Jolley v Genesis Medical Trust T/A Mentone Medical Clinic

[2018] FCCA 1781

FEDERAL CIRCUIT COURT OF AUSTRALIA

JOLLEY v GENESIS MEDICAL TRUST T/A MENTONE MEDICAL CLINIC [2018] FCCA 1781

Catchwords:
INDUSTRIAL LAW – Small Claims – Fair Work division – Health Professionals and Support Services Award 2010.

Legislation:

Fair Work Act 2009 (Cth), s.548.

Fair Work Regulations 2009, reg.4.01.

Applicant: KIM YVONNE JOLLEY

Respondent: GENESIS MEDICAL TRUST T/A MENTONE MEDICAL CLINIC

File Number: MLG 30 of 2018

Judgment of: Judge Mercuri

Hearing dates: 26 March 2018

Date of Last Submission: 26 March 2018

Delivered at: Melbourne

Delivered on: 6 July 2018

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the respondent: In person

Solicitors for the respondent: None

ORDERS

1. Genesis Medical Pty Ltd, Trustee of the Genesis Medical Trust t/a Mentone Medical Clinic be substituted as the respondent to these proceedings.

2. Within 21 days of the date of these orders, the respondent,

   
   

   Genesis Medical Pty Ltd Trustee of the Genesis Medical Trust t/a Mentone Medical Clinic, pay:

   (a)to the applicant, the sum of $5,140; and

   (b)to the applicant’s nominated superannuation fund, the sum of $243.54 on the applicant’s behalf.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 30 OF 2018

KIM YVONNE JOLLEY

Applicant

And

GENESIS MEDICAL TRUST T/A MENTONE MEDICAL CLINIC

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application by Ms Jolley under the Fair Work Act 2009

   
   

   (“FW Act”). The application is brought under the small claims provisions of the FW Act.[1]

   [1] Section 548 of the FW Act and regulation 4.01 of the Fair Work Regulations 2009 (“FW Regulations”).

2. In essence, the applicant claims that:

   a)for the relevant period, she was employed as the acting practice manager of the respondent’s medical practice;

   b)she ought to have been paid higher duties for that work at the appropriate level under the Health Professionals and Support Services Award 2010 (“the Award”) namely Support Services Employee Level 8; and

   c)the respondent failed to pay her at the appropriate rate under the Award.

3. The applicant seeks payment of her outstanding entitlements and costs associated with these proceedings in the sum of $5,659.03.

4. The respondent opposes the orders sought by the applicant on the basis that:

   a)the duties that the applicant was employed to perform did not warrant payment at the rate claimed; and

   b)in any event, the applicant was paid above the Award rate for her duties and the over Award payment was sufficient to compensate her for any claim that she might have had for a higher duties allowance.

Summary

1. For the reasons set out below, I find that:

   a)during the period from 23 June 2016 to 27 March 2017 (“the relevant period”), the applicant was engaged to perform higher duties as the respondent’s acting practice manager;

   b)the duties associated with the role of acting practice manager ought properly have been classified as Support Services Employee Level 8 under the Award;

   c)during the relevant period, the respondent failed to pay the applicant at the appropriate classification level in accordance with the Award (“the underpayment”);

   d)the respondent must remedy the underpayment including in respect of unpaid superannuation entitlements; and

   e)the applicant’s claim for costs associated with these proceedings is denied.

Preliminary issue

1. As is the court’s practice in the Small Claims tribunal, Mr Sheer from the Fair Work Ombudsman appeared as amicus curiae. 

2. In that capacity, he alerted the court to the fact that the proceedings were commenced against the Trust itself which trades as the

   
   

   Mentone Medical Clinic, whereas the proper legal entity is in fact the trustee of the Trust. Mr Sheer identified the trustee as

   
   

   Genesis Medical Proprietary Limited and handed up a company extract in respect of that entity. 

3. The respondent was represented at the hearing by Ms Proy. When asked about this issue, Ms Proy said she was not the owner of the business. I am satisfied that the proper respondent to these proceedings is the trustee and will make an order amending the name of the respondent to reflect that.

Background

1. Overall, the factual background to this matter is not in dispute. There is however, a significant dispute between the parties as to the legal consequences and effect of those facts.

2. The respondent operates a medical clinic in Mentone. The applicant was employed by the respondent as a receptionist, initially on a casual basis in March 2016. 

3. Dr Isaac Olaniyi filed an affidavit in these proceedings sworn

   
   

   25 March 2018, in which he deposed to the fact that he is the ‘owner and medical director of the Mentone Medical Clinic located in the Thrift Park Shopping Centre, 171 Nepean Highway Mentone Vic 3194’.[2] He did not however, attend the hearing in person and the respondent was represented at the hearing by Ms Proy, who was employed as the respondent’s business manager.

   [2] Affidavit of Dr Isaac Olaniyi filed 26 March 2018.

4. Both the applicant and Ms Proy gave evidence in these proceedings. 

5. The applicant gave evidence, which I accept that although she had worked as a receptionist previously for some 12 years, she had not previously worked in a medical practice.[3]

   [3] Transcript page 11 at lines 1 to 5.

6. It is common ground that in June 2016, Ms Proy, who at the time was employed as the respondent’s practice manager, left the practice and the applicant was asked to take on the role of ‘Acting Practice Manager’.[4] She continued in this capacity from 23 June 2016 to

   
   

   27 March 2017, when a new practice manager was appointed and the applicant was appointed as her second in charge.

   [4] Transcript page 9 at lines 40 to 44; page 24 at lines 40 to 41 and page 27 at lines 40 to 42.

7. On 12 July 2016, the applicant entered into an employment contract (“letter of engagement”) with the respondent which stated that she was employed on a full time basis, initially on a probationary period for three months. This letter of engagement stated that the applicant’s position was that of receptionist and made no reference to her duties as an

   
   

   Acting Practice Manager. The respondent relied on this as evidence in support of the argument that the applicant was in fact employed and appropriately remunerated as a ‘receptionist’.[5]

   [5] Transcript page 33 at line 1 to 13 and exhibit G.

8. The applicant provided various documents to the court in support of her claim that she was performing higher duties whilst undertaking the role of Acting Practice Manager and that she ought to have been remunerated at the classification of Support Services Employee Level 8. These include:

   a)an email dated 23 June 2016 from Isaac Olaniyi to various staff which advises that Ms Proy ‘will no longer be working at the practice with immediate effect’; and

   Kim Jolley is henceforth appointed Acting Practice Manager. Please… address all practice matters to her in the future. She will be handling rostering etc and all practice related matters;[6]

   [6] Page 12 of the affidavit of Kim Jolley filed 5 January 2018.

   b)an email dated 29 August 2016 from Isaac Olaniyi to various staff which confirms that the applicant:

   …remains the acting practice manager. All matters relating to the practice including reception and nursing issues and rostering are to be addressed to her… All matters relating to payroll are to be addressed to Sharon Proy… I would suggest this hierarchy not be ignored under any circumstances…;[7]

   c)a further email dated 4 October 2016 sent by Isaac Olaniyi to various staff which said:

   …Sharon Proy remains the payroll and business manager. What this means is that all matters relating to payroll should be directed to her. She also remains responsible for rosters and staff recruitment and management. Kim Jolley is the acting practice manager but must report to both myself and Sharon Proy…;[8] and

   d)on 27 March 2017, Isaac Olaniyi advised staff by a further email that a new practice manager would be starting the next day and that ‘Kim Jolley would be second in charge’.[9]

   [7] Page 13 of the affidavit of Kim Jolley filed 5 January 2018.

   [8] Page 14 of the affidavit of Kim Jolley filed 5 January 2018.

   [9] Page 15 of the affidavit of Kim Jolley filed 5 January 2018.

9. The applicant has produced pay slips which show that the applicant was initially paid an ordinary hourly rate of $19.90 per hour.

   
   

   In mid-July 2016, this rate increased to $20.37. When the applicant became a full time employee, she was paid $21.00 per hour between 25 July 2016 and 27 November 2016. She was then paid $22.00 per hour from 28 November 2016 to 20 March 2017 at which time her hourly rate of pay increased to $23.00 per hour. However she was not paid this increase until April 2017, when she received a back-payment of $315.50. 

Award terms

1. The Award relevantly provides:

   10.1(b)…An employer may direct an employee to carry out such duties that are within the limits of the employee’s skill, competence and training, consistent with the respective classification.

   13. All employees covered by this Award must be classified according to the structure and definitions set out in Schedule B – Classification Definitions.  Employers must advise their employees in writing of their classification upon commencement and any subsequent changes to their classification.

   30.1 A Support Services employee engaged in any duties carrying a higher wage rate than the classification in which they are ordinarily employed in any one day or shift will be paid at the higher wage rate for:

   (a)     the time so worked for two hours or less; or

   (b)a full day or shift where the time so worked exceeds two hours.

2. Schedule B of the Award then sets out the classification definitions. It was common ground that whatever her classification level, the applicant was a support services employee. The applicant conceded that, her substantive position as a receptionist was appropriately classified as a Support Services Employee Level 3. 

3. Clause B.1.3 relevantly states:

   Support Services employee – level 3

   An employee, other than an administrative/clerical employee, at this level:

   ·   Is capable of prioritising work within established routines, methods and procedures;

   ·   Is responsible for work performed with a medium level of accountability or discretion;

   ·   Works under limited supervision, either individually or in a team;

   ·   Possesses sound communication and/or arithmetic skills; and

   ·   Requires specific on-the-job training and/or relevant skills training or experience.

   An administrative/clerical employee at this level undertakes a range of basic clerical functions within established routines, methods and procedures.

   Indicative roles performed at this level are… Receptionist.

4. Clause B.1.7 relevantly states:

   Support Services employee - level 7

   An employee at this level:

   ·   is capable of functioning autonomously, and prioritising their work and the work of others within established policies, guidelines and procedures;

   ·   is responsible for work performed with a substantial level of accountability and responsibility;

   ·   may supervise the work of others, including work allocation, rostering and guidance;

   ·   Works either individually or in a team;

   ·   may require comprehensive computer knowledge or be required to use a computer on a regular basis;

   ·   possesses developed administrative skills and problem solving abilities;

   ·   possesses well developed communication, interpersonal and/or arithmetic skills; and

   ·   may require formal qualifications at trade or Advanced Certificate or Associate Diploma level and/or relevant skills training or experience.

   Indicative roles performed at this level are… General clerical supervisor, general services supervisor…

5. Clause B.1.8 relevantly states:

   Employees at this level will typically have worked or studied in a relevant field and will have achieved a standard of relevant and/or specialist knowledge and experience sufficient to enable them to independently advise on a range of activities and features and contribute, as required, to the determination of objectives, within the relevant field/s of their expertise.

   They are responsible and accountable for their own work; and may have delegated responsibility for the work under their control or supervision, in terms of, inter-alia, scheduling workloads, resolving operational problems, monitoring the quality of work produced as well as counselling staff for performance as well as work-related matters.

   They would also be able to train and to supervise employees in lower levels by means of personal instruction and demonstration. They often exercise initiative, discretion and judgement in the performance of their duties.

   The possession of relevant post- the secondary qualifications may be appropriate but not essential.

   Indicative typical duties and skills in this level may include:

   ·   operating and having responsibility for a complex and diverse payroll system;

   ·   applying detailed knowledge of the organisations objectives, performance, projected areas of growth, product trends and general industry conditions for the purposes of assisting in developing policy or new products and services to meet changing market needs or other circumstances;

   ·   using computer software packages including evaluating and determining optimum software solutions or the integration of complex word processing/data/graphics text;

   ·   finalising quotations or costings by applying a detailed knowledge of variable inputs, margins, market conditions, supply and delivery arrangements; or preparing internal reports the management in any or all of the following areas:

   (a)     account/financial;

   (b)     staffing;

   (c) legislative requirement; and

   (d)     other significant company activities/operations.

6. Clause 22 of the Award also deals with the issue of superannuation and relevantly provides at 22.2:

   An employer must make such superannuation contributions to a superannuation fund for the benefit of an employee as will avoid the employer being required to pay the superannuation guarantee charge under superannuation legislation with respect to that employee.

Issues in dispute

1. The issues between the parties were:

   a)whether the applicant was performing higher duties;

   b)if so, whether she was performing them for more than two hours each day;

   c)in any event, what classification level applied to the higher duties that the applicant did perform and therefore what rate of pay should the applicant have received for that work; and

   d)could any over Award payment be used to offset any obligation the employer had to pay a higher rate?

2. I will deal with each of these issues in turn.

Higher duties

1. I am satisfied on the basis of the evidence that the applicant was initially employed in the position of receptionist. I also find that the applicant was correctly classified in that role of receptionist at classification of Support Services Employee Level 3.

2. On the basis of the pay guides provided to assist the court by Mr Sheer, when the applicant was initially employed, the pay rate for Level 3 employee was $19.89 per hour. The rate for a Level 7 employee at that time was $22.32 per hour and for a Level 8 (pay point 1) employee, $23.08 per hour.[10]

   [10] Fair Work Ombudsman Pay Guide – Health Professionals and Support Services Award 2010 from July 2015.

3. From 1 July 2016, the hourly rate of pay for a Level 3 employee increased to $20.37. The rate for a Level 7 employee at that time was $22.86 per hour and for a Level 8 (pay point 1) employee, $23.64 per hour.[11]

   [11] Fair Work Ombudsman Pay Guide – Health Professionals and Support Services Award 2010 from July 2015.

4. Apart from the one week from 23 June 2016, the remainder of the period during which the applicant performed the duties of the practice manager are subject to the pay rates specified in the July 2016 Pay Guide. 

5. It was argued on behalf of the respondent that the applicant was employed as a receptionist, that this in effect did not alter over the course of her employment and to the extent that she was asked to perform any higher duties, these duties did not occupy more than two hours of her work each day. 

6. As stated above, clause 30 of the Award provides that where a support services employee is engaged in any duties which carry a higher rate of pay to the classification in which they are ordinarily employed, they will be paid either for the time worked at the higher classification if less than two hours, or for the whole shift if more than two hours. 

7. I am satisfied that the classification in which the applicant was ordinarily employed was a Support Services Employee Level 3 on the basis that this is the appropriate classification for her position as a receptionist. However, I also find that from 23 June 2016, the applicant was required to perform higher duties, namely the duties of the Acting Practice Manager. This role had, up until that point in time, been undertaken by Ms Proy and the evidence is that she resigned from that position and ceased to perform those duties. 

8. The respondent submitted that to the extent that the applicant was required to perform any duties which were above her substantive responsibilities as a receptionist, these did not take up more than two hours per day and therefore if she is in fact entitled to a higher duty payment, it is for no more than two hours per day. No evidence was led in support of this submission. Rather, the respondent provided to the court a bundle of emails between the applicant and Dr Olaniyi which are said to evidence the fact that the duties she was being asked to do were really no more than any other member of staff and were not really managerial in nature.

9. I do not accept this submission or that it is supported by the evidence. 

10. The applicant gave evidence that when Ms Proy resigned, she had a discussion with Dr Olaniyi who asked her if she would like to take on the role of Acting Practice Manager. She said that they discussed what was involved and she thereafter accepted this role. The applicant gave evidence of the duties which she performed in the role of Acting Practice Manager which were over and above the duties of a receptionist. 

11. I accept her evidence in this regard and note that it is consistent with the evidence given by Dr Olaniyi in his affidavit sworn 25 March 2018.

12. I also note that in that affidavit, Dr Olaniyi attested to the fact that he is the owner and medical director of the Mentone Medical Clinic and that:

    Due to unforeseen circumstances at the time and the temporary absence and departure of Ms Sharon Proy who was the Business Manager, Ms Jolley was asked to step in as practice manager. This was a temporary measure as the intention was to find a new practice manager.[12]

    [12] Paragraph 3 of the affidavit of Dr Isaac Olaniyi filed 26 March 2018.

13. In addition, Dr Olaniyi further deposed that:

    Ms Proy’s absence was a temporary one as she came back to work again in the clinic after a few days since Ms Jolley could not cope with the immense responsibilities and additional demands of her role which included accounts and rostering.[13]

    [13] Paragraph 7 of the affidavit of Dr Isaac Olaniyi filed 26 March 2018.

14. The applicant conceded that Ms Proy did return after a short absence. She also conceded that Ms Proy undertook the payroll work but said that she otherwise continued to perform the role of practice manager which included:

    a)rostering;

    b)being a point of contact for other staff members;

    c)dealing with overdue accounts;

    d)addressing problems with any issues with the scanner or fax machines;

    e)batching and dealing with Medicare;

    f)organising medical reports and paperwork for allied health services; and

    g)handling customer complaints, issues and feedback.

1. The applicant gave evidence, which I accept, that these were duties which were not performed by other receptionists.

2. It was submitted on behalf of the respondent that the applicant was not able to perform the tasks of the Practice Manager. In support of this submission, the respondent sought to rely upon two letters of warning which were apparently given to the applicant during the course of her employment. One was a draft letter of warning dated 2 November 2016 and the other a signed letter of warning dated 18 December 2016.[14] The applicant denied having received the first warning. She acknowledged having received second warning (dated 18 December 2016) but put forward an alternative explanation of the circumstances which gave rise to that letter.

   [14] Exhibit D and exhibit E.

3. I am not required, and do not make any findings as to whether these warning letters were appropriate or justified. I do note however, that if the respondent was not satisfied with the quality of the work performed by the applicant in the role of Acting Practice Manager, the appropriate course would have been to provide her with the necessary feedback and support to achieve the standard required and ultimately, if that was not possible, then to remove those higher duties from her role.

4. It is not appropriate for the respondent to say on the one hand, the organisation needs you to perform these additional duties and take on these additional responsibilities, but then on the other refuse to pay the appropriate rate of pay, on the basis that the duties were not performed to some unspecified standard.

5. The issue in this case is whether the applicant was engaged in any duties which carry a higher rate of pay to that for which she was ordinarily employed. It does not require this court to consider whether she was performing those duties to an acceptable level. I accept that the applicant was engaged in carrying out the duties of practice manager, albeit on a temporary and acting basis and I so find.

6. To that extent therefore, she is entitled to a higher duties payment in accordance with the terms of clause 30 of the Award.

7. The respondent has not provided sufficient evidence on which to make a finding that to the extent that the applicant was engaged to perform duties of the Acting Practice Manager, that these duties were not performed for more than two hours each day. 

8. I therefore find that the applicant is entitled to payment for the entire period that she was performing higher duties as Practice Manager; that is from 23 June 2016 to 27 March 2016 inclusive. 

Appropriate classification

1. I turn then to the question of what the appropriate classification is for the Practice Manager role. The applicant has submitted that the appropriate classification is Support Services Employee Level 8. 

2. The respondent, whilst conceding that the applicant was performing some duties over and above those of a receptionist and that Level 3 did not adequately apply to the role that she was performing at the relevant time, did not make any submissions as to which classification level would be appropriate to apply to the work that the applicant performed. Indeed at the hearing, the following exchange occurred with Ms Proy:

   MS PROY ...We’re not saying that she was only just doing a level 3, but we were under the impression that paying the higher duties would compensate for the extra duties she was doing, because she wasn’t doing the level 8 practice manager role at all.

   HER HONOUR      But between level 3 and level 8, there are … four other levels.

   MS PROYI understand that, yes.

   HER HONOUR      So what I’m saying is, are you still maintaining that the appropriate level is a level 3 rate?

   …

   MS PROYI’m not saying she’s not entitled to that level, but its not for me to decide what level it is.  We’re just saying she’s not entitled to a level 8 wage.[15]

   [15] Transcript page 53 at lines 17 to 35.

3. Other than this very general submission, the respondent did not point the court to any particular classification level which it said appropriately reflected the work performed by the applicant. 

4. It goes without saying that the classification descriptors in this, like many awards, are very broad and have the flexibility to apply across a range of different organisations and organisations of differing levels of complexity.

5. Having said that however, and accepting that the applicant did not perform the payroll function once Ms Proy returned to work for the respondent, I find that the classification descriptors for Support Services Employee Level 8 would cover the work performed by the applicant.

6. In particular, I accept that the applicant was responsible for dealing with rostering issues, resolving operations problems and providing training and supervision to employees in lower levels by personal instruction and demonstration. I am satisfied on the basis of the evidence provided by the applicant that she was required to exercise initiative, discretion and judgement in the performance of her duties as the Acting Practice Manager. 

Over Award payments

1. Having come to this view, it follows that at no stage during the relevant period was the applicant paid over the applicable award rate of pay.

   
   

   From 23 June 2016 to 30 June 2016, the applicant ought to have been paid $23.08 per hour. From 1 July 2016 she ought to have been paid $23.64 per hour.  

2. The applicant attached to her application a summary of the discrepancy between the pay she claimed and the pay she received over the relevant period.

3. As set out above, the respondent did not take any particular issue with this other than to concede that the applicant was entitled to something more than level 3. The respondent did not identify what the correct rate of pay was nor did it or Ms Proy at the hearing take issue with the calculations contained in the applicant’s claim.

4. I accept the applicant’s calculations of the underpayments.

Costs

1. I note that the applicant has claimed costs including document serving costs and court lodgement costs. Section 570 of the FW Act significantly limits the circumstances in which this court can award a party to pay costs. Relevantly, the effect of section 570 is that this court could only order the respondent to pay the applicant’s costs if satisfied that the respondent’s unreasonable act or omission caused the applicant to incur the costs.

2. I am not satisfied that this is a case in this instance and therefore I do not order that the respondent pay the applicant’s costs of filing and serving documents associated with these proceedings.

Conclusion

1. For the reasons set out in this judgment, I make the following orders:

   a)Genesis Medical Proprietary Limited t/a Mentone Medical Clinic be substituted as the respondent to these proceedings;

   b)The respondent, Genesis Medical Proprietary Limited t/a Mentone Medical Clinic, pay:

   i)to the applicant, within 21 days of the date of this order the sum of $5,140;

   ii)to the applicant’s nominated superannuation fund, the sum of $243.54 on the applicant’s behalf.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date: 6 July 2018