Mavrelis v GJ and K Cleaning Services Pty Ltd
[1996] IRCA 506
•20 September 1996
DECISION NO:506/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - whether EMPLOYMENT CONTRACT terminated by employer -VALID REASON - WAGES IN LIEU OF NOTICE - failure to mitigate loss - whether TEMPORARY ABSENCE on account of ILLNESS a reason - BREACH OF AWARD - ACCRUED JURISDICTION - ESTOPPEL - whether employer estopped from recovering amounts allegedly overpaid.
Industrial Relations Act 1988 (Cth) ss170DB, 170DE, 170DF, 170EE.
MAVRELIS v G J & K CLEANING SERVICES PTY LTD
VI95/6324
Before: MURPHY JR
Place: MELBOURNE
Date of hearing: 19 & 20 SEPTEMBER 1996
Date of judgment: 20 SEPTEMBER 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI95/6324
BETWEEN:
ANTHOULA MAVRELIS
Applicant
AND
G J & K CLEANING SERVICES PTY LTD
Respondent
BEFORE: MURPHY JR
PLACE: MELBOURNE
DATE: 20 SEPTEMBER 1996
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The applicant’s claim under s170EA is dismissed.
The respondent pay to the applicant the sum of $10,000 and $170.96 interest.
The respondent pay the costs thrown away on 30 July, fixed in the sum of $2,893.82.
The respondent’s counterclaim is dismissed.
There is a stay of 21 days on each of the orders.
Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI95/6324
BETWEEN:
ANTHOULA MAVRELIS
Applicant
AND
G J & K CLEANING SERVICES PTY LTD
Respondent
BEFORE: MURPHY JR
PLACE: MELBOURNE
DATE: 20 SEPTEMBER 1996
REASONS FOR DECISION
Delivered ex tempore - revised from the transcript
The applicant by way of an application issued on 20 December 1995 seeks a remedy pursuant to s170EA of the Industrial Relations Act (“the Act”). The applicant also claims in the accrued jurisdiction of the court for breaches of the Building Services Award (“the Award”). The respondent has filed a counter claim seeking recovery of amounts overpaid to the applicant in the course of her employment.
The applicant alleges that her employment was terminated in contravention of the Act on 2 October 1995. She seeks reinstatement to her position as a cleaner with the respondent. The respondent denies that it has terminated the applicant's employment and maintains, on the contrary, that the applicant has abandoned her employment. The applicant's statement of claim alleges that she was not paid at the appropriate rate under the Award for weekend work, public holidays, rostered days off, an airport location allowance, and for annual leave. She also claims that her hourly rate was dropped without notice for a period of some eight weeks from 4 August 1995. She seeks to recover an amount for the unilateral reduction in her hours.
There was a great deal of evidence in the proceeding, much of it in conflict. Without going to the evidence in detail I should indicate that I prefer the evidence of the respondent's witnesses over the evidence of the applicant and her husband Mr Mavrelis. Both the applicant and her husband were non-responsive and evasive witnesses and I am satisfied that where there is a conflict on the evidence, the evidence of the respondent is to be preferred.
My preference for the evidence of the respondent over the applicant is relevant to the determination of the questions under the Act and, in particular, as to whether the respondent, at its initiative, terminated the applicant's employment.
The employment relationship between the parties ceased in the following circumstances. The applicant, when she commenced employment with the respondent, indicated to the respondent that she intended to have her husband, Mr Mavrelis, assisting her in performing the cleaning work. The respondent knew of this arrangement. I am satisfied that the arrangement continued until about the middle of 1995 when, as a result of complaints by Air Services Australia as to the quality of the cleaning work, actions were taken by the respondent to regularise the employment status of Mr Mavrelis. I am satisfied on the evidence of the respondent's witnesses, including Mr Rabel, Mr Tsimboulis and Mr Kwong, that there were consistent complaints about the standard of performance of the work performed by the applicant and her husband. In response to those complaints Mr Tsimboulis raised the matter with Mr Mavrelis and the applicant. I reject their evidence that these matters were not at any stage raised with them. I also accept Mr Tsimboulis's evidence that on a number of occasions he raised with Mr Mavrelis the fact that he was not on the payroll of the respondent, but Mr Mavrelis resisted regularising his status.
On 28 September Mr Mavrelis sustained a back injury in another job that he had and thus was unable to attend work with his wife that night. I am satisfied that he contacted Mr Tsimboulis and told him that he had suffered the injury and he would attempt to find someone to help his wife. When this was not done, he then contacted Mr Tsimboulis again and told Mr Tsimboulis that his wife would be unable to work as no-one would be able to drive her to the airport. I am satisfied that the applicant subsequently obtained a medical certificate, which at no stage did she proffer to the respondent, to the effect that she was sick. I am not satisfied that she was sick at that time in any event. Mr Tsimboulis then had to find alternative cleaners to cover the respondent's contract at the airport over the period 28, 29, 30 September and 1 October.
On 2 October I am satisfied that there was a conversation between Mr Tsimboulis and the applicant at which he told her that he was moving her to another site. I am satisfied that the conversation along similar lines of moving the applicant to another site had been held between Mr Tsimboulis and the applicant's husband on a number of occasions prior to that. I am satisfied that in that conversation the applicant resisted moving from the Tullamarine site, and then sought to speak to Mr Kourounis, a director of the respondent. I accept his evidence that he told the applicant that she had not lost her job but that she had been moved to an alternative site. I am satisfied that the applicant did not accept that advice, and that the applicant had then made no further attempt to contact the respondent in relation to employment.
I find Mr Mavrelis's explanation as to why he took no action to pursue the matter unsatisfactory. I am satisfied that the reason he took no action was that he resisted the fact that the respondent would only accept his wife back as an employee at another site on condition that his employment status with the respondent was regularised. I am satisfied that a few days after that the applicant commenced part-time employment with another cleaning company, Power Cleaners.
Termination at the initiative of the employer.
The first question for determination is whether the applicant's employment was terminated at the respondent’s initiative. I find that the applicant's employment has been terminated at the initiative of the respondent because, given the four year period of employment of the applicant at the airport on the basis that her husband substantially assisted her to complete the work, the respondent was required to give appropriate notice of a change in employment location.
The advice of Mr Kourounis that the applicant was being offered employment at an alternative site therefore did constitute an offer to vary the contractual relationship between them and required that there be notice given for that change. The same applies in relation to the earlier offers of alternative employment made by Mr Tsimboulis.
Notice.
The next issue is whether the Act has been breached. S170DB requires that an employee be given notice of termination of employment. Certain periods are set out. Under s170DB(1)(a) the employer must either give notice or pay compensation in lieu of notice. S170DB(4) provides that compensation instead of notice must equal or exceed the amounts that, if the employee's employment had continued until the end of the required period of notice, the employer would have become liable to pay to the employee because of the employment continuing during that period.
Here, because of the irregular nature of Mr Mavrelis’s status with the respondent, I am satisfied, given the evidence of Mr Rabel and Mr Tsimboulis, that the applicant would not have continued to work for the respondent without her husband assisting her. I am therefore satisfied that in any period of notice the respondent would not have been liable to pay the applicant any amount during that period. Therefore, I am satisfied that the respondent is not liable to pay the applicant anything pursuant to s170DB of the Act.
If I am wrong about this, I am satisfied that the applicant in any event has breached her mutual duty to the respondent to attempt to mitigate her loss by not contacting the respondent in response to the messages that were left with her by Mr Kourounis around 2 October.
If I am wrong about this, I am satisfied in any event that the respondent is entitled to rely on the principle that it is entitled to administer a contract of employment in a way most advantageous to it. The applicant resisted the proposed re-assignment of duties to the Essendon Tram Depot by asserting, wrongly, I am satisfied, that she was entitled to remain at Tullamarine Airport indefinitely. I am satisfied that in those circumstances the respondent would have then been entitled to place the applicant on annual leave, or required the applicant to take rostered days off until the expiration of any notice period. I propose to make no order for a remedy under s170EE(4) of the Act.
Valid Reason.
The next issue is whether the respondent has breached s170DE(1) of the Act. I am satisfied that the respondent has not breached s170DE(1) of the Act. Given the irregular status of the applicant's husband and the complaints that had been made in relation to the performance of the duties, on the evidence of Mr Tsimboulis and Mr Rabel, the respondent had valid reasons to request the applicant to transfer to another venue.
S170DF(1).
I am not satisfied that the respondent has breached s170DF(1) of the Act. I am not satisfied that the applicant was ill over the period 27 or 28 September, and further I am not satisfied that the fact that she was ill was ever conveyed to the respondent. It follows from this that I am not satisfied that s170DF(1) of the Act has been breached.
The claim in the associated jurisdiction by the applicant.
The respondent, as I have indicated, knew of the arrangement between the applicant and her husband. I am satisfied it knew, or ought to have known, that the applicant and her husband were discharging the cleaning duties in less time than the respondent was paying them. It follows from this that the respondent is, I am satisfied, estopped from now seeking as it does in its statement of counter-claim to recover hours that it alleged that the applicant and her husband had short-served it. It is estopped by its conduct in continuing to pay the applicant for hours that it knew that the applicant had not performed fully, and it knew that her husband had contributed too. This principle is also applicable to the argument made by the representative for the respondent that the claim by the applicant for an airport location allowance should be absorbed, at least partly, by the fact that the applicant was being paid more than the amount set out in the Award.
The first element of the applicant's statement of claim I will deal with is the claim for an airport location allowance. That allowance is provided for in clause 9(c) of the Award. The respondent raised no substantial arguments that the applicant was not entitled to the benefit of that allowance. The applicant claims the sum of $5,851.44 for that allowance over the period of her employment, and I am satisfied on the evidence that the applicant is entitled to an order for that amount.
Other elements of the applicant's claim can be dealt with together. The respondent is deemed to know the contents of the Award. The respondent chose to pay the applicant certain amounts per week, and for weekend work, that did not comply with the Award. There are authorities in various industrial tribunals to the effect that amounts paid by an employer cannot be offset against Award entitlements absent some agreement between the parties. It follows from this that I am satisfied that the applicant has made out a number of additional monetary claims for non-compliance with the Award.
The first of those claims was for weekends. The applicant claimed additional payments for the 12 months to 27 September 1995 for Saturdays and for Sundays. The claim for Saturdays is calculated in the amount of $603.20 and the claim for Sundays is calculated in the amount of $2,412.80. I am satisfied that the applicant has made out her entitlement to those amounts and I make orders for those two amounts.
The applicant also claimed that she had not been paid for public holidays. She gave evidence that she had worked every day for the previous 12 months. The respondent produced a sign-in book that the applicant and her husband would sign for weekend work, but not sign during the week. It indicated that they had not signed for 31 December 1994 and 1 January 1995. Save for those two days I am satisfied that the respondent has not paid the applicant her entitlements for public holidays pursuant to the Award. Instead it has payed the applicant at a normal rate even though she was working on public holidays that fell during the week, and on weekends. I am satisfied that the applicant has therefore made out a claim for $1,044 for eight week days and $46.40 for one Saturday. In relation to one Sunday public holiday I am satisfied she has made out a claim for $17.40 as an additional amount, and, subject to the limit of my jurisdiction, I will make orders for those amounts.
The applicant claimed that the respondent, from 4 August 1995 until she ceased employment with the respondent on 27 September 1995, had unilaterally reduced her hours of work. The evidence in relation to this was unsatisfactory and inconclusive. I am not satisfied that the applicant has made out any claim that there has been a unilateral reduction in the hours paid to her in breach of the contract of employment between the parties. I decline to make any award in relation to that claim.
The applicant has claimed four weeks annual leave. She gave evidence of an arrangement that she was required to work during her annual leave. Mr Kourounis gave evidence that the applicant had requested that she be paid her annual leave, but be allowed to continue working, and be paid her normal pay as well. Such an arrangement is in breach of the Award. I am satisfied that any moneys that the respondent has paid to the applicant pursuant to that arrangement cannot be offset against the applicant's entitlement to annual leave upon termination. I am therefore satisfied that the applicant has made out her claim for $2,263.44 for four weeks annual leave at the rate claimed.
I am not satisfied that the applicant is entitled to any annual leave loading as annual leave loading is only paid to recompense for loss of overtime and other allowances while the employment relationship remains on foot.
The applicant also claimed rostered days off on the basis that under the Award she was entitled to a maximum accrual of ten days per annum. It is difficult to provide a legal basis for her entitlement to those amounts given the fact that they appear to only apply while the contract of employment remains on foot. Further, in relation to rostered days off, had the applicant pressed for rostered days off during the course of her employment it is not unreasonable to expect that the employer may have taken the point about the applicant failing to work the hours that the respondent was paying her. On that basis I am not satisfied that the applicant has made out any claim for rostered days off.
The respondent’s counterclaim.
To finalise the matters between the parties, the only other matter is the respondent's counterclaim. This relates to the hours that the respondent alleges that the applicant failed to work but was paid for. The amount claimed for those hours was the sum of $16,440 with the claim reduced to the $10,000 limit of the judicial registrars' jurisdiction. For reasons that I have indicated earlier, I am satisfied that the respondent is estopped from pursuing that claim against the applicant and I therefore dismiss the counterclaim of the respondent.
The amounts that I have found that the applicant has made out exceed the jurisdiction of a judicial registrar; they total $12,238.68. The applicant's counsel abandoned any claim above $10,000, so the order that I will make on the applicant's statement of claim is that the respondent pay to the applicant the sum of $10,000. I make a further order that the respondent pay the costs thrown away on 30 July, fixed in the sum of $2,893.82. I order that the respondent pay the sum of $170.96 in interest. There is a stay of 21 days on each of the orders.
I certify that this and the preceding nine (9) pages
are a true copy of the reasons for decision of
Judicial Registrar Murphy as recorded in the transcript
and revised by the Judicial Registrar.
Associate: KAREN HALSE
Dated: 20 September 1996
APPEARANCES
Counsel appearing for the applicant: Mr G DEVRIES Solicitors for the applicant: ADAMS MAGUIRE SIER Respondent’s Authorised Representative: MR J OLSEN Dates of Hearing: 19 & 20 September 1996 Date of Judgment: 20 September 1995
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