY LTD | [2016] FCCA 231 |
| Catchwords: INDUSTRIAL LAW – Small claims – whether overtime payable – whether a one-hour lunch break was paid or unpaid – whether additional hours are reasonable – whether an incentive bonus is payable – whether reimbursement for travel expenses payable. |
| Legislation: Fair Work Act 2009, ss.20, 62, 323 National Employment Standards |
| Automatic Fire Sprinklers Pty Limited v Watson (1946) 72 CLR 435 Commonwealth v Oliver [1962] HCA 38 Duncans Holdings Limited v Cross (1997) 76 IR 261 Linfox Australia Pty Limited v Transport Workers’ Union of Australia [2013] FCA 659 Pavey & Matthews Pty Limited v Paul (1987) 162 CLR 221 Pearson v Fremantle Harbour Trust [1929] HCA 19 Whittingham v Commissioner of Railways (WA) [1931] HCA 49 |
| Applicant: | SERGEY GORVAL |
| Respondent: | EMPLOYSURE PTY LTD |
| File Number: | SYG 2524 of 2015 |
| Applicant: | MATTHEW JAMES LYNCH |
| Respondent: | EMPLOYSURE PTY LTD |
| File Number: | SYG 2542 of 2015 |
| Applicant: | CHRISTOPHER JAMES MAHONEY |
| Respondent: | EMPLOYSURE PTY LTD |
| File Number: | SYG 2916 of 2015 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 25 November 2015 |
| Date of Last Submission: | 22 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 18 March 2016 |
REPRESENTATION
SYG 2524 of 2015
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr Mahendra |
| Solicitors for the Respondent: | Wotton & Kearney Insurance Lawyers |
SYG 2542 of 2015
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr Mahendra |
| Solicitors for the Respondent: | Wotton & Kearney Insurance Lawyers |
SYG 2916 of 2015
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr Mahendra |
| Solicitors for the Respondent: | Wotton & Kearney Insurance Lawyers |
ORDERS
Within 28 days, the Respondent pay to Sergey Gorval the sum of $2,700.00.
Within 28 days, the Respondent pay to Sergey Gorval an amount calculated as follows:
5000
365 x ‘y’ less relevant PAYG deduction
Where ‘y’ = the number of days between 9 March 2015 and the date on which Sergey Gorval’s annual salary was increased to $70,000.00
All other claims before the Court in the present proceedings are dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2524 of 2015
| SERGEY GORVAL |
Applicant
And
| EMPLOYSURE PTY LTD |
Respondent
SYG 2542 of 2015
| MATTHEW JAMES LYNCH |
Applicant
And
| EMPLOYSURE PTY LTD |
Respondent
SYG 2916 of 2015
| CHRISTOPHER JAMES MAHONEY |
Applicant
And
| EMPLOYSURE PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain the Orders that have been made in three separate claims that were commenced by Messrs Gorval, Lynch and Mahoney against their former employer, Employsure Pty Limited.
Each of the Applicants are lawyers formerly employed by the Respondent pursuant to contracts of employment that contained identical clauses. The Respondent is a large employment relations agency.
Each of the Applicants brings the present claim pursuant to this Court’s small claims jurisdiction.
Each of the Applicants seek payment for alleged overtime based on working seven additional hours each week on the basis that they worked 45 hours each week, which included a one-hour lunch break each day.
In addition to this, the Applicant Gorval seeks payment for an incentive bonus, as well as back payment of wages.
During the course of the hearing, the claim that the Applicant Mahoney had made for reimbursement of travel expenses was accepted in good faith by the Respondent, who indicated to the Court that the reimbursement would be paid.
It is common ground that the Applicants were award/agreement free employees for the purposes of the Fair Work Act 2009 (hereafter referred to as ‘the Act’).
It is further common ground that the Applicants were directed to attend the Respondent’s premises Monday to Friday between 8:30 am and 5:30 pm to provide service to the Respondent.
The Applicants allege that they each worked 45 hours per week which, they assert, is in contravention of the maximum hours prescribed by the National Employment Standards (hereafter referred to as ‘NES’) set out in the Act. However, the Respondent contends that as each of the Applicants took a one hour lunch breach each day, they in fact worked 40 hours each week, and thus only two hours above the NES maximum hours. The Respondent nonetheless contends that the application of the Act does not require it to pay two hours each week as overtime, or indeed any overtime at all.
Background
There are separate general protection proceedings under the Act pending as between each of the Applicants and the Respondent. The Court was of the view that the present claim was separate and distinct from the general protections claim and that it was in the interests of justice to deal with the present small claims as expeditiously as possible.
A common theme of the evidence is that each of the Applicants is a lawyer by occupation, was quite familiar with employment law and the application of the Act, had studied either contract law, and/or employment law at university, and accepted that their employment was governed by the terms of their contract, as well as any applicable provisions of the Act.
A further common theme in the evidence is that they each understood that the core business hours of the employer was 8:30am to 5:30pm, and that the contract contained the following relevant provisions:
Hours of Work
Your hours of work are those that are reasonably necessary to fulfil the requirements of your role, or such hours as are required by the company.
Core business hours are 8.30 am to 5.30 pm Monday to Friday.
In addition, you may be requested to work rostered overtime or on-call periods from time-to-time by the company.
Rate of Pay
Your salary will be [ x ] dollars per annum, inclusive of superannuation. Your salary includes compensation for all hours that you are required to work.
It was also a common theme in the evidence that each Applicant was authorised to take a meal break up to and including one hour during each business day. Each Applicant was engaged as a full time employment relations claims adviser. The roster, which was in evidence, demonstrated that the Applicants’ hours of work amounted to 45 hours per week, which included a one-hour lunch break each day.
The evidence of the representative of the Respondent, Mr Morris, elicited by the Applicants in cross-examination, establishes the following:
·The Applicants were only able to negotiate their ordinary hours of work at the time of signing their employment contracts, but not after.
·There were no special needs of the Respondent that necessitated the additional overtime hours worked.
·That any overtime paid could only be paid after agreement with the manager.
·That the Applicants could not leave work without management approval before 5:30pm, or arrive after 8:30am.
·There was no particular nature of the employee’s role or level of responsibility that required the additional hours to be worked.
·Neither the Applicants, nor the Respondents, were aware of any industry standard or market rates of pay attributable to the Applicants and it is common ground that they were paid well in excess of the basic of legal requirement.
The evidence
Each of the Applicants relied on the assertions of fact contained in their Form 5 - Application for a small claim under the Fair Work Act of 2009. This was confirmed in their evidence-in-chief.
The other documents in evidence relied on by the Applicants consisted of a large quantity of documents produced by the Respondent pursuant to a Notice to Produce. This bundle consisted primarily of timesheets, correspondence, and a spreadsheet, all of which were business records prepared by, and produced by the Respondent.
The evidence in the Respondent’s case was presented by Michael Francis Morris in his Affidavit affirmed 19 November 2015. In his Affidavit, he described himself as the Talent Manager of the Respondent. He explains that he is, in effect, responsible for the human resources department of the Respondent. Annexed to his Affidavit were a substantial number of documents relevant to the case, including the employment contracts.
The claim for overtime
In substance, the Applicants claimed that they were engaged under a contract on a full time basis that did not expressly specify their hours of engagement. They contend that the salary they were paid only compensated them for 38 hours work each week, and they were not otherwise compensated on any ascertainable basis for hours in excess of 38. The Applicants contend that in a case where their contract is uncertain about hours of work, the Act should apply such that the ordinary hours of work for a full time employee are deemed to be 38 hours per week, and that any additional hours beyond 38 hours can only be justified and reasonable where those additional hours are ascertainable, are paid, and the payment of those additional hours is specified. The Applicants contend that the objective of the Respondent in employing the Applicants is to provide a total amount of annual pay that is fixed, regardless of the hours work, and that this undermines the objective of the Act and the NES.
The Applicants thus contend that the contractual provision extracted above, headed ‘Hours of Work’, is a term of the contract that is unclear as to the ordinary hours they are required to work, and does not provide a mechanism for determining remuneration for additional hours. They contend, for example, that the Respondent could have required them to work 90 hours, notwithstanding the express stipulation about core business hours. Whilst the contract seems to contemplate working overtime, the Applicants contend that the contract does not define when overtime applies, or how remuneration for that time is calculated.
The Applicants contend that the contractual stipulation that their salary includes compensation for all hours that they are required to work cannot be reconciled with the earlier provisions in the contract that both refer to core business hours and to overtime.
The applicants rely on s.62 of the Act, which states:
62 Maximum weekly hours
Maximum weekly hours of work
(1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full-time employee—38 hours; or
(b) for an employee who is not a full-time employee—the lesser of:
(i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.
Employee may refuse to work unreasonable additional hours
(2) The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.
Determining whether additional hours are reasonable
(3) In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:
(a) any risk to employee health and safety from working the additional hours;
(b) the employee’s personal circumstances, including family responsibilities;
(c) the needs of the workplace or enterprise in which the employee is employed;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(e) any notice given by the employer of any request or requirement to work the additional hours;
(f) any notice given by the employee of his or her intention to refuse to work the additional hours;
(g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;
(h) the nature of the employee’s role, and the employee’s level of responsibility;
(i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
(j) any other relevant matter.
Authorised leave or absence treated as hours worked
(4) For the purposes of subsection (1), the hours an employee works in a week are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are authorised:
(a) by the employee’s employer; or
(b) by or under a term or condition of the employee’s employment; or
(c) by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law.
The Applicants further rely on s.20 of the Act, which states:
20 Meaning of ordinary hours of work for award/agreement free
employees
Agreed ordinary hours of work
(1) The ordinary hours of work of an award/agreement free employee are the hours agreed by the employee and his or her national system employer as the employee’s ordinary hours of work.
If there is no agreement
(2) If there is no agreement about ordinary hours of work for an award/agreement free employee, the ordinary hours of work of the employee in a week are:
(a) for a full time employee—38 hours; or
(b) for an employee who is not a full-time employee—the lesser of:
(i) 38 hours; and
(ii) the employee’s usual weekly hours of work.
If the agreed hours are less than usual weekly hours
(3) If, for an award/agreement free employee who is not a full-time employee, there is an agreement under subsection (1) between the employee and his or her national system employer, but the agreed ordinary hours of work are less than the employee’s usual weekly hours of work, the ordinary hours of work of the employee in a week are the lesser of:
(a) 38 hours; and
(b) the employee’s usual weekly hours of work.
Regulations may prescribe usual weekly hours
(4) For an award/agreement free employee who is not a full-time employee and who does not have usual weekly hours of work, the regulations may prescribe, or provide for the determination of, hours that are taken to be the employee’s usual weekly hours of work for the purposes of subsections (2) and (3).
The Respondents oppose the Applicants’ claim for overtime. The Respondent contends that the Applicants were employed, and in fact worked, between 8:30am and 5:30pm on Monday to Friday, with a one hour lunchbreak each day, of which the lunch break was unpaid.
Central to the Applicants’ contention, however, was the argument that the lunch break was in fact paid. Thus, the Applicants were required to serve the Respondent for 45 hours each week. They relied on the High Court’s decision in Automatic Fire Sprinklers Pty Limited v Watson (1946) 72 CLR 435 at 465, where the Court stated:
The wages are incident to the subsisting relationship of master and servant. A master who sends his servant upon a holiday upon full pay can be sued for wages under the contract, although not on a common count for work and labour done. They also serve who only stand and wait.
Thus, the Applicants contend that they were serving the Respondent for 45 hours each week, though not in the sense of performing work, but performing the obligations imposed by the terms of the contract, which included, for example, taking an authorised meal break or being absent from work due to illness. In short, the Applicants submit that they were directed to fulfil their obligations under the contract from 8:30am until 5:30pm, and all hours during that period were hours of service.
The High Court’s decision in Automatic Fire Sprinklers does not assist the Applicants in the present context. It would be an unacceptable extrapolation of what Dixon J said in the passage referred to, to conclude that a contract of employment that is silent about whether a lunch break is paid or unpaid should be read as obliging the employer to pay an employee who is not working on their lunch break. When Dixon J made the statement, “They only serve who stand and wait”, he was repeating what he had said in two earlier cases (Pearson v Fremantle Harbour Trust [1929] HCA 19 and Whittingham v Commissioner of Railways (WA) [1931] HCA 49) and then in a later case (Commonwealth v Oliver [1962] HCA 38). These cases provide context for the statement, and that is that a worker is still deemed to be at work during his or her lunch break for the purposes of injury compensation. The present context is completely different.
The Respondent contends, however, that case law establishes that employees are not entitled to payment for lunchbreak, referring to the decision of Rares J in Linfox Australia Pty Limited v Transport Workers’ Union of Australia [2013] FCA 659 at 43:
In Duncans Holdings Limited v Cross (1997) 76 IR 261 at 263-264, Wilcox J construed the Timber Industry Consolidated Award 1990. That instrument used the expression “crib break”, whereas the Federal Award used the expression “a paid break”, although the heading of cl 26.2 is “overtime rest break”. The parties proceeded upon the basis that these were similar expressions to “crib break” as used by Wilcox J and the State Award. His Honour pointed out that there was a difference between a mere lunch break, for which one was not entitled to be paid, and a 20 minute crib break. His Honour observed that, in the lunch break, an employee was free to not only eat a meal, but to leave the workplace, as well as to socialise with workers elsewhere in the establishment. He said that in contrast, during a crib break, an employee could down tools and eat, but had to remain in the immediate workplace and be available in case of any emergency. Based on this reasoning, a decision that had construed an earlier version of the Timber Industry Award, Wilcox J found that in that case the crib break provided for in the award was paid time, because the employee remained on duty throughout.
The decision of Rares J in Linfox Australia does not really assist the Respondent. It is clear that Wilcox J in that passage was interpreting an award, which limits the potential application in the present context of what seems to be otherwise, and with respect to Wilcox J, eminently sensible logic.
The Respondents contended that the only evidence before the Court as to the nature of the lunch break came from Mr Morris, who stated that the Applicants were not required to work during that break and that they were, in fact, encouraged to leave the office during the break to eat their meal away from work and socialise with others.
The Applicants did not give evidence that they worked during their lunch break, in the sense that they carried on with the duties that they were performing before their lunch break and resumed after lunch.
The Court rejects the Applicants contention that they worked 45 hours per week, in circumstances where the evidence (or at least the inference can be drawn from the evidence) indicates that each took a one hour lunch break. The most they could have worked, therefore, was 40 hours per week. The Applicant’s contended interpretation of their contract of employment is unsustainable. If the contract had the effect that they contended for, the onus was on them to establish that it says this in clear terms. The evidence does not support a contention that they were required to work in their lunch break. The time sheets create the prima facie inference that each of the Applicants took a one hour lunch break, each day, whether it was at the time stipulated, or at some other time. They adduce no evidence that they were required to work during this time. They adduce no evidence that they did, in fact, work at this time. They had never made the claim that they were entitled to be paid for their lunch break before the hearing itself. It was not even contended in their respective applications.
There is simply no express term of the contract which supports the argument that the Applicants make about a paid lunch break. Nor is it possible to imply that term into the contract in question. In any event, the Court could only imply a term to the extent to which it is consistent with the actual terms of the contract. The actual terms of the contract leave no room for the interpretation contended by the Applicants.
Moreover, the interpretation of s.62 of the Act contended for the Applicants is incorrect. To suggest that, somehow, s.62(4) compels the Respondent to treat the lunch break as part of the hours that the Applicants worked in a week would require the lunch break to be treated as “leave” or “absence”, whether paid or unpaid, “that are authorised” by the employer, or as a term or condition of the employment, or under a law or instrument in force.
A lunch break does not fall within the provisions of s.62(4) of the Act. It would be an unreasonable interpretation of s.62(4).
The following passage is found in Stewarts Guide to Employment Law (5th ed, 2015, The Federation Press) at 119:
Meal and rest breaks
Another common feature of awards is to require the provision of meal breaks or other rest breaks. The number and nature of these breaks will depend on the length of time the employee is required to work, and also the time of day. Under the WR Act, award/agreement free employees were entitled to an unpaid mal break of at least 30 minutes after every five hours of continuous work. There is no equivalent standard under the FW Act. The matter is simply left to individual contracts. In practice, contractual provisions seem to be rare. Managerial or professional workers without set working hours are typically left to organise their own breaks, though clearly an employee can be instructed not to be away from work for too long.
Therefore, insofar as the Applicants’ claim for overtime is based on five hours attributable to the lunch break, it fails. Their claim, however, is also for the additional two hours, i.e. having worked 40 hours per week in circumstances where s.62 prescribes 38 as a maximum weekly hours.
The Respondent contends that s.62(2) may apply, in that the additional two hours are not unreasonable. In cross-examination the Applicants agreed that none of the matters referred to in s. 62(3) applied. Indeed, it would be difficult to envisage how that might be the case, in the present context, when the additional hours were only two hours each week. On the Court’s own review of the s.62(3) considerations, it could not be said that the additional two hours were unreasonable. Even the Respondent, in closing written submissions, referred to the legal nature of the work that the Applicants were doing, and the culture of working longer hours in the profession.
The Court finds that the Applicants were, in fact, working 40 hours per week, not the 45 hours as they contend. There is no breach of s.62 of the Act, however, as the additional hours were reasonable. Moreover, as indicated earlier in these reasons, there is no place for s.62(4) in somehow construing the lunch hours to constitute unpaid leave.
The claim by Mr Gorval for a bonus payment
Mr Gorval claims some $2,700, representing an incentive bonus for work that he introduced to the Respondent, but unpaid. There is no doubt that he introduced to the Respondent a client, Group 4 Securitas Pty Limited. Mr Gorval contends that, pursuant to the bonus scheme or sales incentive plan that was in place at the relevant time, he was entitled to five per cent of the value of the contract as an incentive bonus payment if there was a successful referral.
Mr Gorval’s claim, whilst ostensibly framed in the contract, was not supported by any documentation. The only evidence of an explicit policy that reflected the bonus scheme that he described in his evidence did not come into effect until much later. That bonus scheme, however, had similar terms, that is, five per cent of the value of the contract.
The Respondent declined the claim, relying on clause 7 of the contemporary policy that provides, in effect, that commission payments are only made if the employee is in employment at the end of the calendar month when the commission payment would normally become payable. It is common ground that Mr Gorval had already left the Respondent’s employ at the end of the relevant month.
Mr Gorval contends that he is still entitled to the payment, but accepts that it cannot be on the basis of a policy that was not in place when he made the introduction. In the absence of any documents establishing his contractual claim he relies on s.323 of the Act which states:
323 Method and frequency of payment
(1) An employer must pay an employee amounts payable to the employee in relation to the performance of work:
(a) in full (except as provided by section 324); and
(b) in money by one, or a combination, of the methods referred to in subsection (2); and
(c) at least monthly.
Note 1: This subsection is a civil remedy provision (see Part 4-1).
Note 2: Amounts referred to in this subsection include the following if they become payable during a relevant period:
(a) incentive-based payments and bonuses;
(b) loadings;
(c) monetary allowances;
(d) overtime or penalty rates;
(e) leave payments.
(2) The methods are as follows:
(a) cash;
(b) cheque, money order, postal order or similar order, payable to the employee;
(c) the use of an electronic funds transfer system to credit an account held by the employee;
(d) a method authorised under a modern award or an enterprise agreement.
(3) Despite paragraph (1)(b), if a modern award or an enterprise agreement specifies a particular method by which the money must be paid, then the employer must pay the money by that method.
Note: This subsection is a civil remedy provision (see Part 4-1).
The difficulty with this contention is that Mr Gorval has not, and indeed, cannot establish that the incentive bonus is an amount “payable to the employee in relation to the performance of work”.
It seems to the court, however, that pursuant to its accrued jurisdiction in this matter Mr Gorval’s claim could be considered as a claim for restitution, notwithstanding the termination of his contract. His is, in effect, a claim that the Respondent had been unjustly enriched and had taken the benefit of the work that he did which was over and above the services that he was obliged to provide to the Respondent. In the 10th Australian Edition of Cheshire & Fifoot Law of Contract at 26.6 the learned authors state:
Where a party has provided work or services or conferred other non-monetary benefits in performing a contract, the retention of such benefits without payment prima facie constitutes an unjust enrichment. The law of restitution potentially supplies an independent cause of action for the recovery of the value of the benefit conferred where the contract itself is invalid or unenforceable, or has been terminated. As in the case of claims for money, the right to claim restitution for non-monetary benefits conferred under a contract extends to a party in breach.
The learned authors refer to the High Court’s decision in Pavey & Matthews Pty Limited v Paul (1987) 162 CLR 221.
Clearly the Respondent has had the benefit of the value of the work that was introduced to it by the Applicant. To that extent, it has been unjustly enriched if it declines to pay to the Applicant an amount that constitutes the fair or reasonable value of the accepted benefit or enrichment. The best standard to use in assessing the value of that benefit is the standard set out in the Respondent’s contemporary policy, i.e. five per cent of the value of the contract or, in other words, the sum of $2,700.
Mr Gorval is entitled to receive a payment of $2,700, irrespective of the terms of the current policy which contained, one mentions in passing, a condition that appears oppressive, in the circumstances.
Mr Gorval’s claim to back payment of wages
Mr Gorval claimed that on or around 23 February 2015, on discovering that he was paid $5,000 less per annum than the other two Applicants whilst performing the same role, he approached the Managing Director of the Respondent, expressed dissatisfaction with his remuneration, and was informed that his salary would be increased in line with the other employees engaged in the same position. He claims $1,250, representing unpaid wages from 23 February 2015, the date of his meeting with the Managing Director of the Respondent, and the date that he received his increase in pay.
Mr Gorval’s evidence about this is found at paragraph 10 in part I, details of claim. He asserts that the Managing Director “...further advised the applicant that his pay would be rectified quickly and thanked the applicant for bringing the matter to his attention.” In fact, this didn’t happen until May 2015 to Mr Gorval’s detriment, he submits.
The Respondent contends that its Managing Director did precisely what he agreed to do, that is, rectify the situation quickly, hence the increase in salary by May, nearly three months later.
Mr Gorval contends, in effect, that even if this were the case the delay could hardly constitute a matter that was “rectified quickly”. Indeed, Mr Gorval’s evidence, unchallenged in cross-examination, is that it was the April 2015 performance appraisal and salary review that seems to have precipitated the pay increase in line with the other Applicants.
Mr Morris’ evidence, on behalf of the Respondent, was problematic because he was not a party to the discussions. Indeed, it may well have assisted the Respondent’s claim if the Managing Director could have given evidence about the issue. The thrust of Mr Morris’ evidence, and certainly the submission made, is that Mr Gorval never sought back payment to the date of the meeting with the Managing Director.
In these circumstances, the Court accepts the evidence of Mr Gorval.
The Court cannot see how this particular aspect of the dispute can be dealt with pursuant to the Act, but accepts that, once again, pursuant to its accrued jurisdiction the Court does have the ability to make the Orders sought, if it is otherwise proper.
The Court accepts that whatever contract existed between the Applicant, Mr Gorval, and the Respondent, on 23 February 2015 it was varied so that his income would increase from $65,000 to $70,000 on the basis that it was an anomaly that would be “rectified quickly”. Was the matter in fact rectified “quickly”, and if not, what passage of time ought to be allowed before which it could be said that the Respondent has breached its obligation to the applicant, Mr Gorval, and ought to be responsible for back pay?
The Oxford English Dictionary defines “quickly” to mean “in a lively manner, rapidly, with haste or speed”. This is the common sense meaning of the word, in any event. The “anomaly” was not rectified “quickly”. In the circumstances, the Court finds that the adjustment in pay should have been implemented no later than two weeks after the representation by the Managing Director. Mr Gorval is entitled to be paid the differences in pay, subject to taxation.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 18 March 2016
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