Hall v City Country Hotel Management Pty Ltd & Ors (No.2)
[2014] FCCA 2317
•10 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HALL v CITY COUNTRY HOTEL MANAGEMENT PTY LTD & ORS (No.2) | [2014] FCCA 2317 |
| Catchwords: INDUSTRIAL LAW – Whether applicant has been paid correct wages – whether first respondent removed applicant from roster because applicant inquired about whether he had been paid the correct wages – whether that amounted to adverse action – whether applicant suffered any loss or damage. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 341, 342, 361, 545, 545(2), Part 3.1 Federal Circuit Court of Australia Act 1999 (Cth), s.76(3) |
| Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333 |
| Applicant: | SAMUEL HALL |
| First Respondent: Second Respondent: Third Respondent: Fourth Respondent: Fifth Respondent: | CITY COUNTRY HOTEL MANAGEMENT PTY LTD THE WHITE HORSE HOTEL JOSHUA MEIJER EMMA MEIJER ALEXANDER SAVAGE |
| File Number: | SYG 1169 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 29 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 10 October 2014 |
REPRESENTATION
| Applicant in person. No appearance by or on behalf of the respondents. |
ORDERS
The first respondent pay the applicant the sum of $11,305.15.
The application against the second, third, fourth and fifth respondents stand over to a date to be fixed.
The applicant serve by ordinary prepaid post on the registered office of City Country Hotel Management Pty Ltd a sealed copy of these orders, together with a copy of r.16.05 of the Federal Circuit Court Rules 2001 (Cth).
The first respondent pay the applicant such costs as he may be entitled to as an unrepresented litigant.
THE COURT NOTES
Order 1 does not, and is not intended to affect rights the applicant has or may have against the second, third, fourth, and fifth respondents.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1169 of 2014
| SAMUEL HALL |
Applicant
And
| CITY COUNTRY HOTEL MANAGEMENT PTY LTD |
First Respondent
| THE WHITE HORSE HOTEL |
Second Respondent
| JOSHUA MEIJER |
Third Respondent
| EMMA MEIJER |
Fourth Respondent
| ALEXANDER SAVAGE |
Fifth Respondent
REASONS FOR JUDGMENT
Introduction
In these proceedings, the applicant, Mr Hall, claims his former employer underpaid wages due to him, and that he has suffered loss as a result of his former employer taking adverse action against him, contrary to s.340 of the Fair Work Act 2009 (Cth) (FW Act).
The matter first came before the Court on 10 June 2014. Mr Hall was not legally represented, and there was no appearance by or on behalf of the persons Mr Hall named as respondents, namely, “Joshua Meijer Savage Hall Management. At the first court date, it was clear that the persons against whom Mr Hall intended to bring this claim included at the very least his former employer; yet, it was apparent that the person and entity whom Mr Hall named as the respondents were not or, at least, may not have been his employer. I accordingly granted Mr Hall leave to file an amended application which would name as a respondent Mr Hall’s former employer. I also directed that by 1 July 2014 Mr Hall file all evidence on which he intends to rely. The matter was then relisted before me on 8 July 2014.
By 8 July 2014, Mr Hall had filed an affidavit. In that affidavit, Mr Hall named four respondents – Joshua Meijer, Emma Meijer, Alexander Savage, and City Country Hotel Management Pty Ltd. Mr Hall did not file, however, an amended application. I granted Mr Hall leave to file an amended application naming as respondents the persons Mr Hall named as respondents in his affidavit. I directed that Mr Hall serve the amended application on the named respondents, and adjourned the matter to 29 July 2014. Mr Hall filed an amended application, and an amended form 2 in which he named these persons as respondents, but, in addition, “The White Horse Hotel”.
The matter came before me again on 29 July 2014. There was no appearance by any of the respondents. Mr Hall stated he intended to proceed on his application. Mr Hall gave evidence of the steps he took to serve the respondents. I am satisfied Mr Hall properly served City Country Hotel Management Pty Ltd (CCHM). I am not satisfied, however, Mr Hall properly served any of the other respondents.
In these reasons for judgment, I deal with Mr Hall’s application against CCHM.
Facts
On 2 June 2013 Mr Hall commenced work at The White Horse Hotel (Hotel). It is not entirely clear who employed Mr Hall. It is likely, and I find, that CCHM was Mr Hall’s employer. I base that finding largely on the evidence given by Mr Hall in paragraph 13.9 of his affidavit. In that paragraph, Mr Hall notes that according to searches he has undertaken, the lease of the land on which the Hotel is situated is held by The White Horse Freehold Pty Ltd who has subleased it to Savage Hotel Management Pty Ltd, the previous name of CCHM.
CCHM employed Mr Hall initially to collect glasses from tables (“glassie), and clean tables, and then as a bartender. CCHM employed Mr Hall as a casual employee. Mr Hall worked on days, and for hours that frequently differed from week to week. Mr Hall’s employment was covered by the Hospitality Industry (General) Award 2010 (Award).
In December 2013, Mr Hall became concerned CCHM was not paying him the amounts he should have been paid under the Award. After a number of failed attempts to raise his concerns with Mr Joshua Meijer and Mr Alexander Savage (who apparently is known as “Boo” Savage), Mr Hall, on 28 December 2013, sent an email to Ms Emma Meijer who was responsible for payroll. In that email, Mr Hall stated:[1]
As of last week i [sic] had notified both Boo and Josh about the fact that i [sic] was not being paid the bartender wage. I have been performing this duty for towards 2 months now without receiving adequate pay. Attached is the pay rate that i [sic] need to be paid from now on (taken from the fair work website) as a grade two casual food and beverage attendant. This rate also needs to be back-paid over the hours i [sic] have worked as a bartender over the past 2 months. With this back-pay superannuation needs to be paid and there needs to be a time-sheet filled out showing that all hours i [sic] have worked have been back-paid.
Prior to this work as a bartender i [sic] have now discovered that my glassy rate (grade one casual food and beverage assistant) was underpaid as well, receiving a rate of around 16-17 base, where i [sic] needed to be paid closer to 20-21 base. . . .
It is reasonable to expect that these two corrects be made in a timely manner considering I brought the first one up with management 2 weeks ago, and also considering i [sic] should not be having to deal with these issues.
[1] Affidavit of S. Hall, 29.06.14, annexure “B”
After he sent that email, Mr Hall had a conversation with Mr Boo Savage who informed Mr Hall that Ms Emma Meijer said that Mr Hall was being paid the correct rate because he was a part-time employee. That is apparent from an email Mr Hall sent to Ms Emma Meijer on 31 December 2013 in which Mr Hall said:[2]
Boo informed me yesterday that your response to my email was that i [sic] was a part time employee and as such that was the correct rate. However i [sic] am definitely not a part time employee. The fair work website is clear about this, requiring that a part time employee have a written agreement with his employer stating the number of hours to be worked each week, which days and times these hours will be, set starting and finishing times, overtime if in excess of these hours, and any changes in hours to be agreed upon in writing before they are made.
I do not fit a single one of these criteria for being classed as a part time employee, my hours vary every week, my days of work vary as well, i [sic] was never informed in person or in writing that you intended me to be a part time employee, and we have no written agreement about hours, shift times or pay.
As such my original email stands, and i [sic] expect to be backpaid to the casual rate, as this is clearly the work i [sic] have been doing for your company.
[2] Affidavit of S. Hall, 29.06.14, annexure “B”
Ms Meijer responded to Mr Hall’s email by an email on the same day, stating she would not be dictated to by any staff member, and that she would communicate with Mr Hall as she saw fit. Ms Meijer implied this would be through “Boo” or “Josh”. Ms Meijer also said she was on maternity leave.
Mr Hall followed the matter up with Mr Meijer by email sent on 3 January 2014. On the same day, Mr Hall followed up on the previous emails sent to Ms Meijer dated 28 and 31 December 2014 noting that no further action had been taken regarding Mr Hall’s last email. Ms Meijer forwarded this email to Mr Meijer on 4 January 2014. By email sent on 4 January 2014, Mr Meijer informed Mr Hall that he “will follow up in a week”.[3]
[3] Affidavit of S. Hall, 29.06.14, annexure “B”
On or about 7 January 2014, Mr Hall became aware that he had been removed from the roster. By email sent to Mr Meijer on 10 January 2014, Mr Hall informed Mr Meijer that his name had been completely taken off the roster, even though he had been previously advised by Mr Boo Savage that Mr Hall would be working on 10 and 11 January 2014. Mr Hall requested that Mr Meijer respond by 13 January 2014 by email. Mr Hall also noted Mr Meijer had not followed up on Mr Hall’s claims that he had been underpaid.
Mr Meijer responded on 10 January 2014 as follows:[4]
[4] Affidavit of S. Hall, 29.06.14, annexure “B”
Rostering is controlled by boo and the amount of business
You did mention you where [sic] casual and as you stated you “don’t have set hours”
I do not care about your deadlines, pay role is on maternity leave and will deal with your claims when she is back
. . .
As you are trying to creat [sic] a fair work claim I suggest you priced [sic] with this action ASAP. When I win I will have you pay my costs
On 31 January 2014, Mr Hall lodged a complaint with the Fair Work Commission (FWC). A mediation conference was conducted by the FWC on 14 February 2014, but the matter was not resolved. On 17 February 2014 Mr Hall was contacted by Mr Savage with a request that Mr Hall work between 9.30 pm and 12 midnight on 22 February 2014.
Apart from the request Mr Hall work for 2.5 hours on 22 February 2014, Mr Hall had not been requested to do any work on or after 7 January 2014. Mr Hall does not say whether he accepted the offer to work for 2.5 hours. He only noted in his affidavit that the number of hours offered to him was less than the statutory minimum shift period of three hours. I find that Mr Hall did not accept the offer to work the 2.5 hours.
Claim for wages
I am satisfied that:
a)Mr Hall was employed by CCHM as a casual employee;
b)when he worked as a “glassie”, Mr Hall was a “Casual Food and Beverage Attendant Grade 1” for the purposes of the Award, and, when he worked as a bartender, Mr Hall was a “Casual Food and Beverage Attendant Grade 2”, and was entitled to be paid the rates the Award prescribed should be paid to employees of that classification;
c)Mr Hall was paid an amount less than the amounts he was entitled to receive under the Award, and that amount is $2,696.91.
Adverse action claim
Mr Hall states his claim as follows:
s.340
Employer took adverse action on the applicant after the applicant initiated an enquiry as to why he was being significantly underpaid. The response of the employer was a mix of rude, misleading and threatening emails followed by all previously assigned shifts being cancelled and the applicant’s name being removed from the roster.
The evidence shows CCHM contravened s.340. First, the removal of Mr Hall from the roster, and his not being included in the roster constituted “adverse action” within the meaning of s.342 of the Act. It constituted a dismissal of Mr Hall’s employment, or an injury to Mr Hall in his employment or an alteration of Mr Hall’s position to his prejudice. Second, the reason for which Mr Hall claims CCHM took the adverse action against him was Mr Hall’s investigating with CCHM the underpayment of his wages. That was an inquiry “in relation to his . . . employment”, and thus constituted the exercise of a workplace right within the meaning of s.341 of the FW Act. Third, Mr Hall alleges that the reason CCHM took adverse action against him was because he made an inquiry in relation to his employment, and he has taken proceedings against CCHM in relation to a contravention of Part 3.1 of the FW Act. That means that, because of s.361 of the FW Act, CCHM is deemed to have taken the adverse action against Mr Hall for the reason, or for reasons that includes as a substantial reason, Mr Hall’s having exercised a workplace right.
Compensation
Having contravened s.340 of the Act, CCHM is liable under s.545(2) to an order that it pay compensation for loss that a person has suffered because of a contravention.
Mr Hall claims he has suffered three heads of loss for contravention of s.340 of the Act. The first is loss of wages in the amount of $7,300. It took Mr Hall some time to find new employment. He does not say when he found the new employment. He only says he received his first pay cheque at a new job on 13 March 2014. I find that Mr Hall commenced his new job one week before, namely, on 6 March 2014. Accordingly, Mr Hall was without employment for some 8.5weeks after 5 January 2014, being the last day on which Mr Hall worked at CCHM. Mr Hall claims that, had CCHM not taken the adverse action, CCHM would have continued to roster Mr Hall at least for the same time he was rostered during the five weeks immediately before CCHM removed him from the roster. Mr Hall worked an average of 25 hours a week at $584 a week. On that basis, Mr Hall claims that his loss is $4,964 ($584 x 8.5).
I find that had CCHM not taken adverse action against Mr Hall, it would have continued to roster Mr Hall for an average of around 25 hours a week after 5 January 2014. On that basis, I find Mr Hall suffered loss of wages for the period commencing 6 January 2014 and ending 5 March 2014, being the day before I have found he commenced his new employment. That is a period of 8.5 weeks. This is less than the period claimed by Mr Hall because Mr Hall includes a notice period of two weeks. In my opinion, it is incorrect to include such two week notice period. First, having been a casual employee, he was not entitled to any notice. Second, even if Mr Hall was entitled to notice, the amount of compensation would be the same. That is so because the compensation would have been calculated on the basis that his employment had ceased on 19 January 2014.
Accordingly, I find that Mr Hall lost income of $4,964 from 6 January 2014 to 5 March 2014 because of CCHM’s contravention of s.340 of the FW Act.
The second head of loss Mr Hall claims is the 9.25% superannuation CHM would have contributed had Mr Hall been employed by CCHM up to 5 March 2014. That amounts to $459.17. I find that Mr Hall did not receive such superannuation contribution because of CCHM’s contravention of s.340 of the FW Act.
The third head of loss is what I will refer to as shock, distress, and humiliation. Mr Hall described that loss as follows:
In the period after my employment was terminated, I was absolutely devastated, and became withdrawn, suffered from an inability to sleep and generally became very difficult for my family to live with me for quite a period of time. While I did not seek medical assistance at the time, I believe that this whole process has been absolutely devastating and has significantly affected me.
A compensatory order for distress, hurt and humiliation is available under s.545 of the FW Act.[5] It can only be made if the applicant has in fact suffered distress, hurt, and humiliation as a result of the contravention.
[5] Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333 (Barker J)
I am satisfied Mr Hall did suffer such distress, hurt, and humiliation. I base my finding not only on what Mr Hall has deposed, but also on the fact that the conduct of Ms Meijer and Mr Meijer which I have outlined above is likely to cause distress, hurt, and humiliation to a reasonable person in the position of Mr Hall. In the circumstances, I consider $2,500 to be an appropriate amount of compensation.
Conclusion and disposition
CCHM has failed to pay to Mr Hall the wages to which he was entitled. CCHM has also contravened s.340 of the FW Act, as a result of which Mr Hall has suffered the following losses
a)$2,696.91 for unpaid wages;
b)$4,964 for loss of wages between 6 January 2014 to 5 March 2014;
c)$459.17 for superannuation; and
d)$2,500 for distress, hurt, and humiliation.
The sum of these amounts is $10,620.08.
I propose to order that CCHM pay this amount together with interest pursuant to s.76(3) of the Federal Circuit Court of Australia Act 1999 (Cth) calculated from 7 January 2014 which, in my opinion is the date on which the cause of action arose, until 10 October 2014. In my opinion, it is appropriate that I apply the rate of 8.50%, being the rate prescribed by r.39.06 Federal Court Rules 2011 (Cth). The amount of interest on $10,620.08, therefore, is $685.07, which means I will order that CCHM pay to Mr Hall the sum of $11,305.15.
I also propose to order that Mr Hall serve by ordinary prepaid post on the registered office of CCHM a sealed copy of the orders I propose to make, together with a copy of r.16.05 of the Federal Circuit Court Rules 2001 (Cth).
Finally, I will stand the application over to a date to be fixed to provide Mr Hall an opportunity to serve the application on the second, third, fourth and fifth respondents. Nothing that I have said in these reasons, or that I will order on the basis of these reasons, is intended to affect such rights as Mr Hall may have against these respondents.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 10 October 2014
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