Kalinda Ferguson and Belinda Bettsv.Pleasant Way Motel Pty Limited
[2011] FWA 3815
•17 JUNE, 2011
[2011] FWA 3815 |
|
DECISION |
Fair Work Act 2009
s.394 — Application for a remedy for alleged unfair dismissal
Kalinda Ferguson and Belinda Betts
v.
Pleasant Way Motel Pty Limited
(U2010/2096 and U2010/2097)
COMMISSIONER CONNOR | WOLLONGONG, 17 JUNE, 2011 |
Applications for alleged unfair dismissal - allegations that the employees had not been dismissed -the nature of the employment - casual employment - entitlements of casual employees to a remedy for unfair dismissal - monetary compensation ordered
Introduction
[1] Ms Kalinda Ferguson and Ms Belinda Betts, were employed as cleaners by Pleasant Way Motel Pty Limited at Nowra. They assert that their services were terminated on Thursday, 9 December, 2010 after over twelve months of employment and they lodged separate applications under s.394 of the federal Fair Work Act 2009 (the FW Act). They claim that there was no valid reason for their dismissal and no reason had actually been given to them for their dismissal. Conciliation was arranged by teleconference — on Tuesday, 25 January, 2011 in the case of Ms Ferguson and Thursday, 27 January, 2011 in the case of Ms Betts — but conciliation was not successful and the files were allocated to me for hearing.
[2] I received the s.394 application by Ms Ferguson first and set it down for mention and programming on Wednesday, 9 February, 2011 (in the premises at 90 Crown Street, Wollongong which Fair Work Australia now shares with the Industrial Relations Commission of New South Wales). I proceeded by way of telephone conference to arrange a hearing day — on Monday, 9 May, 2011 (in Wollongong). I was informed by Mr Boghossian, then representing Ms Ferguson, in the proceedings that there was the related s.394 application for Ms Betts (whom Mr Boghossian also represented at that time) and arrangements were made for that matter to also be allocated to me. It was convenient to the parties for both s.394 applications to be heard together and I set that second matter down for the same hearing date of Monday, 9 May, 2011.
[3] I gave directions for the filing and serving of evidentiary material to both parties. Mr Boghossian was to file and serve the evidentiary material on which he was intending to rely by Wednesday, 6 April, 2011. The motel was to respond with its evidentiary material by Wednesday, 27 April, 2011 and any reply to that material from the motel was to be provided by Wednesday, 4 May, 2011. However, on Tuesday, 1 March, 2011 Mr Boghossian gave notice that he was ceasing to act for Ms Ferguson and Ms Betts. The motel was not aware of that until I communicated with it on the telephone.
[4] In any event, Ms Ferguson and Ms Betts were subsequently represented by Dr Thornton. On Friday, 8 April, 2011 The solicitor representing Ms Ferguson and Ms Betts filed their written statements in evidence with FWA. However, he did not serve those statements on the motel at that time. The motel only received those written statements on Monday, 2 May, 2011 and consequently they did not provide any reply to it in accordance with my directions. The solicitor filed his notice of representation for Ms Ferguson and Mr Betts on Friday, 29 April, 2011 and subsequently sought an order for the production of certain documents by the motel.
[5] In the proceedings on Monday, 9 May, 2011 Mr Adam Eivers appeared representing the motel. I understand that he and his wife were appointed as managers of the motel in late 2010. Mr Eivers indicated that he had been instructed by Mr Boghossian to communicate with him at all times over a settlement of the matter. His failure to inform the motel management that he had ceased to act for them has certainly contributed to the unnecessary delay in resolving this matter. I would have thought that he had a responsibility to do so in the interests of his former clients and FWA.
[6] Therefore for the scheduled hearing of the matters on Monday, 9 May, 2011 I do not believe that I had any alternative other than to abandon the hearing and rescheduled it for Wednesday, 8 June, 2011, amending my earlier directions so that the motel had until Monday, 23 May, 2011 to file and serve its evidentiary material and Ms Ferguson and Ms Betts had until Monday, 30 May, 2011 for any further response. It was agreed in the proceedings on Monday, 9 May, 2011 that the documents sought by the solicitor representing Ms Ferguson and Ms Betts were to be provided within fourteen days. That has not occurred, however.
[7] However, Mr Eivers has provided the following information by e-mail on Wednesday, 18 May, 2011:
"...I am writing in regards to the hearing. I ask again that these matters are to be struck off. The representation did not supply the documentation to the Commission until Friday, 29 April, 2011, over a month after the due date set out by the commissioner. The documentation supplied by the representative for the complainants was not adequate to demand a hearing as the only payslips provided stated the complainants were paid as casuals which has been our argument all along. As well as there was no dismissal.
As it is the understanding of the Commission that these matters could only be heard if the employees were permanent. It is our understanding that the employees' representation must show an uninterrupted employment of 12 months. This was not shown in any way by the girls' representation. Neither was any proof of any dismissal in these documentation to the Commission.
The employees were offered on four separate occasions to return to work. The first being offered on Tuesday, 21 December, 2010. These offers were declined. This would mean there would have only been an 8 day gap in employment.
The employees were on a verbal agreement which stated they would be given hours as needed by the motel, which directly corresponded to the occupancy rate. They were casual employees and were paid as such.
In closing, it is the view of the Pleasant Way Motel that these matters should not be allowed to continue and should be struck off..."
[8] Mr Eivers was subsequently advised by reply e-mail on Friday, 20 May, 2011 that the hearing would go ahead on Wednesday, 8 June, 2011 as had originally been scheduled. Mr Eivers forwarded a further e-mail later that day as follows:
"...The Pleasant Way will only be giving a statement to the commissioner and will not be attending any hearing. As we believe the process to be unlawful. Ms Betts and Ms Ferguson were casual employees paid casual wages. FWA, we believe, has no authority to request we attend any hearing for casual employees. The representation for Ms Betts and Ms Ferguson have not supplied any evidence of a dismissal. As well as any evidence that the employees were permanent.
The employees were never dismissed, either verbally or in writing. The employees never contacted their place of employment before taking legal action. Ms Betts and Ms Ferguson have provided false and misleading information to the Commission. This is why their first legal representative dropped their case.
Ms Betts is currently employed and has been in that employment for over three months. Ms Betts was employed after she left the Pleasant Way by George Bass Motel and is currently employed by the Spring Resort. Both girls had a broken record of employment and therefore even with time in employment, cannot lawfully be classed as anything but casual employees.
The Pleasant Way request that all action by FWA be stopped immediately..."
[9] Consequently when the matter resumed before me for hearing on Wednesday, 8 June, 2011 there was initially no appearance for and on behalf of the respondent motel and Dr Thornton, who continued to represent Ms Ferguson and Ms Betts, pressed me to proceed to hearing ex parte. However, shortly after the proceedings commenced Mr Eivers and his wife did appear in the proceedings. Dr Thornton called Ms Ferguson and Ms Betts to give evidence in the hearing. I admitted Mr Eiver's e-mails to me as his evidence in the hearing and he also gave evidence under oath.
[10] Dr Thornton raised in issue whether or not Mr Eivers actually had the authority of the motel owner to appear in these proceedings. The solicitor representing Ms Ferguson and Ms Betts had written to the owner of the motel seeking clarification of the position of Mr Eivers. He has received no response and, in the circumstances, I see no reason why I should not assume that Mr Eiver's is a legitimate agent of the motel owner. Clearly he is the manager of it and I have nothing before me to suggest other than he is authorised to appear for it in these proceedings.
The Issues in Dispute
[11] Ms Ferguson and Ms Betts claim that they had worked on a casual but systematic and regular basis for the motel. Ms Ferguson claimed in a written statement which formed the basis of her evidence in this hearing that she worked in excess of 20 hours each week. Ms Betts claimed in her written statement that she worked, on average, in excess of 23 hours per week from Monday to Sunday from 8.30am to 1.00pm. They were at first the only cleaners for the motel. However, late in 2010 Mr Eivers and his wife were appointed as managers for the motel and their working arrangements appear to have changed.
[12] At that time they were told by Mr Eivers that they would not be called in to work on Sundays in future and later that he did not want Ms Ferguson and Ms Betts to work together. From that time the arrangement of work became much more casual and changed at very short notice. Ms Ferguson and Ms Betts claim that they received a number of text messages from Mr Eivers and his wife from late in 2010, ie on Tuesday, 7 December, 2010:
"Hi girls, no need to come in tomorrow. Thanks anyway. Enjoy the day."
[13] And on Wednesday, 8 December, 2010:
"Hi girls, can you both come in tomorrow but don't come in until 10.00am Please don't come in before then."
[14] And on Thursday, 9 December, 2010 [at 8.41am]:
"Hi girls, everyone has gone. They're heading to Canberra. So if you want to come in now you can."
[15] And again on Thursday, 9 December, 2010 [at 7.03pm]:
"No need to come in tomorrow. Thanks anyway."
[16] And on Saturday, 11 December, 2010 [at 7.25am]:
"No need to come to work today."
[17] And again on Saturday, 11 December, 2010 [at 8.43pm];
"No need to come in tomorrow. I am going to be doing the cleaning as we don't have many rooms out. I'll text you if I need you."
[18] According to Ms Ferguson and Ms Betts, that was the last contact they had from the motel management. Their s.394 applications were lodged on Tuesday, 21 December, 2010, ie 12 days later.
Conclusion
[19] Whether or not an employee is a casual employee (as distinct from a permanent or part-time employee) becomes a matter for consideration in the light of the facts concerning the employment contract. Often the expressions "casual" and "part time" have no fixed meaning, dependent upon the circumstances of each case and frequently the term "casual" is used to denote arrangements which, in fact, are not casual. Care must always be exercised to distinguish permanent part-time employment which is not irregular from employment which is irregular and thereby properly regarded as casual [Uzcateguigayman v. Hospitality Horizons (1997) 75 IR 206 at p.207].
[20] Moore J of the Federal Industrial Court in Reed v. Blue Line Cruises Limited (1996) 73 IR 423 commented as follows in that respect (at p.425);
"...What then, is likely to have been the feature of the employment at the time of the engagement that would characterize it as an engagement on a casual basis? Plainly it involves a notion of informality or flexibility in the employment following the engagement... A characteristic of engagement on a casual basis is, in my opinion that the employer can elect to offer employment on a particular day or days and, when offered, the employee can elect to work. Another characteristic is that there is no certainty about the period over which employment of this type will be offered. It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual..."
[21] In terms of s.384(1):
"An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at the time as an employee."
[22] And s.384(1) goes on to provide:
"However:
(a) a period of service as a casual employee does not count towards the employee's period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continued employment on a regular and systematic basis; and
(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that the period of service with the old employer would not be recognised;
the period of service with the old employer does not count towards the employee's period of employment with the new employer."
[23] The provisions of s.384(2)(b) are, of course, not relevant in this hearing. But the provisions of s.384(2)(a) clearly are. The provisions of s.384(2)(a) recognise and provide protection to a casual employee engaged on a regular and systematic basis — and that appears to me to have initially been the conditions under which Ms Ferguson and Ms Betts were engaged by the motel.
[24] Mr Eivers clamed that there were occasional breaks in the employment of Ms Ferguson and Ms Betts during their employment to support his argument that there was no "...regular and systematic..." employment for them for the purposes of s.384(1)(a). That claim is denied by Ms Ferguson and Ms Betts, however, and there is nothing to challenge their evidence given under oath that was not the case. Furthermore Mr Eivers is speaking of a period of employment prior to his employment as manager of the motel and he had produced no evidence to support his claim and rebut what has been given under oath by Ms Ferguson and Ms Betts.
[25] In Ryde-Eastwood Leagues Club Limited v. Taylor (1994) 56 IR 385 the Full Bench of the New South Wales Industrial Relations Commission (Bauer and Hungerford JJ and Murphy CC) gave a useful illustration (at p. 399) of the type of employment situation which I believe also provides a guide to the interpretation of s.384(2)(a), viz:
"…In principle, and using the technical terminology of contract, an enforceable contract may readily be drawn, namely - in consideration of a payment by X to Y, in accordance with the relevant award or enterprise agreement for work actually performed, X agrees to employ Y as a casual employee on work as mutually agreed as and when it arises from time-to-time pursuant to a weekly roster published by X at least seven days in advance of such work and Y agrees to make himself available to perform such work subject to the release of Y allowed by X for illness, holidays and other reasonable cause. Such a contract, in our opinion, would represent an appropriate common law contract of employment to give effect to an on-going or continuing enforceable contract of casual employment. It would not conflict with nor be contrary to the award there. We think that, if the employer to such a contract, X, declined during the course of its operations to offer further work to the employee, Y, then there would be a dismissal from employment of Y in the relevant sense..."
[26] Both Ms Ferguson and Ms Betts recorded in their s.394 application that they were dismissed effective from Thursday, 9 December, 2011. Whilst they at no time were told that they were dismissed — and Mr Eivers asserts that they were not — from that date they had simply not been picked up to work. It would be natural for Ms Ferguson and Ms Betts to assume from that fact that they were dismissed. It is not sufficient for Mr Eivers to say, as he has in his e-mail to me, that they were still employed and that he had offered them to return to work — albeit I would believe on a very casual basis. I am satisfied that from the evidence before me from Ms Ferguson and Ms Betts that from the outset they were both engaged on a regular and systematic basis only to have the terms of their employment altered unilaterally to a most casual arrangement from which they were not being picked up for work at all, or at least picked up on a very limited basis only. That constitutes such a fundamental change to the employment conditions under which they were formerly engaged as to effectively support Dr Thornton's submission that they had been dismissed, in my opinion.
[27] And I am also satisfied that their dismissal was unfair — "harsh", "unjust" or "unreasonable" in terms of s.385(b). There appears to be no valid reason given for the effective termination of their contract of employment [s.387(a)] and they were given no notice of it [s.387(b)] or a chance to respond to any allegations made against them [s.387(c)]. Indeed, on the contrary, there does not appear to have been any adverse comments made concerning their employment at all. They were simply not being picked up for some unexplained reasons.
[28] I presume that the motel is a small business, ie one that employs less than 15 employees [s.23]. But I am satisfied on the basis of the evidence before me that both Ms Ferguson and Ms Betts had in excess of the minimum twelve months of employment required by s.383(b): Ms Betts asserts that she commenced employment with the motel on Monday, 2 March, 2009 and Ms Ferguson asserts that she joined her to work at the motel on Sunday, 2 August, 2009.
[29] In the case of Ms Ferguson, Mr Eivers has claimed that she had less than twelve months of employment with the motel but he has not been able to produce any evidence to rebut Ms Ferguson's assertions. In any event as part of her evidence in this hearing Ms Ferguson has supplied a payment summary which, whilst it does not go back as far as Sunday, 2 August, 2009, commences the pay period at Thursday, 26 November, 2009, in excess of the twelve month period required by s.383(b).
[30] In my opinion, any question of fairness should be measured against the size and relative sophistication of the employer. The Full Bench of the New South Wales Industrial Relations Commission (Hill and Marks JJ and McKenna CC) in Mason v. Electricity Commission of New South Wales (1995) 62 IR 436 heard, and dismissed, an appeal against a decision at first instance to refuse a claim by a dismissed employee for reinstatement in employment. In particular, Marks J commented (at p.457) that:
"…due allowance must be made for the degree of sophistication which one can reasonably expect of the particular employer, given the size of the employer's operations, the resources available to the employer, the location of the particular employer's business operations, the facilities available to the employee by way of union representation or otherwise and like matters…"
[31] But at the same time, a small business employer does not have a licence to act unfairly to its employees and under the regime of FWA there is a Small Business Fair Dismissal Code with respect to small businesses which dismiss an employee. The dismissal of an employee of a small business is unfair, in terms of s.385(c) if it was carried out in a manner not consistent with that Code. I believe that the dismissal of Ms Ferguson and Ms Betts was not conducted in conformity with the Code.
[32] As to the question of a remedy for Ms Ferguson and Ms Betts, the FW Act provides the remedies of reinstatement or, alternatively, monetary compensation, with that latter remedy only being available if reinstatement is impracticable [ss.390, 391 and 392]. Neither Ms Ferguson nor Ms Betts are seeking to return to work for the motel and I regard any return to work for the motel to be impracticable. Their claim is confined to monetary compensation alone.
[33] The criteria for deciding the amount of compensation is set out in s.392(2), viz:
0
[34] And s.392(3) provides:
"If FWA is satisfied that misconduct of a person contributed to the employer's decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (i) by an appropriate amount on account of the misconduct."
[35] The provisions of s.392(3) are not relevant in this hearing. Ms Ferguson claims that she earned from approximately $400.00 to $450.00 gross per week whilst she worked for the motel. Ms Betts claims that she earned on average $157.39 gross weekly. Mr Eivers has indicated in his e-mail to me Ms Betts has found alternative employment since she ceased work for the motel. Ms Betts refutes that claim, indicating in her evidence that, whilst she sought employment with the employers and performed work trials for the George Bass Motel and the Spring Resort, she did not obtain employment. Ms Ferguson has taken up studies which occupy her for three days each week and she is not seeking employment at the present time.
[36] After the hearing had concluded on Wednesday, 8 June, 2011, Mr Eivers forwarded to me correspondence by facsimile transmission attaching a letter from the Spring Resort which indicates:
"...This is to inform you that Leanne Betts is currently employed as a casual housekeeper by Spring Resorts Shoalhaven and her commencement date was Friday, 18 February, 2011..."
[37] Mr Eivers also commented in his correspondence that he was awaiting similar information from the George Bass Motel concerning the employment of Ms Betts with it. Information of that nature, obtained after the hearing of the matter had concluded, is not something on which I may properly rely. Moreover, whether or not Ms Betts remains on the books of either the Spring Resort or the George Bass Motel is not the relevant consideration for me in the assessment of the appropriate level of monetary compensation for an unfairly dismissed employee. It is the efforts she has made to mitigate her loss of earnings and the amount of actual wages earned from such employment. So the letter from the Spring Resort really adds nothing to my considerations of the matter.
[38] In particular, having regard to the provisions of s.392(2) and the guidelines set out by the Full Bench of the former Australian Industrial Relations Commission (Munro J, Duncan DP and Jones C) in Sprigg v. Paul's Licensed Festival Market (1998) 88 IR 21 at p.24, I have concluded that Ms Ferguson should receive the sum of $1,050.00 and Ms Betts should receive the amount of $2,500.00. I make a separate order to that effect.
COMMISSIONER
Appearances:
Stephen Thornton for applicants
(Jake Boghossian of Connect Legal for applicants, subsequently ceasing to act)
Mr Adam Eivers for the respondent
2011
Wollongong
June 8
Decision Summary
TERMINATION OF EMPLOYMENT – casual – Small Business Fair Dismissal Code – s394 Fair Work Act 2009 – applicants employed as cleaners – care must always be exercised to distinguish permanent part-time employment which is not irregular from employment which is irregular an thereby properly regarded as casual – applicants employed on a systematic and regular basis – alleged applicants not dismissed – applicant terms of employment altered unilaterally – dismissal harsh, unjust or unreasonable – no valid reason for dismissal – respondent a small business – question of fairness should be measured against the size and relative sophistication of the employer – dismissal not conducted in conformity with Small Business Fair Dismissal Code – monetary compensation ordered. | ||||
Ferguson and Anor v Pleasant Way Motel P/L | ||||
U2010/2096 and Anor | [2011] FWA 3815 | |||
Connor C | Wollongong | 17 June 2011 | ||
Citation: Ferguson and Anor v Pleasant Way Motel P/L [2011] FWA 3815 (17 June 2011) | ||||
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