KING v HAY - [2012] FMCA 703

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KING v HAY

[2012] FMCA 703

INDUSTRIAL LAW – Fair Work small claims – whether the applicant was entitled to unpaid wages.

Applicant:

NICOLE KING

Respondent:

AMANDA HAY

File Number:

SYG 495 of 2012

Judgment of:

Emmett FM

Hearing date:

13 August 2012

Date of Last Submission:

13 August 2012

Delivered at:

Sydney

Delivered on:

13 August 2012

REPRESENTATION

The applicant appeared in person

The respondent appeared in person

ORDERS

Judgment be entered for the applicant in the sum of $6,300.
The respondent pay the costs of the applicant fixed in the amount of $4,200.
The proceeding before this Court, commenced by way of application filed on 6 March 2012, is otherwise dismissed.

NOTE: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 495 of 2012

NICOLE KING

Applicant

And

AMANDA HAY

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is a claim, inter alia, for wages that the applicant alleges were owed to her by the respondent for work done at the respondent’s business premises between 28 February 2010 and 5 November 2010.
The applicant filed an application on 6 May 2012 together with a Form 5 document in which she set out the full extent of her claim. In that Form 5, the applicant claimed the following amounts:
Wages $7, 436.25
Saturday loadings $47.30
Sunday penalty $477.76
Public holidays $194.88
Overtime $2,828.21
The total amount claimed was $10, 984.40. The applicant claimed to be a casual shop assistant. The respondent asserted that the applicant was an independent contractor.
In support of her application, the applicant read an affidavit by her, sworn 24 May 2012. The applicant deposed that she met the respondent while playing darts and they became friends. The applicant said that the respondent told her she had a café and asked if she wished to work for her in the café. The applicant agreed and commenced work in February 2010 for the respondent at one of two premises where the respondent had licenses to provide food and beverage services.
At the commencement of her work with the respondent, the applicant had no arrangement of the terms and conditions upon which she would be paid or the hours she would work. The applicant said she made no such enquiry because the respondent was a friend and she trusted her. The applicant said that she prepared food, as well as tea and coffee, served customers, handled money and cleaned.
The applicant said that the respondent would give her cash from time to time and that each day she would enter into her phone the hours that she had worked.
The applicant said that at some stage during her work with the respondent she asked what was her rate of pay and was told by the respondent that it was $15 per hour when she worked at the café and $10 per hour when she worked at the canteen, except on race day when she was to be paid $20 per hour. The applicant only ever worked at the canteen during weekends as and when required by the respondent.
The applicant said that she would arrive at the café when she had dropped her children at school and start preparing the food. She said the respondent was present when she arrived, and that she, the applicant, would leave between 2.30 and 3pm.
The applicant said that she never received a pay slip from the respondent and on one occasion it was more than thirty days before she received any money for days worked in that period.
During the period of employment, the applicant said that the respondent also employed Ms Olafson between May 2010 and July 2010.
The applicant read an affidavit of Katherine Olafson, sworn 31 May 2012. Ms Olafson deposed that the applicant would already be working when she arrived at the café between 9.30 and 10am and would still be working at the café when Ms Olafson left at around 2.30pm.
In cross-examination, the respondent put to Ms Olafson that she had been paid fully on a casual basis. Ms Olafson agreed and said that she had worked every day during the June and July school holidays.
The respondent put to Ms Olafson that her “register” said that Ms Olafson had not worked every day. Ms Olafson said that at the time she ceased employment with the respondent in July 2010 she was owed approximately $300 which was eventually paid on 21 December 2010. Mr Olafson responded that the respondent did not keep a log because she would regularly ask Mr Olafson the hours that she had worked.
The applicant deposed that on or about 7 November 2010, her son was admitted to hospital, following which she was not offered any more shifts by the respondent.
The applicant annexed to her affidavit copies of the calendar on her mobile telephone indicating the dates when she worked for the respondent during the period June 2010 to November 2010. From that information, the applicant prepared hand written calculations, a copy of which she gave to the respondent in late November 2010. Those calculations indicated that it was the applicant’s belief that at that time she was owed $6,300 by the respondent. A copy of those calculations is annexed to her affidavit.
The respondent did not dispute in writing the applicant’s calculations of the amount owed or that such an amount was owed. Annexed to the applicant’s affidavit are text messages from the respondent indicating that she did not have the cash to pay the applicant.
On 10 January 2011, the respondent wrote to the applicant indicating that payment would be made on the return by the applicant of a set of keys for the canteen and a black polo shirt.
The respondent read an affidavit sworn by her on 14 June 2012. The respondent’s affidavit deposes that upon being presented with the applicant’s wages claim, she told her that the claims were “ridiculous and that amount was not owed”.
However, the evidence of the respondent’s affidavit is at odds with her written communications to the applicant. The respondent’s letter to the applicant, dated 10 January 2011 and annexed to her affidavit, clearly does not dispute the amount claimed by the applicant and relevantly states that:
“Please be advised for payment of duties carried out for the above business please provide the following:
Current ABN for payment.
Current banking details for direct deposit to your account.
Payment shall be made on the return of items held by you, which are the property of the Illawarra Business Sampler.
1 x set of keys for the premised Wollongong Motorcycle Canteen
1 x Black polo shirt.”
In the circumstances, I find that the only reasonable inference to be drawn from the respondent’s letter dated 10 January 2011 is an admission by the respondent that she did not dispute that the applicant was owed the amounts claimed be her in her calculations provided to the applicant in late November 2010. Further, any wages owed by the respondent could not be withheld legally from the applicant pending the return of keys and a polo shirt.
Accordingly, I am satisfied that the applicant worked the hours claimed by her in her calculations and was entitled to be paid at the hourly rate claimed by her in her calculations.
The applicant told the Court that she withdrew her claim over and above the $6,300 as per her calculations. In light of the applicant’s revised claim, it is not necessary to determine whether the applicant was employed as an independent contractor or as a casual employee because if the applicant was employed as an independent contractor, she was entitled to the amounts claimed in her calculations.
In the circumstances, I find that the respondent owes the applicant for work done by the applicant at business premises run by the respondent between 28 February 2010 and 5 November 2010 in the amount of $6,300.
Accordingly, judgment should be entered for the applicant in the amount of $6,300 plus costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 13 August 2012