HAYTER v Hyde

[2019] FCCA 1396

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAYTER v HYDE [2019] FCCA 1396

Catchwords:
INDUSTRIAL LAW – Small claims – whether applicant entitled to instalments of superannuation while on workcare – entitlement to payment under Level B6 classification of Hair and Beauty Award (2010) – relief granted.

Legislation:

Fair Work Act 2009 (Cth), s.548

Applicant: HAYLEY HAYTER

Respondent: NYSSA JAYNE HAYTER

File Number: MLG 3435 of 2018

Judgment of: Judge A Kelly

Hearing date: 6 May 2019

Date of Last Submission: 6 May 2019

Orders Pronounced: 6 May 2019

Delivered at: Melbourne

Delivered on: 23 May 2019

REPRESENTATION

The Applicant: In Person

The Respondent: In Person

ORDERS

1. Liberty for the applicant to apply in the event that the claim for superannuation for the period February – March 2017 for the sum of $213.17 has not been credited to her Retail Employees Superannuation Trust account.

2. The respondent pay to the applicant’s Retail Employees Superannuation Trust account the sum of $1,817 for non-payment of superannuation for the financial year ending 30 June 2018.

3. The applicant’s claim for underpayment of wages for the period July – August 2017 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3435 of 2018

HAYLEY HAYTER

Applicant

And

NYSSA JANE HYDE

Respondent

REASONS FOR JUDGMENT

(Revised from Ex Tempore Reasons)[1]

[1]             Revision of ex tempore judgment from transcript provided on 23 May 2019.

1. By an application filed on 14 November 2018, the applicant seeks relief against the respondent employer for the alleged underpayment of wages and superannuation.  The claims for relief sought in this court were brought pursuant to the small claims procedures provided under the Fair Work Act 2009 (Cth) (Act). 

2. Division 3 of Pt 4-1 in Ch 4 of the Act provides a small claims procedure and prescribes the circumstances in which a proceeding may be dealt with as a small claim: s 548(1). By her application, the applicant elected for her proceeding to be dealt with under the small claims procedures in accordance with Ch 4 of the Act.

3. By force of sub-s 548(3), in the conduct of a small claims proceeding, the court is not bound by the rules of evidence or procedure.  Moreover, it is entitled to act in an informal manner and without undue regard to legal forms and technicalities.

4. The applicant’s claims were grounded upon alleged contraventions of the Hair and Beauty Industry Award 2010 (Award) being a Modern Award within the meaning of the Act.

5. The applicant contended that she was a casual employee within the classification provided by cl 16 of the Award. 

6. At all times the parties have been self-represented.  On 4 March 2019, the application was listed in the small claims list.  On that date, a number of orders were made, designed to provide greater clarity as to the actual claims which were being made, the evidence on which they were based and the precise manner in which the applicant calculated her claims for relief.  Those orders were also made because it was readily apparent that the respondent was not then ready to present her response to the claims. 

7. While the matter was adjourned for further hearing on 6 May 2019, the parties filed a number of further documents, which I have considered.  Each of the parties is to be congratulated in the careful manner in which they prepared that documentation. 

8. The applicant, who holds a Diploma in Beauty Therapy, worked for the respondent from 16 February 2017 to 11 September 2018.  In that period, the applicant lodged a claim for a workplace injury sustained on 26 July 2017, which claim was accepted on 4 October 2017.

9. On Friday, 11 August 2017, the respondent’s father met with the applicant, advised her of her performance review, and wrote a letter recording the results of that review.  In the course of her employment, the applicant last worked for the respondent on 15 August 2017 and called in sick on 18 August 2017.  On 21 August 2017, the applicant’s obstetrician gave a certificate stating that the applicant could no longer perform work in spray-tanning.

10. The applicant, who was pregnant during part of the period of her employment, was due to deliver a child on 18 February 2018. 

11. On 11 September 2018, the respondent sent an email stating that the applicant’s job could not be held open any further by reason that it had been 52 weeks since the applicant had attended her workplace and had not advised of a return to work plan. 

12. Against that background, the applicant pursued a number of claims.  At the hearing on 4 March 2019, the parties announced that the last of those claims had been resolved and was no longer pressed. 

13. At the hearing on 6 May 2019, endeavours were made to confirm each of the documents on which the parties relied, and an explanation was provided by them in relation to each of their claims and the response which was made in relation to each respective claim. 

14. In relation to the first claim (superannuation), it emerged that on the day preceding the hearing, that is, Sunday, 5 May 2019, the respondent had made a payment to the applicant’s REST superannuation account for a sum very nearly approximating the amount of the first claim, being for a sum of $2,017.20.  The amount being claimed was for non-payment of superannuation for the period February-March 2017.  Accordingly, whilst it was clear that the first claim had not been paid until that date, it was accepted that the respondent had paid an amount sufficient to meet that claim on the day prior to the hearing.

15. The respondent produced an email using her email phone, which the applicant accepted as indicating that this first claim had been paid.  I will reserve liberty to the applicant to apply in the event that it should occur that this amount has not, in fact, been credited to her account.

16. The second claim is of an entirely different nature, and involves a sum of $1,837.99 and relates to the non-payment of superannuation in the financial year ended 30 June 2018.  Each of the parties made careful submissions respecting the nature of the claim.  It was clear from the outset that the respondent does not dispute the amount of the calculation, save for a difference of some $20 (which was based upon the respondent’s calculations as contained in a document which she produced to the Court).  The basis on which this claim is advanced turns on the proper construction of clause 24.5 of the Award. 

17. Clause 24 reads:

    24.5 Absence from work

    Subject to the governing rules of the relevant superannuation fund, the employer must also make the superannuation contributions provided for in clause 24.2 and pay the amount authorised under clauses 24.3(a) or (b):

    (a)     Paid leave – …

    (b) Work-related illness or injury – for the period of absence from work (subject to a maximum of 52 weeks) of the employee due to work related injury or work related illness, provided that:

    (i) the employee is receiving workers compensation payments or is receiving regular payments directly from the employer in accordance with statutory requirements;  and

    (ii)     the employee remains employed by the employer.

18. The only issue separating the parties concerned the proper construction of cl 24.  In particular, there was no issue that, at the relevant time, the applicant was receiving workers compensation payments, which answered the requirement of sub-par 24.5(b)(i).

19. As the respondent quite candidly put it to me, the only issue was whether the applicant remained employed by the respondent.  The submission as it was put entailed the proposition that the applicant had not returned to work, but remained on workers compensation, and therefore did not “remain employed by the employer”.

20. I reject that submission.  The terms of an Award are to be construed as to honest businessmen or women would understand those terms.  They are to be given a fair meaning.  I have no doubt that the second condition of sub-par 24.5(b)(ii) was met.

21. In the result, I find that the second claim is made out.  I will accept in favour of the respondent that her calculation means that some $24 by way of deduction should be allowed in her favour.  Accordingly, there will be an award on the second claim in the sum of $1,817. 

22. The third and final claim for underpayment of wages is for a sum of $481.88, which relates to the applicant’s employment in the period July-August 2017. 

23. The parties’ evidence in relation to this, and their submissions, demonstrated that in some significant respects, their claims and counter-claims passed like ships in the night.  The parties were agreed that the applicant was entitled to remuneration in accordance with cl 16 of the Award.  Clause 16 reads:

    16.1 All employees covered by this award must be classified according to the structure set out in Schedule B.  Employers must advise their employees in writing of their classification and of any changes to their classification.

    16.2 The classification by the employer must be according to the skill level or levels required to be exercised by the employee in order to carry out the “principal functions of the employment as determined by the employer” (emphasis added).

24. The parties were agreed that the relevant classifications under Sched B of the Award were as follows:

    Schedule B – Classifications

    B.1 …

    B.2 Hair and beauty employee level 2 means: 

    (a)     a make-up artist who holds a Certificate II in makeup services (or equivalent);

    (b)     a nail technician who holds a Certificate II in nail technology (or equivalent);  or

    (c)     an unqualified beautician or cosmetologist;

    B.3 – B.5 …

    B.6 Hair and beauty employee level 6 means a beauty therapist who holds a diploma in beauty therapy (or equivalent).

25. The parties were not in any disagreement that the applicant held the requisite qualifications to meet that of a person falling within classification B.6, hair and beauty employee level six or equivalent. 

26. Nor, after some level of apparent confusion, was there any doubt that the applicant had been engaged in a management role.  A number of documents were identified by the applicant which put it beyond argument that the respondent had offered, and the applicant accepted, management responsibilities in her employment.  To her credit, the applicant further accepted that although on one view of some documents the respondents had offered her a management role from March 2017, in fact she did not contend that she had taken on such responsibilities until 3 July 2017. 

27. However, the question of management responsibility was not to the point.  It was clear from the parties’ submissions, including the evidence which was given by the applicant in an honest and forthright manner, that she had been paid her management allowance at all times. 

28. The relevant question was whether the applicant had been engaged in the classification B.6 to carry out the principal functions of employment in that classification. 

29. The classification makes clear that the person is then to perform the principal function of a beauty therapist.  As stated above, there was no issue that the applicant held that qualification. 

30. However, the evidence is compelling, in my opinion, that the applicant was not employed in that principal function but worked as a manager.  As the applicant agreed, she had at best performed some 1.5 hours in a total of over 500 hours work which at best was a level 3 classification.  It follows, in my opinion, that the third and final claim, being for a sum of $481, is not made out.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Associate: 

Date:  24 May 2019