Hannan v Waggamba Medical Centre
[2013] QMC 23
•8 November 2013
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Hannan v Waggamba Medical Centre [2013] QMC 23
PARTIES:
ELYSE LEE HANNAN
(plaintiff)
v
WAGGAMBA MEDICAL CENTRE PTY LTD
(defendant)
FILE NO/S:
M2/13
DIVISION:
Magistrates Courts
PROCEEDING:
Employment Claim
ORIGINATING COURT:
Magistrates Court at Goondiwindi
DELIVERED ON:
8 November 2013
DELIVERED AT:
Brisbane
HEARING DATE:
3 September 2013, 17 October 2013
MAGISTRATE:
Lee GC
ORDER:
The defendant employer pay the plaintiff $1119.74
CATCHWORDS:
INDUSTRIAL LAW – “Employment claim” – resignation of employee plaintiff – whether accrued annual leave upon termination – if so, recovery of accrued leave and annual leave loading – recovery of last week of wages
Fair Work Act 2009 (Cth), s 16, s 20, s 55, s 56, s 59, s 61, s 87, s 90, s 535, s 536
Fair Work Regulations 2009 (Cth), r 3.31, r 3.44
Magistrates Courts Act 1921(Qld), s 42A, s 42BNurses Award 2010
Ryan v Whitehaven Coal Mining Pty Ltd, [2013] NSWLC 11 (26 July 2013)
COUNSEL:
K Crank for plaintiff
L Wilson (solicitor) for defendant
SOLICITORS:
Queensland Nursing Union for plaintiff
Doyle Wilson Solicitors for defendant
On 1 March 2013 the plaintiff commenced an “Employment claim” in this court pursuant to Part 5A of the Magistrates Courts Act 1921 (the Act)[1]claiming $5820.35 comprising $4188.81 accrued annual leave, associated leave loading of $733.04 and one weeks pay of $898.50 (gross)[2].
[1] Part 5A was inserted in to the Magistrates Courts Act 1921 by Part 6 of the Industrial Relations Act and Other Legislation Amendment Act 2007 (No 23 of 2007) with effect from 1 January 2008 (s 2(1));
[2] Amended Employment Claim dated and filed 7 August 2013;
In its defence the defendant opposed the claim in its entirety although during addresses at end of the trial conceded that part of the final week’s wages of $898.50 ie $448.50 remains owing[3]. The defendant had paid $450[4] by three $150 instalments after the plaintiff’s employment ceased[5]. That part of the claim therefore does not remain an issue although, as a trial, still had not been paid.
[3] At para [8] of affidavit of Practice manager Paul Jones conceded that $311.14 was owed. However, it appears he arrived at that figure by deducting the $450 from the net pay of $761.14;
[4] $898.50 less $450 = $448.50;
[5] Paragraphs 3 & 4 submissions for the defendant; para [8] affidavit of Paul Jones; exhibit B affidavit of the Plaintiff (her bank statements); exhibit 1 (original wages book);
There is no dispute that this is an “Employment Claim” as defined in Part 5A. The plaintiff was an employee of the defendant as a registered nurse. She commenced employment as a casual on 17 August 2010, became permanent full time on
12 January 2011[6] and resigned by letter dated 1 August 2012[7] effective 15 August 2012. Her annual wages were not more than $98000 per annum and that the claim arises out of, among other things, a breach of the Nurses Award 2010 made under the Fair Work Act 2009 (Cth)[8].
[6] See paragraph [5] affidavit of Paul Jones affirmed 27 August 2013 and Exhibit 1 (wages book) ; I note the plaintiff says at paragraph [4] of her affidavit affirmed August 2013 that it was 18 January 2013. Nothing turns on this as the trial was conducted on the basis that is was 12 January 2013;
[7] Exhibit A to the Plaintiff’s affidavit affirmed August 2013;
[8] See section 42B in Part 5A Magistrates Courts Act 1921;
Part 5A of the Act also provides for the procedures for such claims. A conciliation conference before Deputy President Bloomfield of the Queensland Industrial Relations Commission was unsuccessful and a Conciliation Certificate has been filed to that effect[9].
[9] See Conciliation Certificate dated 21 March 2013 filed under section 42L(1) in Division 2 Part 5A of the Act which provides for conciliation of such disputes. A Magistrates Court is precluded from hearing and deciding an unresolved dispute until a Conciliation Certificate has been filed: section 42L(2);
The evidence at trial was by affidavit and oral evidence. The plaintiff filed her affidavit affirmed in August 2013 and gave oral evidence. Also filed in support of her claim was an affidavit of Ms C Taylor, an industrial officer employed by the Queensland Nurses Union of Employees sworn 7 August 2013. She did not give oral evidence.
The defendant called the sole director of the defendant general practitioner Dr D Waldron whose evidence was brief and her practice manager Mr Paul Jones who was the main witness for the defendant. They also filed affidavits affirmed 27 August 2013. One exhibit tendered is the handwritten “time, pay and wages book” of the defendant for the period 1 July 2010 to 30 June 2013 consisting of three booklets.
The Law
It is not contentious that the employer/employee relationship between the parties is governed by the industrial relations provisions of the Fair Work Act 2009 (Cth) (FWA) which predominantly came into force on 1 July 2009[10].
[10] Together with a suite of other legislation - the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and the Fair Work (State Referral and Consequential and Other Amendments) Act 2009. The Fair Work system extends to all private sector employees in Queensland; Queensland had referred certain workplace relation matters to the Commonwealth;
The objects of the FWA in section 3 include:
The object of this is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
…
(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and
(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and …
National Employment Standards (NES) in Part 2-2 of the FWA came into force on
1 January 2010 replacing former “Australian Fair Pay and Conditions Standard” made under the former Workplace Relations Act 1996 (Cth)[11].
[11] Most of which was repealed by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009;
Relevantly, the scheme of the FWA is that the NES in Part 2-2 thereof provides for
10 minimum standards of employment one of which relates to annual leave in Division 6 which cannot be displaced[12]. The scheme allows for awards such as the Nurses Award 2010 in this case to supplement or improve the NES standards but not to diminish employee’s rights given by the NES standards. Any provision that purports to do so has no effect[13] The Nurses Award 2010 commenced 1 January 2010[14]
[12] Sections 59 & 61(2)(d) FWA;
[13] Sections 55, 56, 136(2)(b) & 137 FWA;
[14] Clause 2.1;
It is not disputed that the plaintiff was a full time employee who was not a shift worker. Under the NES she is entitled to 4 weeks annual leave for each year of service with the defendant accruing progressively during each year of service according to her “ordinary hours of work” [15] which, in this case, is 38 hours per week as provided for in clause 21.1 Nurses Award 2010[16]. Consistent with the legislative scheme enabling provisions of an award to provide for greater entitlements, by clause 31.1 (a) & (c) Nurses Award 2010, the plaintiff is entitled to an additional week making it five weeks annual leave for each year of service.
[15] Section 87(1)(a) & (2) FWA;
[16] Section 20 FWA defines “ordinary hours of work” for award free employees only;
In addition to that, by clause 31.4 Nurses Award 2010 the plaintiff is entitled to
17.5 % loading of her ordinary pay. The NES is silent on this. The parties can agree in writing to vary this but only if the employee is better off overall: clause 7 Nurses Award 2010. There is no evidence of that in this case. Clause 31.4 provides:
31.4Annual leave loading
(a)In addition to their ordinary pay, an employee, other than a shiftworker, will be paid an annual leave loading of 17.5% of their ordinary pay on a maximum of 152 hours/four weeks annual leave per annum.[17]
[17] 152 hours is based on a 38 hour week – in this case being 7.6 hours per day five days a week;
(b)…
It follows that the plaintiff is not entitled to 17.5% leave loading on the fifth week of annual leave accrued in each year of service according to ordinary hours of work.
The NES and the Nurses Award 2010 provide for the payment of annual leave taken during employment and upon termination. Section 90 FWA provides:
Payment of annual leave
(1)If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.
(2)If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.
“[B]ase rate of pay” in section 90(1) is defined in section 16 FWA as meaning the rate payable for ordinary hours of work excluding a range of other payments such as loadings, overtime and penalty rates, and monetary allowances[18].
[18] Section 16(1)(a) to (e) FWA; ‘loadings’ is in (b);
Clauses 18.3 under “Payment of wages” and 31.5 under “Annual leave” of the Nurses Award 2010 respectively provide:
18.3When notice of termination of employment has been given by an employee … payment of all wages and other monies owing to an employee will be made to the employee (my emphasis)
31.5Payment of annual leave on termination
On termination of their employment, an employee will be paid their untaken annual leave and pro rata leave.
The legal basis for payment of moneys upon termination is not disputed in this case.
In reliance on the decision in Ryan v Whitehaven Coal Pty Ltd [2013] NSWLC 11[19] it was submitted for the plaintiff that upon termination, if the plaintiff has untaken accrued annual leave, the defendant must pay all that annual leave as well as the
17.5 % loading in respect of all that untaken accrued leave being “the amount that would have been payable [to her] had [she] taken that period of leave” in accordance with section 90(2)[20].
[19] A decision of Magistrate M. Bruscombe regarding the effect of the NES and the provisions of the “Whitehaven Open Cut Operations (Tarrawonga) Enterprise Agreement” on section 90 FWA; it appears to be the first court decision on the construction of section 90(2) FWA- see paragraph [16] of the judgment;
[20] Paragraphs [11] to [14], [25], [26] submissions for the plaintiff;
Unlike this case, it was not disputed in Ryan that there was untaken accrued annual leave. The dispute was over the construction of section 90(2) FWA as to whether payment upon termination should include the leave loading as well as the base rate of pay. In fact, the quantum of that was agreed between the parties if the court came to that view which it did.
While not affecting the interpretation of section 90(2) FWA in Ryan as it applies to this case there are some points of distinction between Ryan and this case. First, in Ryan, clause 14.1 of the Enterprise Agreement provided an entitlement to 5 weeks annual leave per year accruing progressively and that payment “will be the greater of:- their ordinary time rate of pay and an annual leave loading of 20%; or – the projected roster earnings….”[21]. Unlike this case, the entitlement to 20% loading applies to the five weeks whereas in this case the 17.5% loading is limited to four of the five weeks by clause 31.4 Nurses Award 2010.
[21] Taken from paragraph [11] of the judgement in Ryan;
The second point of distinction between Ryan and this case is that in Ryan the Enterprise Agreement did not provide for what was to happen on termination whereas clause 31.5 Nurses Award 2010 cited above does requiring consideration of its effect.
After referring to statements of general principle on the construction of statutes in Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355, the legislative scheme of the FWA, and the ordinary meaning of the words in section 90(2) FWA, it was concluded in Ryan at [65]:
65 The enterprise agreement under which the applicant was employed provided for payment of taken paid leave at a rate greater than the base rate of pay. The amount to be paid for untaken annual leave upon the end of the applicant’s employment was to be calculated at that rate. That, in my opinion, is the effect of s 90(2) of the Fair Work Act.
That is, the worker was entitled to be paid accrued annual leave at the “ordinary time rate of pay” plus the 20% loading upon termination being the “amount that would have been payable to the employee had the employee taken that period of leave”.
I did not receive any submissions from the defendant on this point.
I agree with the analysis in Ryan. Section 90(1) FWA provides a minimum entitlement to payment of the base rate for taken annual leave. Consistent with the legislative scheme enabling awards to provide greater entitlements to those in the NES, the Nurses Award 2010 provides for payment of taken leave at a rate greater than the plaintiff’s base rate which includes the 17.5 % loading: clause 31.4. So, upon termination an employee is entitled to be paid that for untaken accrued annual leave which is the “the amount that would have been payable to the employee had the employee taken that period of leave” being a minimum entitlement provided for in section 90(2) FWA. The scheme envisages cases where there is no award or where an award does not add to the NES entitlements. In such cases, taken leave under section 90(1) FWA would be paid at the base rate and it follows that upon termination the employee would be paid at that base rate under section 90(2) FWA.
In this case therefore, under section 90(2) FWA the plaintiff is entitled to be paid any untaken accrued annual leave at the base rate plus 17.5% loading for the first four weeks of accrued annual leave in any one year. In my view clause 31.5 Nurses Award 2010 does not alter this even if it purports to do so. Section 90(2), and the meaning attributed to it, provides a minimum standard that cannot be diminished.
Is there any untaken accrued annual leave?
The plaintiff’s case is that as at 14 August 2012 she had accrued 39.31 days of annual leave since 18 January 2011 and had taken 16 days leaving 23.31 days untaken. This is disclosed in a document provided by former office manager of the defendant, Ms J Blay, entitled “Employee Leave Record – Waggamba Medical Centre – Management Accounts”[22]. Ms Blay was not called as a witness. It appears from the Wages Book (exhibit 1) that Ms Blay was mostly on sick leave during her final three weeks employment with the defendant in late August 2012.
[22] Paragraph [6] and Exhibit “C” to plaintiff’s affidavit; a notation at the foot of that document indicates it was printed out Tuesday 28 August 2012;
The plaintiff’s case is that, she was paid an hourly rate at the time of termination of $23.64 which is the pay scale for Level 1-8 registered nurses under the Nurses Award 2010. This is not disputed[23]. Thus she claims $4188.81 accrued annual leave plus $733.04 being 17.5% loading on the $4188.81.
[23] While the defendant agreed that the plaintiff was paid this rate at the time of termination, it disputes her legal entitlement to that rate and says that she should have been paid at a lower rate under the award; but the hearing focussed on Mr Jones calculation of what leave had been taken;
In response the defendant says that the plaintiff has in fact taken 16.62 hours of paid leave more than she was entitled to[24]. Mr Jones undertook a rather convoluted exercise of cross referencing the manual Wages Book (exhibit 1) and other electronic records of the defendant. The medical practice used a software program called “Best Practice”. While part of the records in “Best Practice” was corrupted due to hacking, the Practice Accounts Payroll System dealing with pay details was not corrupted. Mr Jones also referred to the “Best Practice Appointment Calendar”[25] which was also not corrupted[26].
[24] Paragraph 12 and exhibit “D” affidavit of Paul Jones;
[25] Exhibit C affidavit of Paul Jones;
[26] Exhibit CT-B to the affidavit of Cheri Taylor which is a letter from the defendant’s solicitors dated 30 November 2012;
The focus of the trial was on Mr Jones’ evidence in undertaking that convoluted exercise. If the case depended solely on that, I would have had difficulty in being persuaded by it particularly his interpretation of the Best Practice Appointment Calendar that the plaintiff must have taken annual leave at other times not recorded in the Wages Book because it was noted in that calendar that she was unavailable to see patients on various dates[27]. While clause 31.6 of the Nurses Award 2010 provides that an employee may be directed to take paid annual leave during close down periods, there is no evidence of any such direction in this case.
[27] A summary of which is condensed in Exhibit “D” to Mr Jones affidavit; also, it takes into account an entry on 22 December 2010 when the plaintiff was a casual – this is irrelevant; it also lumps annual leave and sick leave together without the ability to differentiate;
However, for reasons that follow, I conclude that, according to the records, the plaintiff has taken much more annual leave than that disclosed in Exhibit “C” to her affidavit for which she has already been paid.
I should make some observations about Exhibit “C” to the plaintiff’s affidavit – the Employee Leave Record said to be provided by Ms J Blay who was the office manager at the time whose duties included employee pays and associated record keeping. There was a suggestion she was a friend of the plaintiff.
The Employee Leave Record says the commencement date of the plaintiff’s full time employment was 18 January 2011[28] whereas it has been recorded elsewhere in the employer’s records as 12 January 2011. The 18 January is the end of the first week of full time employment.
[28] A Tuesday;
That record states that 39.31 days have accumulated between 18 January 2011 and
14 August 2012. Mr Jones has calculated accumulated leave to be 40.21 days[29]. He arrived at that figure on the basis of there being 418 days worked with reference to a 260 working day year for the entire period of the plaintiff’s full time employment[30]. To work out the accrued annual leave for the whole period Mr Jones divided the five weeks entitlement per year by 52 weeks in a year to get a multiplier of 0.0962. He then multiplied that by 418 to arrive at 40.21 days accrued annual leave. Understandably, this was not seriously challenged by the plaintiff.
[29] Paragraph [10] of his affidavit;
[30] I note that 2012 was a leap year;
However, for the purposes of verifying the accuracy of the Employee Leave Record (Exhibit “C” to the plaintiff’s affidavit) by counting Mondays to Fridays in each month on a calendar it appears the actual work days for the period 12 January 2011 to and including 15 August 2012 was 416 days[31] (261 days from 12 January 2011 to
11 January 2012 plus 155 days from 12 January 2012 to 15 August 2012). Adopting Mr Jones multiplier of 0.0962 the accrued leave comes to 40.02 days.
[31] Including public holidays;
Alternatively, again using a calendar, there are 411 work days for the period stated in Employee Leave Record of 18 January 2011 to 14 August 2012[32]. Using Mr Jones multiplier of 0.0962 which I think is reasonable, accrued annual leave comes to 39.54 days. These are minor differences. For present purposes, in light of the above analysis, I will adopt the 39.31 days on the basis that this is the plaintiff’s claim.
[32] Including public holidays;
The Employee Leave Record then purports to set out what leave has been taken and when[33]:
[33] Excluding Long Service Leave heading which simply stated “0” accrued and “0” taken;
Leave From Date
Leave To Date
Days Taken
Annual Leave
18/01/2011
18/01/2011
0.00 day/s
15/06/2012
08/07/2012
16.00 day/s
Days taken:
16.00 for Annual Leave
Paid Personal/Carers Leave
18/01/2011
18/01/2011
0.00 day/s
23/01/2012
26/01/2012
3.00 day/s
Days taken:
3.00 for Paid Personal/Carers Leave
For the annual leave entry I note that 8 July 2012 is a Sunday and for the personal/carers leave entry that 26 January 2012 is a public holiday (Australia Day).
While there are some justifiable criticisms of the Wages Book (exhibit 1), I note from it that the normal pay cycle was five days per week from Wednesday to the following Tuesday excluding weekends. The 16 days of annual leave actually concluded on Friday 6 July 2012. I also note section 98 FWA which provides that an employee is taken not to be on paid personal/carer’s leave on a public holiday. The Nurses Award 2010 is silent on this: see clause 34.
Also, the stated 3 days personal/carers leave from Monday 23 January 2012 appears incongruous with her payments of annual leave and loading for four days annual leave for Wednesday 25, Friday 27, Monday 30 and Tuesday 31 January 2012. If the Wages Book entries of annual leave payments are accepted there would only be a maximum of 2 days personal/carers leave i.e. Monday 23 and Tuesday 24 January 2012. This will be discussed further below.
These issues, along with what follows herein, lead me to conclude that the Employee Leave Record (Exhibit “C” to the plaintiff’s affidavit) should be treated with caution. I come to this view for reasons separate from those proffered by Mr Jones.
According to the Wages Book (exhibit 1) for all periods and for the last period a combination of the Wages Book and the plaintiff’s own case, the plaintiff took four periods of paid annual leave totalling 37 days[34]. The first three periods are not mentioned in the Employee Leave Record (exhibit “C” to the plaintiff’s affidavit) at [37] above:
· Thursday 3 and Friday 4 March 2011 (2 days)
· Monday 26 September 2011 to Friday 14 October 2011 (15 days)
· Wednesday 25 January 2012, Friday 27, Monday 30 and Tuesday 31 January 2012 (4 days) (Thursday 26th was a public holiday)
· Friday 15 June 2012 to Friday 6 July 2012 (16 days)
[34] This generally aligns with the summary of what was in the Wages Book in Exhibit “D” to Mr Jones affidavit with the exception of 27 June 2012 to 6 July 2012 which could not be obtained he said due to computer issues;
The first two periods of leave fall within the first 12 months of the plaintiff’s full time employment (12 January 2011 to 11 January 2012). The second two periods fall within the second (12 January 2012 to 15 August 2012).
On the one hand the Employee Leave Record purports to give accrued leave over the plaintiff’s 19 month’s fulltime employment from 18 January 2011 to 14 August 2012 (39.31 days), but on the other it only includes one of the four annual leave periods, that is, the last period of annual leave taken during her second year of fulltime employment if the payment of annual leave and leave loading in the Wages Book (exhibit 1) is accepted.
Given the criticisms of the Wages Book as outlined in submissions for the plaintiff[35] some of which may have merit, I would be less inclined to accept those records alone without other corroborating documentary evidence. But there is in this case.
[35] Paragraph 19 (vii) submissions for the plaintiff;
The plaintiff has exhibited to her affidavit her Commonwealth Bank statements for the period 6 July 2011 to 6 September 2012 showing all payments from her employment with the defendant. It is not clear why she did not include bank statements from January 2011 when she commenced full time work.
The first point to note is that each and every weekly net figure recorded in the Wages Book (exhibit 1) was credited into the plaintiff’s bank account from 6 July 2011 to
6 September 2012. This is the bank account into which “all payments [were] made …by the Waggamba Medical Centre from July 2011”[36].
[36] Paragraph 11 and exhibit “B” affidavit of the plaintiff;
For example, for the week ending Tuesday 5 July 2011 the Wages Book records $637.96 net for that five day week. The bank statement shows that on 6 July 2011 $637.96 was credited to her account. For the weeks ending 12 & 19 July 2011 the Wages Book records $637.96 net for each of those weeks. On 19 July 2011 $1275.92 was credited to her account ($637.96 x 2). For the week ending 26 July 2011 $637.96 net in the Wages Book was credited to her account on 27 July 2011. The only entry in the bank statement not described as wages and not recorded in the Wages Book is a bonus of $50 credited to her account on 19 July 2011.
For the week ending 2 August 2011 the net amount in the Wages Book was $642.96 which was credited into her account on 3 August 2011 and then each week until the week ending 20 September 2011 when $776.19 net recorded in the Wages Book was credited into her account on 21 September 2011 and so on.
Importantly in this case the last three periods of paid annual leave recorded in the Wages Book as having been taken at para [42] above show that the calculated net amounts in the Wages Book have been credited to the plaintiff’s account.
For the annual leave in the Wages Book for the period Monday 26 September 2011 to Friday 14 October 2011 four net amounts are recorded for weeks ending
27 September 2011, 4, 11 & 18 October 2011 of $795.14, $806.77, $806.77 & $772.51 respectively. The first three amounts totalling $2408.68 were credited to the plaintiff’s account on 29 September 2011. The fourth amount of $772.51 was credited to her account on 20 October 2011.
For the annual leave in the Wages Book for Wednesday 25 January 2012, Friday 27, Monday 30 & Tuesday 31 January the net amounts of $785.46 and $785.46 recorded in the Wages Book for the weeks ending 24 & 31 January 2012 respectively were credited to the plaintiff’s account on 26 January and 1 February 2012 respectively.
For the annual leave for Friday 15 June 2012 to Friday 6 July 2012 net amounts of $813.89, $848.41, $857.41 & $810.61 recorded in the Wages Book in the weeks ending 19, 26 June, 3, 10 July 2012 respectively were credited to the plaintiff’s account on 20 June, 28 June, 4 July & 12 July respectively.
It now falls to determine, if possible, whether those amounts have included payments for taken annual leave and leave loading. In his calculations Mr Jones has adopted leave loading on the basis of 14% over five weeks which he says is the same as 17.5% over the four weeks based on accountant’s advice[37]. There are notations of 14% throughout the Wages Book. For present purposes I will check the figures based on 14%.
Wages Book – Weeks Ending 27 September 2011, 4, 11 & 18 October 2011 (leave from Monday 26 September 2011 to and including Friday 14 October 2011)
[37] 4/5ths of 17.5 = 14;
According to the Wages Book the plaintiff’s rate was $19.42 per hour or $737.96 gross ($147.59 per day) for a 38 hour week. This was her rate of pay since commencing full time with the defendant. Her rate increased just prior to these holidays in the week ending 20 September 2011 to $21.12 per hour or $802.40 gross ($160.48 per day)[38]. In that week she was paid other amounts of back pay so that her total gross was $942.19 less $166 tax netting $776.19 that was paid into the plaintiff’s account on 21 September 2011. If there had been no back pay the gross amount would have been $802.40 plus $7.64 allowance totalling $810.04.
[38] To Level 1.4 Nurses Award; the Wages Book is consistent with a letter from Mr Jones to Ms Taylor dated 25 September 2012 – exhibit “CT-A” affidavit of Ms Taylor;
The calculations for the week ending Tuesday 27 September 2011 are as follows:
14% of $160.48 (daily pay) = $22.4672
Add $22.4672 loading to $160.48 = $182.9472 per day
Two days with loading (26 & 27th) = $365.8944
Three days of base rate (21, 22 & 23rd) (3 x $160.48) = $481.44
Five day week’s gross pay ($481.44 + $365.8944) = $847.3344
Add allowances of $7.64 to $847.3344 = $854.9744. The gross amount recorded in the Wages Book is $971.14 i.e. $116.1656 more. It appears there was some back pay accounting for some of the difference. Also, the loading was calculated at $26.12 per day for each of the two days it applied instead of $22.4672. It is not known how this was arrived at. It does not even correspond to 17.5 % loading of $28.084 per day.
The Wages Book deducts tax of $176 from $971.14 leaving a net figure in the Wages Book of $795.14. This was credited to the plaintiff’s account on 29 September 2011 included with the next two weeks.
The calculations for the weeks ending Tuesdays 4 & 11 October 2011 are as follows:
14% of $160.48 (daily pay) = $22.4672
Add $22.4672 loading to $160.48 = $182.9472 per day
Five days (28, 29, 30 Sep., 3, 4 Oct) gross with loading = $914.736 (week ending 4th)
Five days (5,6,7,10,11 Oct) gross with loading = $914.736 (week ending 11th)
Add allowances of $7.64 to $914.736 = $922.376. The gross amount recorded in the Wages Book is $988.77 for both weeks i.e. $66.394 more. Again, there is some back pay included. The Wages Book deducts tax of $182 from $988.77 leaving a net figure in the Wages Book of $806.77 for both weeks. These two amounts together with the $795.14 for the week ending 27 September were credited to the plaintiff’s account in one amount of $2408.68 on 29 September 2011.
The calculations for the week ending Tuesday 18 October 2011 are as follows:
14% of $160.48 (daily pay) = $22.4672
Add $22.4672 loading to $160.48 = $182.9472 per day
Three days with loading (12, 13, 14 Oct) = $548.8416
Two days of base rate (17 & 18 Oct) (2 x $160.48) = $320.96
Five days (12, 13, 14, 17 & 18th) gross pay ($320.96 + $548.8416) = $869.8016
Add allowances of $7.64 to $869.8016 = $877.4416. The gross amount recorded in the Wages Book is $936.51 i.e. $59.0684 more. Again there appears there to be back pay accounting for some of the difference. Also, the loading was calculated at $26.12 per day for each of the three days it applied instead of $22.4672. It is not known how this was arrived at. It does not even correspond to 17.5 % loading of $28.084 per day.
The Wages Book deducts tax of $164 from $936.51 leaving a net figure in the Wages Book of $772.51. This was credited to the plaintiff’s account on 20 October 2011.
In some cases the entries in the Wages Book are difficult to follow and are not satisfactory in a number of respects. Employers have a duty to keep proper records: see sections 535 & 536 FWA and the Fair Work Regulations 2009[39]. For example, records must be legible (reg 3.31) and an employer can only alter a record in accordance with regulation 3.44. However, the Wages Book should not be rejected in its entirety.
[39] In Division 3 “Employer obligations in relation to employee records and pay slips” in Part 3-6 “Other Rights and Responsibilities”;
Unfortunately, the plaintiff’s taxation records, for example, her Taxation Notice of Assessment or Statement of Earnings for the financial year ended 30 June 2012 are not in evidence so as to verify that total tax actually deducted in that year accords with the tally in the Wages Book. However, one payslip exhibited to Mr Jones affidavit[40] indicates gross wages for the week 23 to 29 March 2011 of $737.96 less $100 tax with a net of $637.96. These figures accord with the handwritten entries in the Wages Book signed off by the plaintiff in the column “Employee’s signature”[41]. That signature is similar if not the same as the signature on the plaintiff’s affidavit. Bearing in mind the plaintiff bears the onus of proof, looking at the overall pattern in the Wages Book, I accept on balance that the weekly tax deducted as shown in the Wages Book is reasonable.
[40] Exhibit “F”; that payslip was criticized by the plaintiff e.g. it showed “annual leave” as “0” whereas she would have accrued some hours of leave by then; however, in my view that payslip only deals with what was paid in that week which was 38 hours “Ordinary” hours and not any component for “Annual Leave”; while pays slips must include “Allowances” (reg 3.46 (1)(g) FW Regulations) it appears from the Wages Book that no allowances were paid at that time; superannuation contributions are not stated in the pay slip (reg 3.46(5)); I note that the Wages Book does not start recording this until week ending 5 July 2011; I note the payslip does not show the defendant’s ABN – a requirement from 1 January 2010 (reg 3.46 (1)(h));
[41] It is the last signature in that column of the Wages Book; there are no signatures in the following weeks;
Based on the available evidence I am satisfied on balance that the plaintiff has been paid annual leave and loading for the period Monday 26 September 2011 to and including Friday 14 October 2011.
Wages Book – Weeks Ending 24 & 31 January 2012 (leave on Wednesday
25 January 2012, Friday 27, Monday 30 & Tuesday 31 January 2012)The plaintiff’s rate during this period was $23.64 per hour (Level 1.8 Nurses Award) making a base rate of $898.50 gross ($179.70 per day) for a 38 hour week. This is seen in entries for the previous eight weeks ending 29 November 2011 to 17 January 2012 and subsequent weeks ending 7 February 2012 until the employment ceased[42]. After adding $7.64 for allowances and deducting tax, the net amounts of $753.14 were credited to the plaintiff’s account.
[42] With two exceptions for weeks ending 7 & 14 February 2012 where she was credited $758.14 net – the Wages Book notes that she was overpaid $5 for those two weeks which is consistent with the overall pattern;
However, a greater amount of $785.46 was credited to the plaintiff’s account for the weeks ending 24 & 31 January 2012. Leave loading has been calculated at 14% for two days in each of those weeks. The calculation is as follows:
14% of $179.70 (daily pay) = $25.158
Add $25.158 loading to $179.70 = $204.858 per day
Two days with loading (paid for in week ending 24th) = $409.716
Two days with loading (paid for in week ending 31st) = $409.716
Three days of base rate (18, 19, 20th) (3 x $179.70) = $539.10 (week ending 24th)
Three days of base rate (26, 30, 31st) (3 x $179.70) = $539.10 (week ending 31st)
Five days for both weeks gross pay ($539.10 + $409.716) = $948.816
Add allowances of $7.64 to $948.816 = $956.456. This is recorded in the Wages Book rounded to $956.46 less tax of $171 leaving a net figure in the Wages Book of $785.46. This was credited to the plaintiff’s account on 26 January 2012.
The same applies for the week ending 31 January 2012 except that one day paid at the base rate of $179.70 was in respect of 26 January 2012 (a public holiday). I accept on balance that the plaintiff has been paid annual leave and loading for 25, 27, 30 & 31 January 2012.
Wages Book – Weeks Ending 19, 26 June & 3, 10 July 2012 (leave from Friday 15 June to and including Friday 6 July 2012)
Again, according to the Wages Book the plaintiff’s rate was $23.64 per hour making it $898.50 gross ($179.70 per day) for a 38 hour week. The Wages Book records $898.50 gross for each of the weeks ending after the last lot of holidays in January 2012 and after these holidays from the week ending 17 July 2012 to cessation of employment. Again, after adding $7.64 allowance less tax of $153, the net figures for the weeks prior to these holidays was $ 753.14 which were paid into the plaintiff’s bank account. After these holidays, tax deducted was $145 per week leaving net figures of $761.14 which were paid into the plaintiff’s account. I note that according to the Wages Book office manager Ms Blay was predominantly on sick leave for the weeks ending 14, 21 & 28 August 2012 which might explain, in part at least, why these entries are in different handwriting.
However, greater net amounts of $813.89, $848.41, $857.41 & $810.61 recorded in the Wages Book for the weeks ending 19, 26 June & 3, 10 July 2012 were credited to the plaintiff’s account 20, 28 June & 4, 12 July 2012 respectively. Having regard to the figures, leave loading has been calculated although the figures differ slightly from mine.
The calculations for the week ending Tuesday 19 June 2012 are as follows:
14% of $179.70 (daily pay) = $25.158
Add $25.158 loading to $179.70 = $204.858 per day
Three days with loading (15, 18 & 19th) = $614.574
Two days of base rate (13 & 14th) (2 x $179.70) = $359.40
Five day’s gross pay ($359.40 + $614.574) = $973.974 (week ending 19th)
Add allowances of $7.64 to $973.974 = $981.614. The gross amount recorded in the Wages Book is $993.89 i.e. $12.276 more. The Wages Book deducts tax of $180 from $993.89 leaving net figure in the Wages Book of $813.89. This was credited to the plaintiff’s account on 20 June 2012.
The anomaly appears to be in the calculation of the leave loading. The Wages Book arrives at a figure of $208.95 per day with a total loading over three days of $87.75 i.e. a loading $29.25 per day. It is unclear how this figure was derived. It doesn’t even correspond to 17.5 % calculation of $31.4475 per day. However, given that the plaintiff was paid more than my figure, I find on balance that she has been paid annual leave and loading for Friday 15, Monday 18 and Tuesday 19 June 2012.
The calculations for the weeks ending Tuesday 26 June & 3 July 2012 are as follows:
14% of $179.70 (daily pay) = $25.158
Add $25.158 loading to $179.70 = $204.858 per day
Five days with loading = $1024.29
Add allowances of $7.64 to $1024.29 = $1031.93. The gross amount recorded in the Wages Book for both weeks is $1052.41 i.e. $20.48 more. The Wages Book deducts tax of $204 from $1052.41 leaving a net figure in the Wages Book of $848.41 for the week ending 26 June. For the week ending 3 July tax deducted was $195 leaving a net figure in the Wages Book of $857.41. These amounts were credited to the plaintiff’s account on 26 June & 4 July 2012 respectively.
Again, compared with my calculations, an anomaly appears in the Wages Book where there is $208.95 per day with a daily loading of $29.25 per day. For the same reasons as above, I find on balance that the plaintiff has been paid annual leave and loading for five days from Wednesday 20 June to Tuesday 26 June and from Wednesday
27 June to Tuesday 3 July 2012.
The calculations for the week ending Tuesday 10 July 2012 are as follows:
14% of $179.70 (daily pay) = $25.158
Add $25.158 loading to $179.70 = $204.858 per day
Three days with loading = $614.574
Two days of base rate (2 x $179.70) = $359.40
Five day’s gross pay ($359.40 + $614.574) = $973.974
Add allowances of $7.64 to $973.974 = $981.614. The gross amount recorded in the Wages Book is $981.61. The Wages Book deducts tax of $171 from $981.61 leaving a net figure in the Wages Book of $810.61 for the week ending 10 July. This amount was credited to the plaintiff’s account on 12 July 2012. This calculation aligns with my calculation. I accept on balance that the plaintiff has been paid annual leave and loading for 4, 5 & 6 July 2012.
Wages Book – Week Ending 8 March 2011 (leave Thursday 3 & Friday 4 March 2011)
This period was left to last because the plaintiff has not provided bank statements for this period to correlate the figures as with the other periods.
The Wages Book shows her hourly rate as being $19.42 (Level 1.2 Nurses Award) or $737.62 ($147.592 per day) for a 38 hour week. In this week the Wages Book shows a gross wage of $789.62 i.e. $52 more. This included 1.2 hours of overtime. Also recorded was annual leave loading for two days of leave expressed as 15.2 hours (7.6 x 2). No allowances were recorded as having been paid during this period.
The calculations for the week ending 8 March 2011 are as follows:
14% of $147.592 (daily pay) = $20.66288
Add $20.66288 loading to $147.592 = $168.25488 per day
Two days (3 & 4th) with loading = $336.50976
Three days of base rate (2, 7 & 8th) (3 x $147.592) = $442.776
Five day’s gross pay ($442.776 + $336.50976) = $779.28576
The gross amount recorded in the Wages Book is $789.62 which included 1.5 hours overtime. By clause 28.1(a)(i) Nurses Award 2010, overtime is paid at 1.5 the base rate for the first two hours i.e. $19.42 x 1.5 x 1.2 hours = $34.956. The Wages Book deducts tax of $119 leaving a net figure in the Wages Book of $670.62 for the week ending 8 March 2011.
After taking off the overtime of $34.956 the gross is $754.664 which is $24.62176 less than my figure of $779.28576 based on a loading calculation of 14%.
The plaintiff has not provided her bank statement for this period. However, given my conclusions in respect of the periods in which those figures were checked against the bank statements and having regard to the overall pattern, on balance I find that, apart from the shortfall of $24.62176, the plaintiff was paid annual leave and loading for the 3 & 4 March 2011.
Loading Calculation - 14% as opposed to 17.5%
Annexure “A” to this judgement is a comparative calculation. For the 37 days of taken leave referred to above, the end result is that the plaintiff would have been better off by $63.14 if the loadings had been calculated according to the award. As all calculations so far were based on 14%, I will include this amount.
Conclusion
The plaintiff bears the onus of proof in establishing on the balance of probabilities that she has 23.31 days of untaken accrued leave for which she has not been paid. The main thrust of her case was the document contained in Exhibit “C” to her affidavit. For reasons given, she has failed to discharge that onus. I am satisfied on balance that she has been paid for 37 out of the 39.31 days of annual leave at her applicable base rate as well as the loading for those days.
Therefore, there is 2.31 days (or 17.556 hours[43]) accrued annual leave for which she has not been paid. Her base rate at the time of termination was $23.64 per hour. This comes to $415.02384. Add 17.5% loading of $72.629172 comes to $487.65.
[43] 7.6 hours per day multiplied by 2.31 days (based on a 38 hour five day week);
I also accept that the plaintiff is owed $448.50 which is part of the last week’s wages. While the Wages Book records a net amount of $761.14 for the week ending 7 August 2012, no such payment was in fact credited to her account within the usual day or two. The net amount of $761.14 in the previous week ending 31 July 2012 was credited on 2 August 2012 and the net amount of $761.14 in the following week ending 14 August 2012 was credited 15 August 2012. Subsequently, the defendant paid $450 by $150 instalments to reduce the amount owing.
The total principal amount owing therefore is $1023.91 ($487.65 + $448.50 + $24.62176 [see para [75] above] + $63.14 [see para [76] above]). Interest calculated on the Queensland Courts interest calculator[44] on $1023.91 from 15 August 2012 to
3 September 2013 comes to $95.83.
[44] Adopting the same parameters in the interest calculation by the plaintiff based on the original claim;
I give judgment for the plaintiff in the sum of $1119.74 ($1023.91 + $95.83).
I will hear the parties as to costs.
Annexure A
Comparative Table of Loading Calculations – 14% and 17.5%
Table 1
Holiday period Daily Rate 14% loading per day 17.5% loading per day 1 3 & 4 March 2011 $147.592 $20.66288 $25.8286 2 26 Sept – 14 Oct 2011 $160.48 $22.4672 $28.084 3 25, 27, 30, 31 Jan 2012 $179.70 $25.158 $31.4475 4 15 June – 6 July 2012 $179.70 $25.158 $31.4475 Method
For the 14% calculation all 37 days are included (as per Mr Jones’ method)
For the 17.5% calculation, the first 20 days (4 weeks) are included, the next 5 days (the fifth week in the first year) is not included, followed by the remaining 12 days which are included.
Table 2 (14 % Loading calculations)
Holiday period Days taken 14% loading per day Amount of loading for each period 1 3 & 4 March 2011 2 $20.66288 $ 41.3257 2 26 Sept – 14 Oct 2011 15 $22.4672 $337.008 3 25, 27, 30, 31 Jan 2012 4 $25.158 $100.632 4 15 June – 6 July 2012 16 $25.158 $402.528 TOTAL 37 days TOTAL $881.4937 Table 3 (17.5% Loading calculations noting that loading only applies to the first four weeks (20 days) of annual leave per year under the Nurses Award 2010)
Holiday period Days taken 17.5% loading per day Amount of loading for each period 1 3 & 4 March 2011 2 $25.8286 $ 51.6572 2 26 Sept – 14 Oct 2011 15 $28.084 $421.26 3 25, 27, 30 Jan 2012 3 (20 days) $31.4475 $ 94.3425 31 Jan 2012 1 $ nil 4 15, 18, 19, 20 June 2012 4 (5 days ie 5th week) $ nil 21 June – 6 July 2012 12 $31.4475 $377.37 TOTAL 37 days TOTAL $944.6297 The 17.5% calculation is more favourable to the plaintiff i.e. $63.14 more.
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