Ianni v Platinum eStore Pty Limited
[2022] FedCFamC2G 611
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ianni v Platinum eStore Pty Limited [2022] FedCFamC2G 611
File number(s): SYG 2935 of 2020 Judgment of: JUDGE HUMPHREYS Date of judgment: 4 August 2022 Catchwords: INDUSTRIAL LAW – General Retail Industry Award 2010 – underpayment – unauthorised deductions – failure to provide payslip in time – misrepresentation of workplace rights – serious contraventions pursuant to s 557A of the FW Act – declaration for contraventions – orders for compensation and interest – costs. Legislation: Fair Work Act 2009 (Cth) ss 44, 45, 90, 117, 323, 324, 345, 539, 546, 557, 557A
General Retail Industry Award 2010
Division: Division 2 General Federal Law Number of paragraphs: 88 Date of last submission/s: 21 July 2022 Date of hearing: 11-12 July 2022 Place: Parramatta Counsel for the Applicants: Mr Kumar Counsel for the Respondents: In Person ORDERS
SYG 2935 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ROCCO IANNI
First Applicant
ISABELLA IANNI
Second Applicant
MADELEINE SNOXALL
Third Applicant
AND: PLATINUM ESTORE PTY LIMITED (ACN 168 825 321)
First Respondent
AZADEH ASHRAFINIA
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
4 AUGUST 2022
THE COURT ORDERS THAT:
1.Pursuant to s 141 of the Federal Circuit and Family Court of Australia Act (Cth) (“FCFCoA Act”) or s 545 of the Fair Work Act 2009 (Cth) (“the Act”) a declaration be made that the First Respondent contravened s 542 of the Act in that they:
(a)In relation to the First Applicant:
(i)Failed to pay accrued annual leave and annual leave loading contrary to s 90 of the Act;
(ii)Failed to pay termination pay contrary to s 117 of the Act;
(iii)Failed to issue payments (i) and (ii) within 7 days of employment termination contrary to cl 18.4, 28 and 37 of the General Retail Industry Award 2010 (“the Award”) and contravening s 45 of the Act;
(iv)Failed to pay the full amount for performance worked between 27 January 2020 to 9 February 2020 contrary to s 323 of the Act;
(v)Made unauthorised deductions contrary to s 324(1) of the Act;
(vi)Failed to issue a payslip within one day of making a payment contrary to s 536 of the Act.
(b)In relation to the Second Applicant:
(i)Failed to pay accrued annual leave and annual leave loading contrary to s 90 of the Act;
(ii)Failed to issue payments (i) and (ii) within 7 days of employment termination contrary to cl 18.4, 28 and 37 of the Award and contravening s 45 of the Act;
(iii)Failed to pay casual loading on hours worked between 14 January 2019 and 25 February 2019 contrary to cl 11 of the Award and contravening s 45 of the Act;
(iv)Failed to pay the full amount for performance worked between 27 January 2020 to 9 February 2020 contrary to s 323 of the Act;
(v)Made unauthorised deductions contrary to s 324(1) of the Act;
(vi)Failed to issue a payslip within one day of making a payment contrary to s 536 of the Act.
(c)In relation to the Third Applicant:
(i)Failed to pay accrued annual leave and annual leave loading contrary to s 90 of the Act;
(ii)Failed to issue payments (i) and (ii) within 7 days of employment termination contrary to cl 18.4, 28 and 37 of the Award and contravening s 45 of the Act;
(iii)Failed to issue a payslip within one day of making a payment contrary to s 536 of the Act.
2.Pursuant to s 141 of the Federal Circuit and Family Court of Australia Act (Cth) (“FCFCoA Act”) or s 545 of the Fair Work Act 2009 (Cth) (“the Act”) a declaration be made that the Second Respondent contravened s 542 of the Act, in that they were involved in the First Respondent’s contravention declared in order 1, within the meaning of s 550 of the Act.
3.The First and Second Respondent make good the underpayments to the First Applicant in respect of contraventions declared in orders 1 and 2, being an amount of $3,634.39, pursuant to s 545 of the Act.
4.
The First and Second Respondent make good the underpayments and deductions to the Second Applicant in respect of contraventions declared in orders 1 and 2, pursuant to
s 545 of the Act, as follows:
(a)$377.58 for annual leave loading;
(b)An amount agreed between the parties for unauthorised deductions, including interest.
5.The First and Second Respondent make good the underpayments to the Third Applicant in respect of contraventions declared in orders 1 and 2, being an amount of $220.21, pursuant to s 545 of the Act.
6.The First and Second Respondents make payment of interest on the underpayments and deductions in orders 3, 4 and 5 pursuant to s 547 of the Act.
7.The Respondents are to pay the amounts that are owing within 28 days of the date of these orders.
8.The First and Second Applicant to pay pecuniary penalties in respect of contraventions declared in orders 1 and 2, to be determined, pursuant to ss 539(2), 546(1) and (3) of the Act.
9.The Applicant to file and serve any written submissions as to penalty, of no more than 10 pages, within 28 days.
10.The Respondents are to file and serve any written submission as to penalty, of no more than 10 pages, within 28 days of the filing of the Applicant’s submissions.
11.The Applicant to file and serve any written submissions as to costs, of no more than 10 pages, within 28 days.
12.The Respondents are to file and serve any written submission as to costs, of no more than 10 pages, within 28 days of the filing of the Applicant’s submissions.
13.The matter be listed for Penalty Hearing on a date to be fixed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicants are three persons who were employed by the first respondent (Platinum eStore Pty Limited (“Platinum”)) as retail sales assistants in a mobile phone accessories, retail and repair business. The first and second applicants are a brother and sister. The third applicant is unrelated to the first and second applicant. The second respondent is the sole shareholder and Director of Platinum. Ms Azadeh Ashrafinia was assisted in the business by her partner, Mr Barnard du Toit.
Each of the applicants allege various breaches and contraventions of the General Retail Industry Award 2010 (“the Award”) and the Fair Work Act 2009 (Cth) (“the Act”) by the first respondent and the second respondent on the basis of being an accessory to the breaches by the first respondent.
In return, the first respondent has cross claimed, alleging various overpayments to each of the applicants.
The trial of the matters was conducted over two days, being 11 and 12 July 2022. The first respondent was represented by the second respondent following leave being granted by the Court pursuant to rule 9.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2022 (Cth) (“the Rules”). The second respondent was unrepresented. Previous legal representatives had either withdrawn in accordance with the relevant rules or in the case of the last firm of solicitors, it was agreed they could not properly represent the respondents in the time frame available from when they were instructed until the trial. There is not criticism of any of the legal representatives in the manner in which they have assisted the respondents.
An adjournment application by the first and second respondents was refused at the commencement of the trial, given that the matter had been set down for hearing for some considerable time and the failure of the respondents to comply with Court orders for the filing and serving of evidence and other matters in a timely fashion.
The matter proceeded on the evidence that had been filed. At the end of the trial, a tender of various documents by the first and second respondents that had not been served in accordance with Court orders was refused. Each of the first and second applicants were cross examined on these documents. The Court has also taken into account post-trial submissions filed by the parties.
BACKGROUND
As at the time of the events the subject of this litigation, Platinum ran two retail stores, the first at the Broadway shopping centre situated at the western end of the Sydney Central Business District, and the second at the MacArthur Square shopping centre in Campbelltown.
The stores were a kiosk arrangement, in that there were various locked cabinets, displaying items for sale, situated in an open area of the shopping centre. Customers were able to move freely in and around the various cabinets. There was no closed or restricted area or sales counter as such.
Persons employed by Platinum, at the beginning and end of their shifts, were required to logon and then logoff to an app called “Deputy”. The information recorded via Deputy then became the basis for timesheets and pay. If an employee’s shift corresponded with the opening time of the store, there was also a requirement to start a “point of sale” application. It was contested between the parties that it was not possible for sale to be recorded unless the point of sale application was open.
It was conceded by the respondents, that there was no formal employment contract in existence between the applicant’s and the respondent’s. Further, no formal statement of duties or general directions to employees was produced in evidence that clearly outlined the roles and responsibilities of employees in the conduct of their duties with Platinum. The lack of such formal documentation significantly prejudiced the capacity of the respondents to prove the assertions they sought to make against each of the applicant’s. Even in relation to the status of the employees, as either full-time, part-time or casual employees, was not certain. In this regard, the Court relied upon the information contained in the payslips provided to the applicant’s as determinative of the issue.
It was asserted by the respondents, that there was a geographical location tracking function within Deputy that allowed an administrator, such as Ms Ashrafina, to ascertain the location of an employee, down to an accuracy of 10 square meters, when they logged onto Deputy. It was also possible to ascertain the time the point of sale application was commenced and compare this with the time claimed by the employee that they arrived at and opened the store. Various assertions were made that the applicant’s had “gamed” the Deputy time sheet application by logging on at locations when they had not arrived at the store. For example, it was asserted that the first and second applicants had logged onto Deputy when the geographical tracking function indicated they were located at Central railway station, a considerable distance from the store location at the Broadway shopping centre.
It was further asserted that when this data was compared to the logon time of the point of sale application, this showed on many occasions the store was not open until much later than the time the store should have been opened, and was consistent with the time it would have taken for the applicants to have travelled from the location where they logged on with Deputy to the store, opened it and then started the point of sale application. These assertions formed the basis of a Cross Claim against the applicants that they had been overpaid.
CLAIM BY ROCCO IANNI, THE FIRST APPLICANT.
It is uncontested that Mr Ianni commenced employment with the first respondent as a retail sales assistant (casual) on or about 23 April 2018. Mr Ianni was subsequently engaged part-time and full-time until 9 February 2020.
In an Affidavit sworn 30 March 2021, Mr Ianni deposes that he was originally employed with Platinum at Broadway by a Mr Josh Dankers. After a few weeks, Mr Ianni was terminated by Mr Dankers. After a few days, Mr Ianni claims that Ms Ashrafinia rang him and asked him why he was not at work. Mr Ianni claims that Ms Ashrafinia told him he was still employed as Mr Dankers had resigned.
Mr Ianni states that he worked full-time as a store manager, replacing Mr Dankers, until February 2019, when he asked to work part-time so that he could continue studies at Ultimo TAFE. Mr Ianni continued to work part-time until February 2020. During his time of employment, Mr Ianni did not have a written contract or agreement with the first respondent.
Mr Ianni claims that his employment was terminated by Ms Ashrafinia on the evening of
9 February 2020. This followed Mr Ianni losing a master key for the kiosk. Mr Ianni claims that he told Ms Ashrifinia he wanted to be paid his leave and unpaid wages. On 10 February 2020, Mr Ianni sent the following SMS to Ms Ashrafina:
Just a reminder, myself and Isabella are awaiting our full payments for the last fortnight and the total accrued annual leave paid out in full. You have until 16th of February to do so. If not, further legal action will be taken. I have also emailed a digital copy of our final pay notice, same copy that I handed in today along with uniform.
On 13 February 2020, Mr Ianni sent the following SMS to Ms Ashrafina:
Why havent I been paid yet? You have three days according to the general retail award before I take this to fair work Australia.
I should have been paid in full for my worked hours and annual leave. Thanks.
Mr Ianni deposes that in late February 2020, as he had not been paid his accrued annual leave and leave loading, he filed an unfair dismissal application at the Fair Work Commission. Mr Ianni also approached the Fair Work Ombudsman.
Following conferences at the Fair Work Commission, an amount of $365.56 was deposited into Mr Ianni’s bank account by Platinum. Subsequently, Mr Ianni received a pay slip from Platinum for the period 27 January 2022 to 9 February 2020. On 9 June 2020, Mr Ianni received another deposit from Platinum in the sum of $1,563.05. A few days later, Mr Ianni received a further payslip from Platinum.
Mr Ianni states that he never agreed to any deductions from his wages and/or leave entitlements and never agreed to have the first payment of $365.56 deducted from the second payment on 9 June 2020. Mr Ianni also claims that he did not know he was entitled to be paid leave loading as he did not know that he could take paid leave until he was advised by this by Marrickville Legal Centre in late 2020.
In a further Affidavit sworn 18 May 21, Mr Ianni deposes that he experienced problems with the Deputy app. Mr Ianni attaches a screen shot of an SMS dated 18 August 2018 that indicates problems with logging on. These problems, however, were soon corrected.
Mr Ianni also attaches an Email sent to Platinum indicating that, as in his view, his employment was involuntarily terminated and that he was entitled to be paid under the relevant award a termination amount by 16 February 2020 or legal action would be taken. A similar notice was sent on behalf of Ms Ianni, but it notes she voluntarily terminated her employment on 9 February 2020 “due to feeling unsafe and insecure in the workplace.”
In written submissions filed on 27 June 2022, Counsel for the applicants described them as “young, inexperienced and unsophisticated workers”. The Court does not accept this description. Within a few days of ceasing work with the respondents, the applicants were confidently asserting workplace rights with a very detailed knowledge of the Award, legislation and remedies available to them. The Court does not accept the claims by the first and second applicants that they were not aware of their entitlements, rather they were at all times fully aware and sought to enforce them at a very early point in time. The Court, however, does not seek to extend this view to Ms Snoxall, the third applicant. Even prior to leaving Platinum, Mr Ianni was claiming he was underpaid in an SMS dated 17 January 2020.
The incident that led to the employment relationship ceasing between Mr and Ms Ianni and Platinum occurred on Sunday 9 February 2020. The first and second applicants were working together at the Broadway kiosk. A single key that was on a lanyard operated all the locks on the stock cabinets. It was a key that was specialist in nature and required a specialist locksmith to replace/rekey the locks.
Mr Ianni deposes that at about 4:40pm he noticed that the key on his red lanyard was missing. Mr Ianni states that he called store security who reviewed security CCTV footage and that there was a possible suspect, but they could not identify the person. That footage has not been produced or any evidence as to any contact with store security by Mr Ianni.
Mr Ianni deposes that he contacted Ms Arashafinia by telephone to report the loss. Mr Ianni claims that he was told he needed to keep the store open till 10:00pm and “work the sales as a deduction”. Mr Ianni states that he replied “So you’re going to make me pay for the Locksmith? The key was stolen, it’s not my liability to pay, its insurance issue”. Again, this evidence sits uneasily with the claim that Mr Ianni was a young, inexperienced and unsophisticated worker.
Mr Ianni deposes that he again spoke with store security who told him it would be a breach of the lease with the shopping centre to stay open past 6:00pm. As a result, Mr Ianni states that he closed the store at 6:00pm. Ms Ashrafinia and Mr du Toit arrived at around that time. They say it was before 6:00pm. Mr Ianni disagrees and says that their arrival was after.
Mr Ianni states that the following conversation took place;
Ms Ashrafinia: I told you to fucking stay open.
Mr Ianni:I talked to security and it’s against your lease to stay open I been trying to call you.
Ms Ashrafinia: I don’t want what happened last time when Josh and Josh’s sister stole from me.
Mr Ianni: So you’re calling me a thief, am I thief?
Mr du Toit: No you’re not.
Ms Ashrafinia: You’re a horrible worker and I should have got rid of you a long time ago.
Ms Ashrafinia to Ms Ianni: Bella, I need to know are you staying, or going?
Ms Ianni: After the way you treated my brother, I’m going.
Ms Ashrafinia: Get the fuck out of my store.
Ms Ianni then removed her work key and gave it to Ms Ashrafinia and said: We are going to Fair Work.
Ms Ashrafinia: Yeah go.
Ms Ashrafinia gives a different version of the conversation and provides some texts leading up to the conversation. In an SMS sent at 5:08pm she sated “Pls stay at the store until we get there. You are going to have to stay and guard the store until the locksmiths come at 10pm.” This is followed at 5:26pm with the statement to “Keep the store open and try to sell as much as possible. We’ll work it a deduction every fortnight so it is not in one go”.
Ms Ashrafina’s version of the conversation is as follows:
Ms Ashrafina: Rocco, I specifically asked you to keep the store open until we get here… It isn’t even 6 pm and the store is closed.
Mr Ianni:Legally you’re not allowed to stay open… If you don’t believe me go ask Security.
Ms Ashrafina: Security? Who asked you to speak to security about what you should do? How dare you tell me what I can or can’t do It’s not your place to tell me how to run my business. I gave instructions to keep the store open until I arrived because the master keys that are now lost and out there somewhere and whoever has it has access to all the cabinets in the store.
Ms Ianni: Don’t talk to him like that.
Ms Ashrafina: I am not going to have you guys gang up on me and try and sabotage this business… You need to think about whether or not you can follow your employer’s instructions.
Ms Ianni: Fine we’ll see you at Fair Work.
Mr Ianni: Yeah! Let’s go to Fair Work.
Based on the above conversations, the Court is satisfied that Ms Ianni abandoned her employment with Platinum on 9 February 2020. The question then arises as to whether Mr Ianni was terminated or abandoned his employment. On both versions of the conversation, there does not appear to be explicit words like “you’re fired”. On the applicant’s version of events, the words “Get the fuck out of my store” were used only after Ms Ianni stated she “was going”, that being she was leaving her employment.
On Mr Ianni’s version, the reference to Fair Work only arose after Ms Ianni raised that course of action and stated she was leaving. While the Court accepts that memories may differ, and the understanding of what was meant by words may differ between individuals, the Court cannot be satisfied, on the balance of probability, that the words used by Ms Ashrafinia were an unequivocal summary dismissal of Mr Ianni. The reference to leaving the store could be simply a direction to go now, but not a summary dismissal. What is clear is that Mr Ianni was concerned he might be asked to pay for the cost of changing the locks and disputed he was liable for that cost. In these circumstances the Court finds Mr Ianni abandoned his employment on 9 February 2020.
Ms Ashrafinia admits providing Mr Ianni with a payslip on 10 February 2020 in which she made various deductions for misreported hours. It is not claimed that these deductions were authorised or otherwise agreed to by Mr Ianni. That payslip showed Mr Ianni was in debt to Platinum in the sum of $478.72 due to misreported hours.
On 4 May 2020, Ms Ianni provided a further payslip based on all outstanding wages owed to Mr Ianni plus his annual leave entitlement. As a result Mr Ianni was paid $365.56. Ms Ashrafinia deposes a further payslip was sent on 1 June 2020 that included a deduction for resigning without notice. Other than the initial payment, only one further payment was made to Mr Ianni on 9 June 2020 of $1,563.05.
In the Statement of Claim it is submitted that the respondents breached cl 18.4 of the Award by failing to pay Mr Ianni, within 7 days of 9 February 2020, termination pay of 2 weeks together with annual leave entitlements, annual leave loading and any outstanding wages. This failure constitutes a contravention of s 45 of the Act. This failure also contravenes
s 44 of the Act.
It is further submitted that the failure to pay the wages and entitlements within 1 month of employment ceasing breached s 323 of the Act. It is further alleged that the respondents failed to provide relevant payslips within 1 day of paying Mr Ianni has contravened s 536(1) of the Act.
In terms of the deductions contained in the first payslip dated 10 February 2020 received by Mr Ianni, it is alleged the deduction of $2353.52 was not permitted as it was not authorised by Mr Ianni and did not conform with the matters set out in s 324(1)(a) – (d) of the Act.
Further the payslip dated 1 June 2020 purported to deduct an amount of $365.56 (being the amount paid to Mr Ianni on 5 May 2020) as ‘post tax deductions: wages paid”. A further amount of $576.00 was deducted as “post tax deductions Termination without Notice Average 1 weeks’ pay.” It was submitted there was no entitlement to make these deductions as they are not covered by s 324(1)(a)-(d) of the Act.
Mr Ianni claims the amount of $6,938.87 as follows:
Wages paid then deducted $365.56
Resignation without notice deducted $576.00
Misreported hours deducted $2353.52
Annual leave as per payslip 1 June 2020 $1090.11
Leave loading @17.5% $190.76
Two weeks termination pay (av over 2019/20) $1450.00
$6227.25
Plus interest @ 5.5% from
16 February to 8 Dec 2020 $911.62
Total $6398.87
First, the Court has already determined that Mr Ianni abandoned his employment on 9 February. Mr Ianni did so in circumstances where he did not give any notice. Pursuant to cl 37.1(d) of the Award, where an employee fails to give the notice period set out in Table 12, then the employer may deduct an amount equal to one week’s wages. It is not suggested that the respondents agreed to a period of notice less than that required. Thus, the provisions of
cl 37.1(d) of the Award do not apply. Further, the 2 weeks Termination Pay does not apply.
Given there had already been a payment of $365.56, the Court is satisfied that this cannot be added back to the amount claimed as still outstanding as this would be double dipping in terms of any pay and entitlements.
The next issue relates to the misreported hours pay deduction of $2,353.52. During the course of being cross-examined, it was put to Mr Ianni that on many occasions he “gamed” the Deputy app so as to logon for the purposes of his timesheet from locations other than at the store and therefore gained pay that he was not entitled to. In an amended Cross Claim, it was suggested that Mr Ianni was overpaid an amount of $11,796.70, being wages of $10,773.24 and superannuation of $1,023.46.
In cross examination, it was suggested to Mr Ianni that the geo-tracker function within Deputy indicated that he had logged on at various places, including at Central railway station, when he should have only logged on when he commenced his shift at the store within Broadway Shopping Centre. It was further put to Mr Ianni that the point of sale application indicated on many occasions that it was not logged-on until well after the time that he had logged on using the Deputy function. It was suggested to Mr Ianni that this was further evidence of the fact he logged-on when he was not physically at the store and thus not working. In each and every case put to him, Mr Ianni denied that he logged on from anywhere other than at his place of work. Mr Ianni claimed that there were various technical issues related to Deputy such that it was not accurate.
Mr Ianni further claimed that the point of sale application, on numerous occasions, failed to properly logon when he opened up the store in the mornings due to Internet connectivity issues. This would explain why there was a difference between when he logon on the Deputy application and the logon time in the point of sale application.
The Court has considerable difficulties in accepting the totality of Mr Ianni’s evidence. Mr Ianni’s complete denials that he had in any way sought an advantage by “gaming” the system, including by logging onto Deputy a few minutes earlier than when he arrived at the store, were difficult to accept. Mr Ianni admitted in cross-examination that he had “manually adjusted” his start time on a number of occasions but that this was to reflect the true situation when he had problems with Deputy. Mr du Toit gave evidence, that in his experience, the geo-tracker functionality within the Deputy application was accurate to 10m². Further, Mr du Toit had never experienced any Internet connectivity issues with the point of sale application. It was suggested to the Court by Mr Ianni that it was still possible to conduct sales with the point of sale application being off-line and these would be downloaded when connectivity was achieved. Mr du Toit gave evidence that a sale was not possible without the point of sale application working.
It was also suggested that on many occasions, while logged on with Deputy, Mr Ianni was absent from the kiosk and not on either rest breaks or a meal break as are allowed under the Award.
While the Cross Claim contained a detailed schedule of times and dates where it was said that Mr Ianni was overpaid due to gaming the system, the Court was not provided with the source documentation or any other evidence as to the functionality of the geo-tracking system within Deputy and its accuracy in terms of the location shown, notwithstanding Court orders made on numerous occasions for the provision of all documentation upon which the respondent’s relied.
The simple fact of the matter is that Ms Ashafrinia has failed to provide the necessary evidence to support the assertion she made that Mr Ianni was overpaid. While the Court has considerable suspicions as to the truthfulness of Mr Ianni, it cannot be satisfied to the requisite degree that the Cross Claim has been made out.
Accordingly, the Court is satisfied as to the following in respect of underpayments as to the wages and entitlements of Mr Ianni:
Misreported hours deducted $2353.52
Annual leave as per payslip 1 June 2020 $1090.11
Leave loading @17.5% $190.76
Total $3634.39
Interest is payable on this amount. The parties are to confer and agree on the precise amount of interest payable.
Given these findings, the Court is satisfied the following contraventions are made out in respect of the first respondent.
A. A breach of s 45 of the Act by failing to pay Mr Ianni within 7 days of his termination of employment his accrued wages including overtime, accrued annual leave, and annual leave loading.
B. A breach of s 44 of the Act by failing to pay accrued annual leave and annual leave loading to Mr Ianni.
C. A breach of s 323 of the Act By failing to pay wages, annual leave and overtime to Mr Ianni for the period 27 January 2020 to 9 February 2020 within one month of his termination of employment.
D. A breach of s 536(1) of the Act in not providing Mr Ianni with relevant payslips within one working day of paying him.
As a result of the above, the first respondent is liable for a pecuniary penalty under s 539(2) and s 546 of the Act.
The Court is also satisfied that Ms Ashrafinia, as the Director, Secretary and sole shareholder of the first respondent, by reason of having knowingly authorised and permitted the contraventions, she aided and abetted these contraventions and is also liable to a pecuniary penalty.
The applicants have further alleged that the respondents’ contraventions were “serious contraventions” pursuant to ss 557 and 557A of the Act, and thus subject to increased civil penalties. Section 557 of the Act sets out the circumstances where multiple contravention may be taken to constitute a single contravention. This includes that a person knowingly contravened the provision [s 557A(1)(a) of the Act] and that it was part of a systemic pattern of conduct relating to one or more persons [s 557A(1)(b) of the Act].
Section 557A(2) sets out a number of considerations in determining if the conduct was part of a systemic pattern of conduct. The Court is satisfied that while there have been multiple contraventions, as set out above and below, and that the contraventions may be described as a course of conduct rather than individual and a separate contraventions, it involves three employees only, in circumstances where there appears to have been a genuine dispute between the employer and the employees as regards entitlements and overpayments. The mere fact that the Court has found in favour of the employees in relation to the matters pleaded, does not of itself prove that the contraventions are serious. There are significant serious concerns regarding the conduct of the employees with regards to the accuracy of the time claimed they worked. The Court also notes s 557A(3) of the Act which excludes contraventions in relation to payslips from being a serious contravention. In all of the circumstances, the Court is not satisfied that the contraventions found amount to a serious contravention.
CLAIM BY MS ISABELLA IANNI, THE SECOND APPLICANT
Ms Ianni is the younger sister of the first applicant, Mr Rocco Ianni. It is not contested that Ms Ianni abandoned her employment on 9 February 2020. The Court does not accept the claim for the reasons set out above that Ms Ianni was forced to resign because of the conduct of the employer and thus dismissed pursuant to s 386 of the Act Mr Ianni’s evidence that Ms Ianni stated: “After the way you treated my brother, I’m going”. This conduct does not relate to her.
In the Statement of Claim, Ms Ianni first claims that she worked from 14 January 2019 until
9 February 2019 as a casual, but was not paid casual pay rates. Ms Ianni did not accrue annual leave, consistent with working part time, till after that date. A perusal of the payslips for that period clearly indicates Ms Ianni is shown and paid as a part-time employee. In the absence of evidence to the contrary, such as an employment contract, the Court is not satisfied that Ms Ianni’s employment status changed after the first month and that she was at all times employed as a part time employee. The Court accepts, however, Ms Ianni did not accrue annual leave during this period which was an entitlement she did not receive. Accordingly, the respondents will be required to calculate the amount of annual leave payable for this period and this should be paid to Ms Ianni.
The Court is satisfied that the respondents did not pay Ms Ianni her accrued annual leave, annual leave loading, wages and overtime within 7 days of her abandoning her employment and, as a result, is in breach of s 45 of the Act.
Further, by failing to pay wages, annual leave and overtime to Ms Ianni within one month of her abandoning her employment, the first respondent breached ss 323 and 44 of the Act. Further, the first respondent contravened s 536(1) of the Act as it did not provide Ms Ianni with relevant payslips within one working day of paying money to her.
The Court is also satisfied that Ms Ianni provided no written authority to the respondents to make any deductions (other than income tax) between the amount she was owed for wages and overtime to the period 27 January 2019 to 9 February 2020, and accrued annual leave of 123 hours (plus annual leave for the initial period of employment set out above).
The Court notes the unauthorised deductions claimed are an approximation. The Court will not make an order until and unless there is a precise amount either determined between the parties or the Court is required to make such a determination.
The Court is satisfied the respondents contravened the Act because of these actions and should pay a pecuniary penalty.
In the first Cross Claim, the respondent’s claim Ms Ianni was overpaid by falsely logging onto Deputy when she was not in fact working, gaming the system as discussed above. For the same reasons as discussed above, the Court is not satisfied that this Cross Claim is made out.
In an amended Cross Claim, the respondents claim that Ms Ianni firstly failed to account for a day’s takings on or about 25 July 2019 which amounted to $4,771.70. This occurred in circumstances where Ms Ianni was told to bring the takings from the Macarthur store to the Broadway store the following day. It was put to Ms Ianni in cross examination that she effectively stole that amount from the respondents. Ms Ianni denied that claim. The claim was not taken further by the respondents with little by way of evidence being provided. The Court is not satisfied this aspect of the Cross Claim is made out.
The second aspect of the Cross Claim relates to an allegation that, while working at the Broadway store, an amount of $600.00 went missing from the till. Ms Ianni claims that it was stolen by an unknown person. Ms Ianni reported the loss at approximately 7:00pm to Ms Ashrafinia. In cross examination, Ms Ianni stated that there was still money in the till and was unable to explain why a thief would only take some money from the till if they were intent on stealing. No contract of employment was produced by the respondents as to the responsibility of employees where money goes missing. While the Court is suspicious of Ms Ianni, it cannot be satisfied that she stole the money from the till. That aspect of the cross claim is not made out.
The third incident occurred on 31 October 2019. An amount of $200.00 went missing from the till. An investigation revealed an ex-employee’s log on details had been used to open the till. Ms Ianni denied that she had stolen the money. Again, while suspicious of Ms Ianni, the Court cannot be reasonably satisfied on the evidence relied upon by the respondents that Ms Ianni took the money from the till as claimed. The final aspect of the cross claim accordingly fails.
Accordingly, the Court orders that the parties are to confer and settle on an amount improperly deducted and calculate interest on that amount. The Court is satisfied that the following money is payable:
Unauthorised deductions To be determined
Annual Leave Loading $377.58.
CLAIM BY MADELINE SNOXALL, THE THIRD APPLICANT
The issues relating to Ms Snoxall are relatively contained and in many ways not in dispute. Ms Snoxall was employed by the first respondent during the period 8 April 2019 to 11 August 2019 as a Retail Sales Assistant at the Macarthur Shopping Centre at Campbelltown in South-West Sydney. Ms Snoxall claims that she was never given a written contract or any letter or document about her employment or conditions. Ms Snoxall acknowledges receiving pay sheets each fortnight. Ms Snoxall claims that she thought she was a casual employee working full-time hours and did not know that she could take paid time off, or be entitled to paid annual leave or holidays. Ms Snoxall claims that during her employment she took no time off as paid leave.
It is common ground that on 2 August 2019 Ms Snoxall resigned from her employment via a SMS message sent to the second respondent. The second respondent replied in an SMS that she needed two weeks’ notice and needed Ms Snoxall to work until 12 August 2019 as she been rostered until then. Ms Snoxall undertook that work. Ms Snoxall claims that she worked that period as she was concerned she would not receive her pay, due to her date of resignation, if she did not do so.
Attached to her Affidavit are the last four pay slips Ms Snoxall received from the first respondent. The payslip for the period 29 July 2019 to 11 August 2019, being her last payslip, shows an amount of annual leave accrued of 44.1185 hours. Ms Snoxall claims that she was not paid for this leave accrued until 12 January 2021. On 5 February 2021, Ms Snoxall received a payslip for the first respondent showing a payment of amount of $850.16 from the first respondent.
Ms Snoxall claims that within seven days of her resignation, she was entitled to be paid by the first respondent, pursuant to cl 18.4 of the Award, her accrued annual leave and leave loading. By failing to pay her annual leave within one month of the ending of her employment, Ms Snoxall alleges that the first respondent breached s 323 of the Act. By failing to pay accrued annual leave, and annual leave loading, Ms Snoxall alleges that the first respondent contravened provisions of the National Employment Standards as set out in ss 117 and 90(2) of the Act, and contravened s 44 of the Act. The Court is reasonably satisfied that these contraventions have been made out in respect of the first and second respondents and that they should pay a pecuniary penalty.
The third applicant complains that she was underpaid the following amount:
Annual Leave of 44.11 hours $849.99
Leave Loading @17.5% $148.74
Interest @5.5% from 19 August 2019 to
8 December 2020 $71.64
Total $1070.37
Noting that an amount of $850.16 has been paid, the total remaining as outstanding amounts to $220.21. Interest is payable on that amount.
The third applicant further claims that the response of the second respondent, that she needed two weeks’ notice, amounted to a misrepresentation as under cl 37.1(b) of the Award, as Ms Snoxall was only required to provide one week’s notice. Ms Snoxall claims the representation that she needed two weeks’ notice amounts to a false or misleading representation in contravention of s 345 of the Act.
In a Defence filed on 10 February 2021, the respondents claim that Ms Snoxall was paid the sum of $850.16 in full and final settlement of her claims and demands. Ms Snoxall denies that the amount paid was in any way full and final settlement of her claims. The Court notes no Deed of Release or Settlement has been produced in support of the full and final settlement claim by the respondents. In these circumstances, the Court is not satisfied this payment was a full and final settlement of the claim by Ms Snoxall.
In an Affidavit sworn by the second respondent on 29 June 2021, Ms Ashrifina claims that following the resignation of Ms Snoxall, she had the following conversation with her:
Ms Ashrifina: Could you stay for two weeks until I find a replacement?
Ms Snoxall:That’s fine Azzi, I would like to continue working with Platinum in the future. I would like to pick up some shifts during Christmas, some weekends and evening shifts.
Ms Ashrifina: That is fine.
Ms Ashrifina admits that she did not pay Ms Snoxall’s annual leave at the time of her resignation as she was of the view that Ms Snoxall would be returning to work. Throughout November 2019 to December 2019, Ms Ashrifina states that she attempted to call Ms Snoxall but was unable to get a hold of her to confirm any dates and times that she could work.
A screen shot of a text messages between Ms Ashrifina and Ms Snoxall confirms that Ms Snoxall stated the following in her resignation text: “I will miss working here, I highly value the experience and want to thank you for deciding to hire me. I’ll be more than happy to help out whenever it’s needed, given that I’m feeling 100% myself again, but right now I need to look after my health and need a part-time role.”
A request was made on 20 August 2019 to Ms Snoxall to bring her uniform back to the store as soon as possible. Ms Snoxall replied that her uniform was in the cabinet in a bag. Ms Ashrifina sent a further text message to Ms Snoxall on 2 December 2019 in the following terms: “Hi Maddy, how are you? I have heard you might bw [be] available for casual shifts? Is that right?” Ms Ashrifina deposes that no response was received to those text messages. The respondents claim that on 11 January 2021, when they realised that Ms Snoxall had not been paid her annual leave entitlement, it was paid.
The Court is reasonably satisfied that Ms Snoxall resigned from a part time position, as evidenced by her pay slips, on 2 August 2019. That resignation triggered a requirement of the first respondent that Ms Snoxall be paid her accrued annual leave and leave loading. It was admitted those amounts were not paid until February 2021, in breach of cl 18.4 of the Award and ss 44 and 323 of the Act.
The suggestion by Ms Ashrafina that she thought Ms Snoxall was still employed by Platinum is simply not credible. The resignation was unambiguous. Any future employment in relation to working shifts at Christmas or otherwise could only have been as a casual employee, not as a part time employee. The resignation triggered the requirement for payment of the outstanding leave and leave loading. Further the payment was not made until early 2021. The contraventions are made out
Ms Snoxall claims that the second respondent mislead her as to a requirement that she give 2 weeks’ notice and thus contravened s 345 of the Act. Following the resignation text from Ms Snoxall, Ms Ashrafina replied as follows:
I accept your resignation but I need 2 weeks’ notice. I need you to work till 12 August. I’ve already rostered you till then.
The Court accepts that the minimum notice required was one week. The text response was in the terms of “I need you to work as I have rostered you”. It was not a clear assertion that Ms Snoxall was required to give 2 weeks’ notice and that this was legally required. It was rather that for rostering purposes Ms Ashrafinia needed 2 weeks’ notice. In these circumstances, given the degree of reasonable satisfaction required in a contravention matter, the Court is not satisfied that the response by Ms Ashrafina was misleading, rather it was a request that could have been rejected. The contravention of s 345 of the Act is not made out.
In an amended Cross Claim filed on 24 December 2021, the respondents’ claim that Ms Snoxall was overpaid an amount of $1,328.88, consisting of wages of $1,209.02 and superannuation of $114.86, by falsely logging on and logging off at a time when she was not at her place of employment and thus claimed wages she was not entitled to. The respondents seek to have this amount paid or deducted from any underpaid wages or entitlements as per the principal claim.
While assertions were made in the Cross Claim, no matters in relation to logging onto Deputy when Ms Snoxall was not at the store, and thus being overpaid, were put to her in cross examination. There is some material in a bundle of documents attached to Ms Ashrafina’s Affidavit, but the majority of them consist of copies of pay slips together with some tables of pay. How and on what basis these tables were created has not been properly explained to the Court. Nor have the source documents these tables are based on been tendered. Based on the totality of the evidence, or lack thereof, in relation to the functionality of Deputy to accurately record the location of when a person logs on, the Court is not satisfied the Cross Claim is made out. That is, the Court cannot be satisfied Ms Snoxall was overpaid in relation to times when she was logged on but not at the kiosk.
In summary, the orders of the Court are as follows:
Set out here the orders above in relation to each applicant. See the orders set out in the Statement of claim
Costs
The issue of pecuniary penalties is adjourned to a date to be fixed. The applicants are to file any submissions in relation to penalty within 25 days of today’s date. The respondents are to file any submissions on penalty within 28 days of the filing of the applicant’s submissions. The Court will then fix a date for a penalty hearing.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 4 August 2022
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