Industry Pathways Pty v Edmonds
[2013] QCAT 669
•18 December 2013
| CITATION: | Industry Pathways Pty v Edmonds [2013] QCAT 669 |
| PARTIES: | Industry Pathways Pty Ltd (Applicant) |
| v | |
| Gai Lorraine Edmonds (Respondent) |
| APPLICATION NUMBER: | MCDO94-13 |
| PARTIES: | Gai Lorraine Edmonds (Applicant) |
| v | |
| Peter Evans (Respondent) |
| APPLICATION NUMBER: | MCDO105-13 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 12 November 2013 |
| HEARD AT: | Coolangatta |
| DECISION OF: | Adjudicator Bertelsen |
| DELIVERED ON: | 18 December 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application by Industry Pathways Pty Ltd for refund and relief is dismissed. 2. Industry Pathways Pty Ltd pay to Gai Lorraine Edmonds the sum of $6,779.40. |
| CATCHWORDS: | Independent contractor agreement – relevance of contract of employment – intersection of both arrangements – entitlement to remuneration for contactors work performed in standard work hours – whether entitlement maintained where additional hours worked as employee |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Evans, Director, Industry Pathways Pty Ltd |
| RESPONDENT: | Gai Lorraine Edmonds |
REASONS FOR DECISION
Applications
By application filed 14 June 2013 Industry Pathways Pty Ltd (Industry Pathways) seeks reimbursement of $5,760.00 paid by it to Gai Edmonds for contractual online marking services invoiced by her for online marking which were, according to Industry Pathways, improperly performed by her during standard hours of work as an employee (training manager of Industry Pathways) such sum being incorrectly or inadvertently paid to her in addition to her salary as training manager. Additionally Industry Pathways seeks relief from payment of any further moneys to Ms Edmonds.
By application filed 1 August 2013 Ms Edmonds seeks $6,678.00 for unpaid invoices raised for contracted online marking services performed by her in terms of an oral contract between herself and Industry Pathways to be paid separately and in addition to her salary as training manager of Industry Pathways.
Evidence and background
Ms Edmonds was employed as a salaried training manager for Industry Pathways a recently formed registered training organisation. During the course of her employment Ms Edmonds entered into a verbal agreement with the then Industry Pathways Chief Executive Officer Travis Latter for the performance of online marking of students seeking qualifications to work in the mining sector, particularly, mandatory supervisors courses (communication risk and occupational health and safety) and G2 courses (certificate 4 level in risk) which generally went hand in hand; Ms Edmonds stated that the agreement was such that she could perform online marking during normal 9-5 standard working hours as well as after hours; that this was so because some online marking was urgent in nature being for those students who might be proceeding to mine sites or who were at a mining site ready to start work; that the on the spot marking performed during standard work hours actually gave Industry Pathways a competitive edge; that time spent on online marking during work hours were more than compensated for by out of hours performance of her duties as training manager such that, in any event, her performance of her duties as training manager exceeded expectations in terms of her employment contract.
Mr Evans initially asserted that it was never the case that Ms Edmonds be paid for online marking during work hours; that online marking during work hours took up time that could have been spent doing things related to Ms Edmonds employment as training manager but did not elaborate as to what these things might have been.
Mr Evans did not dispute that there was an arrangement in place for Ms Edmonds to perform online marking nor did he dispute the quality of that online marking performed by her (in fact he said it was done well). Mr Evans did not dispute the quantum of online marking performed by Ms Edmonds but rather asserted that Ms Edmonds was only entitled to remuneration for online marking performed outside standard business hours and perhaps for a small percentage within initially, it appears, estimated by him at 18%. Mr Evans admitted that the arrangement was not so strict that it did not allow for “some things signed off during business hours”. Mr Evans also agreed that Ms Edmonds as a dedicated employee chose to come in early and leave late but that it was never a requirement for her to work extended hours in terms of her employment contract. Mr Evans stated that online marking was to be done generally out of hours; that there was a directive to that effect; that the online marking was effectively an after hours bonus for Ms Edmonds.
When the former CEO Travis Latter’s statement was put to Mr Evans, that statement containing in particular an assertion that the online marking “did not specify the marking was to take place outside of business hours” Mr Evans answered that the statement was not true alleging that Mr Latter has been dismissed for gross misconduct and that Mr Latter’s statement reflected a “changed story”.
Mr Evans agreed that some online marking performed during business hours was such as to be advantageous to Industry Pathways. Mr Evans agreed that some students were attended to during standard work hours; that it was difficult to quantify but that there was some resulting advantage to Industry Pathways. Mr Evans stated that Ms Edmonds would be paid for work of this nature occasionally.
Ms Edmonds produced the summary of all online marking initially proffered by Industry Pathways. Even though she asserted this summary not to be a complete record of her online marking e.g. the summary recording only 2 units for a number of students completing the supervisors course whereas 3 units is mandatory for such a course, she did highlight, in pink, all that which was performed out of standard work hours.
Of some 556 time entries recorded in the summary some 259 were outside of standard business hours. A further 17 highlighted by Ms Edmonds in yellow concerned marking not relevant to these claims.
Ms Edmonds stated that she was always answerable to CEO Travis Latter; that it was he on behalf of Industry Pathways who entered into the contractor arrangement with her to perform online marking; that it was a loose or flexible arrangement; that the remuneration was set at a per unit cost; that it was a case of working hard to get the company going; to get this new company into number one position; that such involved not only working excessive hours in her position as a training manager but also getting online marking done promptly; that all efforts were directed to obtaining a top industry position.
Payments made
Mr Evans asserted a refund of 82 per cent of online marking invoices numbers 5, 9, 10, 17, 7, 15, 16, 14, 13, 12, 11, 18, 2, 3, 4, 8, 6 because that was the percentage he said was performed in standard working hours ie a refund of $5,760 of those invoices totalling $6,965. Those 17 invoices in fact total $8,365. The totality of invoices 9, 10, 17, 15, 16, 14, 13, 12, 11, 18, 2, 3, 4, 8 and invoice number 1 total $6,965, the sum that Mr Evans asserted had already been paid to Ms Edmonds. Ms Edmonds in her cross claim asserted non payment of invoices 5, 6 and 7 as well as invoice 19. Mr Evans agreed invoices 5, 6 and 7 ought not form part of the equation in terms of determining percentage refund; that they could therefore be properly regarded as invoices in respect of which relief from payment was sought.
Witness – Travis Latter
Travis Latter was CEO of Industry Pathways during the entire time of Ms Edmonds employment. He provided a statement to the Tribunal as well as giving evidence at hearing. He indicated he was the person responsible for Ms Edmonds employment and for her online marking contract. He stated that the online marking contract did not specify that marking was to take place outside of business hours for the reason that online marking performed in business hours gave Industry Pathways a competitive edge in assessing students for employers promptly, virtually on the spot. He considered this sound commercial reasoning; that it was a case of getting the job done at the time. He stated that Ms Edmonds worked excessive hours outside normal business hours including weekends; that any online marking conducted during normal business hours was ‘well and truly compensated for by the amount of time she spent working as an employee outside of normal business hours’. Mr Latter thought this flexible business arrangement worked well. Additionally Ms Edmonds was the only person on hand with the necessary qualifications to be able to perform online marking in respect of the relevant courses. Mr Latter stated quite clearly that he did not consider Ms Edmonds employment as a training manager suffered as a result of undertaking the separate online marking. Mr Latter stated that to have an outside contractor retained for the purpose of online marking that it would be more likely to cost $50 per unit plus hiring costs (as opposed to $33 per unit absent hiring costs).
Mr Latter applauded Ms Edmonds commitment to Industry Pathways both in her capacity as an employee and as a contractor. He confirmed that her marking was of a very high standard; that in fact she was the only contractor available able to assess students and that finally he was, as chief executive officer, authorised to enter into the contract with Ms Edmonds.
Witness – Deborah Pinard
She was a compliance manager at Industry Pathways during the time Ms Edmonds was both employed and contracted to Industry Pathways. She stated that she was aware that Ms Edmonds very often was in at work as early as 7:15 am as well as working well past finishing time at 5:00 pm. She was aware of many instances where students would ring seeking assistance. That was always referred from the sales manager to Ms Edmonds who then had to access the ‘catapult system’ on her computer to be able to answer queries from students. She was aware that there were directives for urgent marking; that often urgent marking had to be done straight away for students who for instance might be waiting to get onsite. In cross-examination Ms Pinard indicated that she thought there was at least one matter of urgency per week in this category. Ms Pinard indicated that she was aware that there was a separate contract operating with respect to Ms Edmonds online marking; that she was of the understanding that the agreement did not stipulate that marking had to be out of hours. She stated she was aware that Ms Edmonds would often have online marking printed out and taken home for marking. She stated that she observed Ms Edmonds marking in working hours as requested by the sales manager at least once or twice a week.
Witness – Baige Edmonds
Miss Baige Edmonds is the daughter of Ms Edmonds and she was employed as a receptionist during the time of Ms Edmonds employment at Industry Pathways. She gave evidence that Ms Edmonds would arrive at work early in the morning around 7:30 am; that Ms Edmonds worked weekends and late at night; that students rang during office hours seeking assistance; that such calls were put through as a matter of urgency; whilst Miss Baige Edmonds could not recall the number of such calls per week she was in general terms aware of the long hours both at work and outside work put in by her mother Ms Edmonds.
Witness – Donald Veness
Mr Veness was the partner of Ms Edmonds. He or his company was a contractor to Industry Pathways as well. He stated that Ms Edmonds had conducted training during the last Easter break; that she was on call on weekends. He was aware of a verbal contract regarding online marking but could not otherwise comment.
Conclusions
Ms Edmonds was employed as a training manager by Industry Pathways commencing February/March 2012. She was there for the best part of a year.
In addition to her position as training manager at Industry Pathways she entered into a verbal agreement with Industry Pathways, in the person of CEO Travis Latter, to perform online marking for student assessments for entry into or work within the mining industry. In terms of the online assessments she was the only person on hand who had the necessary qualifications to conduct this online marking. She agreed to perform the online marking for $33 per unit or $100 per three units. The rate per unit is not in question it is effectively a set rate referrable to a simple formula of set cost per unit.
The quality of online marking performed by Ms Edmonds was not in dispute. In fact it appears that the marking was performed well and efficiently. Nor was there any dispute as to the quantum of online marking performed by Ms Edmonds. Rather it was asserted by Mr Evans that it was always the case that such online marking was to be performed outside of standard business hours ie 9:00 am to 5:00 pm; that on occasions it may have been acceptable for online marking to be conducted within standard working hours for the commercial benefit of Industry Pathways. He further asserted that the original agreement was for all online marking generally to be done outside standard business hours; that subsequently the position changed in that Mr Latter’s assertion, that the online marking agreement did not specify that marking was to take place generally outside of business hours, was related, impliedly, to Mr Latter’s apparent cessation of his position as CEO and his apparent dismissal for misconduct, the latter not being pursued by Mr Evans.
There being no dispute as to the quantum of online marking performed the issues are reduced to whether or not Ms Edmonds was authorised to perform online marking during standard business hours.
Mr Latter was called as a witness for Mr Evans. He confirmed a verbal arrangement whereby for the benefit of Industry Pathways online marking could be conducted during standard business hours particularly that which was of an urgent nature because that gave Industry Pathways a competitive edge appropo competitors. It was a recently formed registered training organisation that was making an all out effort to cement its place in the market.
Whilst Mr Evans asserted that online marking conducted during standard business hours impinged upon Ms Edmonds employment under her employment contract no evidence was produced of any deficiency of performance in her duties as training manager. Ms Edmonds worked excessively long hours in terms of her employment contract and even though according to Mr Evans she did not need to do so she in fact did so. The evidence of Mr Latter and Ms Pinard in particular would suggest she was a dedicated employee who did her job well. The intermingling of work time ie performing her duties as training manager and conducting online marking was a flexible and beneficial arrangement for Industry Pathways. No evidence was produced to suggest that this arrangement was anything other then beneficial. Mr Latter as former CEO indicated that the flexible arrangement made good commercial sense.
Urgent enquiries made by students during standard work hours necessitated Ms Edmonds accessing the Catapult System on her computer so as to be able to answer student’s queries and render assistance. Even at once or twice per week this would account for some 100 times the Catapult System was accessed by Ms Edmonds during standard work hours. When one takes such urgent enquires into account by reference to what appears to be an incomplete summary provided by Industry Pathways it is still recording some 259 entries out of a total of 556 entries being outside business hours (as well as some 17 irrelevant entries) one can easily come to the conclusion that the number of entries that might be applicable to Ms Edmonds conducting online marking in standard business hours might well be around 180 only. As a percentage of a total of 556 entries that is approximately 32 per cent. This can lead one easily to the conclusion that the bulk of online marking was in any event conducted outside standard business hours.
Ms Edmonds performance in her position as training manager was never seriously challenged; her marking was up to speed; that she was the only person on hand who had the qualifications to conduct such marking was never seriously challenged; that the retention of Ms Edmonds as a contract online marker by Mr Latter a person in authority to enter into such an arrangement was not challenged. The assertion that the terms of the agreement for Ms Edmonds to conduct online marking was somehow changed or skewed after the event is not supported. What was relied upon was some sort of implication that there was some sort of ‘bad blood’ particularly between Mr Evans and Mr Latter and perhaps other former employees such as Ms Edmonds.
In short the Tribunal finds the contractor agreement was validly entered into by Mr Latter on behalf of Industry Pathways; that it never specified that online marking was to take place only standard outside business hours; that some online marking was certainly required to be conducted within standard business hours; that such was in any event admitted by Mr Evans; that it was a flexible arrangement that worked well and to the benefit of Industry Pathways allowing it to gain a competitive edge; that it was commercially sensible for Ms Edmonds to perform the online marking and not for a third party contractor to be employed at a more expensive rate; that it was not disputed that Ms Edmonds performed the online marking well and efficiently. There is no reason in these circumstances why Ms Edmonds should not be fully remunerated for her work as a contractor. The quantum of her claim is a debt. With quantum not in dispute she is entitled to remuneration in terms of unpaid invoices 5, 6, and 7 at $400, $300, and $500 respectively as well as remuneration in terms of invoice 19 dated 31 March 2013 for $5,478 a total of $6,678 as claimed. The filing fee of $101.40 is allowed.
Order will be that:
1.The application by Industry Pathways Pty Ltd for refund and relief is dismissed.
2.Industry Pathways Pty Ltd pay to Gai Lorraine Edmonds the sum of $6,779.40.
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