LO v Royal Express Pty Ltd

[2019] FCCA 1197

FEDERAL CIRCUIT COURT OF AUSTRALIA

LO v ROYAL EXPRESS PTY LTD [2019] FCCA 1197

Catchwords:
INDUSTRIAL LAW – SMALL CLAIMS – Storage Services and Wholesale Award 2010 – consideration of genuineness of payslips provided by applicant and respondent – consideration of actual hours worked by applicant – application dismissed.

Legislation:
Fair Work Act 2009 (Cth), ss.536, 548(1A)
Federal Circuit Court Rules 2001 (Cth), r.45.11
Storage Services and Wholesale Award 2010, cls.4.1, 11, 22, 23.1, 24

Applicant: WEI-CHUAN LO

Respondent: ROYAL EXPRESS PTY LTD

File number: MLG 2795 of 2018

Judgment of: Judge Mercuri

Hearing date: 12 November 2018

Date of last submission: 12 November 2018

Delivered at: Melbourne

Delivered on: 15 May 2019

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. The applicant’s application filed 18 September 2018 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2795 of 2018

WEI-CHUAN LO

Applicant

And

ROYAL EXPRESS PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction and claims

1. This application came before the court in its small claims jurisdiction under the Fair Work Act 2009 (Cth) (“the Act”). The applicant alleges that the respondent:

   a)failed to pay him at the appropriate rate of pay as prescribed in the Storage Services and Wholesale Award 2010 (“the Award”);

   b)failed to reimburse him for various expenses incurred in the course of his employment; and

   c)did not provide appropriate meal breaks. 

2. As the quantum of the applicant’s claims exceeds the court’s small claims jurisdiction, the applicant has limited his claim to $20,000.

Background

1. The respondent is a logistics company and the applicant was employed from the beginning of April 2016 until mid-September 2016.[1] The applicant alleges that he was initially employed on a full time basis and then, from June 2016, as a casual. He says however, that he only became aware of the change in his status when he reviewed his payslips. He says that he was not provided with an employment contract when he commenced employment, nor was he advised of the nature of his employment or indeed that his employment changed from full time to casual.

   [1] Applicant’s application filed 18 September 2018.

2. Moreover, the applicant says that he was paid the same rate of $20 per hour regardless.

Small claims jurisdiction

1. This claim is brought in the court’s small claims jurisdiction pursuant to section 548 of the Act. Small claims proceedings can only be dealt with if:

   a)an applicant indicates that they wish to have their matter dealt with as a small claim; and

   b)

   importantly, the claim relates to an amount referred to in

   
   

   section 548(1A) of the Act that an employer was required to pay to or on behalf of an employee under the Act or a fair work instrument.

2. The applicant claims that his employment was covered by the Award. Whilst there are many disputed issues in this matter, the respondent conceded that the applicant was employed by the respondent and that his duties mainly involved working in the warehouse. The respondent said that the applicant was very rarely required to transport cargo to the airport as alleged.

3. The Award relevantly provides that it covers “employers throughout Australia in the storage services and wholesale industry and their employees in the classifications listed in clause 14.”[2]

   [2] Storage Services and Wholesale Award 2010, clause 4.1.

4. In light of the applicant having abandoned that part of his claim in excess of $20,000, this claim clearly falls within the court’s jurisdiction. I turn then to consider each of the applicant’s claims.

Evidence

1. The applicant gave evidence with the assistance of an interpreter in the English and Mandarin languages. 

2. The respondent was represented by Mr Huang who gave evidence in his capacity as a director of the respondent.

3. The respondent gave the following evidence which was not challenged or contradicted in any way by the applicant. He stated that the respondent commenced trading in about 2014. The applicant and another

   
   

   9 or 10 employees were originally employed by a contractor to the respondent. Mr Huang stated that in 2016, the respondent was having some difficulties with the contractor and it appears that the contractor ceased trading in early 2016. 

4. Mr Huang also gave evidence that he was concerned about protecting the respondent’s reputation and therefore it was determined that the employees of the contractor would be offered employment directly with the respondent. Mr Huang further stated that although the respondent had no obligation to do so, it paid outstanding wages owed by the contractor to the applicant and the other employees who then took up direct employment with the respondent. He said that this amounted to approximately two weeks unpaid wages to each employee.

5. Mr Huang also gave evidence that when the applicant was employed in April 2016, the respondent did not document the nature of his employment, his hours of work, duties or his rate of pay. He said:

   …at the beginning I wasn’t sure because I… was under a lot of pressure around that time… because the contractor was a main contractor for us and… he, after he went away and everything stopped and so it was a… harsh… transition… our accountant just put a full-time employment or something like that in there…[3]

   [3] Transcript page 17 at lines 40 to 45.

6. Mr Huang also confirmed that there was no discussion about whether the employees would be employed on a full time or casual basis or indeed move from one type of employment to another. 

7. The applicant submitted with his application each of the payslips which he says he received whilst employed by the respondent. These payslips relevantly state for the period from 1 April 2016 to 31 May 2016:

   Employment Basis: Full-time employment[4]

   [4] Exhibit A.

8. From 1 June 2016 to 31 August 2016 the payslips then relevantly state:

   Employment Basis: Casual[5]

   [5] Exhibit A.

9. The applicant said that no one told him that his employment altered from full time to casual. Rather, he said that he became aware of it when he reviewed his payslips.

10. It should also be noted that the payslips which refer to the full time period of employment contained a notation entitled ‘Annual Salary’. The first payslip for the period 1 April 2016 to 16 April 2016 states that the annual salary is $52,222 but subsequent payslips refer to an annual salary of $62,400. Neither party explained this variation.

11. Moreover, an annual salary of $62,400 equates to an hourly rate of pay of $31.58 for a standard 38 hour week. Neither party suggested that this was the rate of pay paid to the applicant.  Rather, the applicant says that he was paid $20 per hour and the respondent says the applicant was paid $40 per hour. 

12. At the hearing, Mr Huang produced his own set of payslips for the applicant for the relevant period. He conceded that these were in fact not the payslips provided to the applicant but that he had printed them off the respondent’s system for the purposes of the hearing. This appears to explain why the payslips he produced[6] have the respondent’s current address whereas the payslips produced by the applicant have the respondent’s trading address at the time that the applicant was employed there. 

    [6] Exhibit A.

13. Mr Huang also produced various print outs from the respondent’s payroll system which he says evidenced the fact that the payslips he produced were genuine.[7] This purported to demonstrate that each of the payslips were last edited immediately before the respective pay run at the time payment was made. The respondent’s position was that the payslip documents produced by the applicant were not genuine. 

    [7] Exhibit A at pages 19 to 28.

14. It is clear that one of the parties has produced documents to the court which are not genuine. It is also clear that the differences between the payslips produced by the applicant and respondent are:

    a)the hourly rate specified; that is, in the applicant’s set of payslips the hourly rate is $20 whereas in the respondent’s payslips the hourly rate is specified to be $40 per hour; and

    b)the number of hours claimed to have been worked in the payslips produced by the applicant is twice that specified in the respondent’s set of payslips.

15. The respondent argued that the applicant’s payslips should not be accepted for the following reasons:

    a)the applicant was the subject of a disciplinary process at the conclusion of his employment as the respondent formed the view that he had been involved in certain stock being taken and the respondent referred this matter to the police for investigation;

    b)the documents produced by the respondent[8] further support the respondent’s assertion as to the hours worked and rate of pay provided to the applicant. I have had particular regard to the ‘last edited’ column which it is said demonstrates that the payslip as issued was last edited contemporaneously with its issue and supports the respondent’s submission that they have not been tampered with in response to these proceedings;

    c)

    the sheer number of hours claimed to have been worked by the applicant is improbable at best. For example, for the period from

    
    

    1 June 2016 to 16 June 2016, the applicant claimed to have worked 169 hours in a two week period. That is over 84 hours each week. Moreover, in the period 17 May 2016 to 31 May 2016, the applicant claims to have worked 238 hours in a period of just over two weeks; and

    d)the applicant acknowledged that he had received some of the documents which he relied on from another employee who had worked for the respondent in the administration department. He conceded that that employee had also been the subject of allegations arising from the missing stock. As that employee had taken documents which belonged to the respondent without consent, it was submitted that the documents could have been manufactured.

    [8] Specifically, Exhibit A at pages 19 to 28.

The Award

1. There is no dispute that the Award applied to the applicant’s employment and that his employment should have been classified as a Grade 1 store worker. A representative of the Fair Work Ombudsman who appeared at the hearing as amicus curiae confirmed that the hourly rate of pay for such a worker was:

   a)$18.47 per hour on commencement and then $18.70 per hour after three months as a full time employee; and

   b)$23.09 per hour on commencement and then $23.38 per hour after three months as a casual.

2. The Award relevantly provides as follows:

   11.1An employee is to be engaged as a full-time, a regular part-time or a casual employee.

   11.2       A full-time employee is one engaged and paid by the week.

   ...

   11.4

   (a)A casual employee is one engaged and paid as such and will be guaranteed not less than four hours’ engagement every start.

   (b)Casual work will be paid for at the ordinary wage rate with an addition of 25%.

   …[9]

   [9] Storage Services and Wholesale Award 2010, clause 11.

3. The Award deals with hours of work in clause 22. In substance, it provides that the ordinary hours of work will be an average of 38 hours per week spread over a period of four weeks. It also provides that ordinary hours will be worked over four or five consecutive days and worked between the hours of 7:00am and 5:30pm. Clause 22 of the Award also provides for rostered days off and make up time.

4. Clause 23.1 of the Award provides that an employee cannot be required to work more than five hours without a meal break of not less than

   
   

   30 minutes or more than one hour and that a 10 minute morning and afternoon rest period will be provided to employees and taken at a time fixed by the employer.

5. Clause 24 of the Award then deals with overtime payment and penalty rates. In essence, it provides that all time worked in excess of or outside the ordinary hours of work prescribed by the Award are to be paid at the rate of time and a half for the first two hours and then double time after that. Clause 24.5 of the Award also provides for penalty rates for time worked on weekends and public holidays.

Issues

1. There are two key issues in this case:

   a)firstly, what the terms of the applicant’s employment were and more specifically, whether he was paid $20 per hour as claimed by him or $40 per hour as claimed by the respondent; and

   b)secondly, the hours worked by the applicant.

2. In coming to a decision on both of these issues, it is necessary to determine which of the payslips produced are genuine, those produced by the applicant or respondent.

Analysis and findings

1. The applicant gave evidence through an interpreter. In such circumstances it can be difficult to assess credibility. However, I do make the following observations.

   a)The applicant did not advise the court of the circumstances in which his employment came to an end, namely that allegations had been made against him regarding the loss of some stock. Whilst it is not a matter for me to determine whether he had any part to play in that, his failure to explain that situation gives rise to some concerns about whether he comes to court with clean hands.

   b)The applicant conceded that he obtained documents from another former co-worker who appears to have taken documents belonging to the respondent without the respondent’s consent. Again, this goes to the applicant’s credit. Furthermore, the fact that the respondent asserted that this other employee was also the subject of interest in relation to the alleged stock issue raises concerns.

   c)The applicant did not advise the court that he had been interviewed by the police about the alleged stock loss until after the respondent raised the issue. Again, this goes to his credit.

   d)Finally, the number of hours alleged to have been worked by the applicant over the course of his employment do seem to have been consistently excessive to the point of being improbable. I refer to the discussion about the May/June period above. 

2. The applicant’s evidence needs to be weighed against the evidence provided by the respondent. 

3. Mr Huang gave evidence on behalf of the respondent, which I accept, about the circumstances in which he came to employ the applicant and the fact that he was concerned to ensure that there was continuity in service following the contractor ceasing to trade.

4. I have also had regard to the fact that the respondent produced not only the payslips which it says reflects the payment actually made to the applicant and the hours he worked but also produced further computer records which clearly show that those records have not been edited since the dates on which they were prepared.

5. Interestingly, Mr Huang also gave evidence, which I accept, that the respondent did not provide payslips to the applicant but rather they were prepared and not emailed to staff. This evidence was given despite the fact that it is somewhat counter to the respondent’s interests given the respondent’s obligation to provide payslips to employees within one working day of paying the employee under section 536 of the Act. However, this clearly explains why the payslips produced have the respondent’s current address and not the address from which the respondent operated at the time it employed the applicant.

6. As stated above, this proceeding arises in the court’s small claims jurisdiction. Rule 45.11 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) clearly provide that the court is not bound by the rules of evidence in a small claims proceeding and may deal with such a claim in an informal manner. Having said that, it is nonetheless necessary for the applicant to make out his claim to the requisite standard of proof; that is, on the balance of probabilities.

7. For the reasons set out above, I am not satisfied that the applicant has proven that he was paid a flat rate of $20 per hour for the duration of his employment and thereby has not established that he was underpaid his entitlements. There is evidence before the court, which cannot be dismissed, that the applicant was in fact paid $40 per hour (well in excess of the minimum award rate) and that he worked significantly less than the hours claimed.

8. In those circumstances, the applicant’s claim is not made out and I therefore order that it be dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate: 

Date:       15 May 2019