Mbuzi v World Vision Australia
[2024] FedCFamC2G 651
•11 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mbuzi v World Vision Australia [2024] FedCFamC2G 651
File number(s): BRG 167 of 2024 Judgment of: JUDGE VASTA Date of judgment: 11 July 2024 Catchwords: INDUSTRIAL LAW – Small Claims – where applicant submitted he should have been placed at a higher level because of experience and qualifications – where the position was clearly an entry level position – where the applicant claimed he did not ever take a paid tea break and was not told that he could take such a tea break – application dismissed Legislation: Fair Work Act 2009 (Cth) Division: Division 2 General Federal Law Number of paragraphs: 52 Date of last submission/s: 11 July 2024 Date of hearing: 11 July 2024 Place: Brisbane Counsel for the Applicant: the Applicant appearing on his own behalf Solicitor for the Respondent: Mr Sceteri, Solicitor of World Vision Australia ORDERS
BRG 167 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JOSIYAS MBUZI
Applicant
AND: WORLD VISION AUSTRALIA ABN 28 004 778 081
Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
11 JULY 2024
THE COURT ORDERS THAT:
1.The Application by the Respondent for leave to be granted to be legally represented is refused.
2.The Application filed on 8 April 2024 and the application in a proceeding filed on 2 July 2024 are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Ex tempore)JUDGE VASTA
On 8 April 2024, the Applicant, Josiyas Mbuzi, filed an application in the small claims jurisdiction, asking for the Court to award him the sum of $98,597. The claim was made regarding two aspects of his employment with an organisation known as World Vision Australia.
The matter was case managed by the Registrar until the Respondent filed an application in a case for the matter to be removed to this Court and for the Respondent to be legally represented. I dealt with that aspect earlier today and denied the Respondent legal representation.
As both parties were present, and all the material was filed, I heard the substantive application as a small claim hearing with both parties making submissions on the material.
What the Applicant has said is that he applied for a position with World Vision as a fundraising promoter. It was a position that he had asked for. He said, in his application, that he had had previous experience with working with World Vision, and that he had quite a number of qualifications, including being in the midst of completing a doctorate in economics.
The Applicant was successful.
On 1 June 2023, Ms Jenny Nguyen, the talent acquisition and talent development advisor in the people and culture section of World Vision Australia wrote to the Applicant in these terms:
Hi Joe, as discussed, we are excited to offer you the full-time position, as you have prior experience as fundraising promoter with World Vision in Melbourne. I have now sent you the permanent full-time contract for you to sign. Have a fantastic evening.
The contract of employment was a 13-page document, which was 12 pages of the terms of the contract and one page of a schedule. This schedule was mentioned often in the employment contract.
The Applicant has said that, when employed by World Vision, he was the only full-time employee in Brisbane and that all of his colleagues were either casuals or part-time and that the fact that he was full-time was an acknowledgment of his credentials and previous work experience. The covering letter from Ms Jenny Nguyen would seem to back that up.
The first page of the contract is actually a congratulatory letter written on behalf of Daniel Wordsworth, who is the CEO of World Vision Australia.
The employment agreement itself has a number of sections and clauses. These are as follows:
·The terms and conditions of employment,
·The position and duties. This section states that the position is specified in schedule 1 and then talks of other aspects regarding the position and duties.
·The location was also said to be contained in schedule 1.
·The offer was conditional upon a satisfactory security check, a declaration of pre-existing injury/illness, etcetera, and the Applicant proving that he was legally entitled to work in Australia.
·He was given a probationary period of six months.
·The hours of work were specified in schedule 1.
·His remuneration was specified in schedule 1.
·Clause 7.2 of the employment agreement:
Your employment is underpinned by the Fair Work Instrument specified in schedule 1. Your classification under that Fair Work Instrument and, if applicable, pay point are also specified in schedule 1.
·There was an explanation as to the calculation of total remuneration. There were clauses regarding salary reviews, salary packaging, superannuation, fringe benefit tax.
·Performance reviews, leave entitlements and other benefits,
·Notification of inability to work
·Duties that were over and above those in the job description.
·There was a clause regarding other appointments,
·Conflict of interests,
·Suspension from duties.
·There was a clause regarding medical examinations by practitioners nominated by World Vision.
·Policy procedures and code of conduct
·Safeguarding and your employment
·Confidentiality
·Intellectual property
·Termination
·Redundancy,
·Summary dismissal
·Deductions on termination,
·Recovery of overpayment,
·Obligations after your employment with World Vision ends
·Return of property,
·Restraints
·Severability.
·Entire agreement,
·No waiver,
·Amendments - which stated that the agreement could only be amended or varied by a document signed by or on behalf of each party,
·Governing law and jurisdiction
·Guarantee and accuracy of information,
·Acknowledgement and Acceptance
Most importantly, Clause 26 says that:
By signing this agreement, you acknowledge that you have had an opportunity to seek legal advice about this agreement and that you have been given a copy of the Fair Work Information Statement.
The Applicant signed and dated that contract on 4 June 2023.
So, in effect, it was signed three days after Ms Nguyen had sent him the contract for him to sign.
Schedule 1, which is on page 13 of the 13-page employment contract, noted that:
·His position was fundraising sales promoter, Queensland, permanent full-time.
·His employment status was permanent.
·His employment type was full-time.
·His employment location was as communicated in your roster at locations within or near the Brisbane area or as reasonably directed by your manager.
·The commencement date was 7 June 2023.
·The probationary period was six months.
·He was to initially report to the retail activation teams manager.
·The Fair Work Instrument was noted as the Social, Community, Home Care and Disability Services Industry Award.
·His classification was Social and Community Services Employee, level 1.
·His pay point was P1.
·His work hours were 37 and a half hours a week.
·The work schedule was seven and a half hours each Monday to Friday.
·His total full-time remuneration, including super, was $50,635.23.
·His annual leave loading was 17.5 per cent of the ordinary hourly rate.
·The state of governing law was Queensland, and
·The working with children check was not required.
The Applicant was, it would seem, summarily dismissed in October 2023. He was paid his entitlements under the employment contract; though, it may be that there are proceedings in other Courts regarding the cessation of employment. This application is solely based upon what the Applicant claims as being underpayments regarding the employment.
The Applicant's main claim is that the organisation wrongly categorised him as a Social and Community Services Employee level 1 with a pay point at P1.
The Applicant says that his qualifications and experience put him at the classification of Social and Community Services Employee level 6, but by being conservative, he is only claiming, for the purposes of this matter, that he should have been at level 5. He says that when one looks at what he was paid, and what he should have been paid, that he had been underpaid the sum of $93,900 gross.
The second aspect of his claim is that he was not given the opportunity to take tea breaks.
The Award allows for employees to take a 10-minute tea break, which would count as work undertaken. Therefore, if a person was to work from, for example, 12.30 to 4.30, a four-hour block, then they are entitled to take a 10-minute tea break during that time, which would be seen as being time worked.
The Applicant said that he did not ever take a tea break, but more importantly that he was never told that he was entitled to take a tea break. Therefore, he has claimed that he is to be paid for 10 minutes of each day of his employment at an overtime rate, which is calculated as $4,018.
That gives a total of $97,918 that he is owed.
On behalf of World Vision Australia, Nathan Callaghan, who is the chief of people and culture of the organisation, has given an affidavit. Mr Callaghan acknowledges that the Applicant was employed by the Respondent in the position of fundraising sales promoter on a permanent full-time basis pursuant to the contract which I have laid out in my recitation.
Mr Callaghan says that the Applicant was given a Fair Work Information Statement, together with a copy of the contract. Mr Callaghan says that, based on the duties and responsibilities required of the fundraising sales promoter position, World Vision classifies all fundraising sales promoter roles for new employees as Social Community and Services Employee level 1.
The duties and responsibilities required of a fundraising sales promoter position, sit within the classification definition of Social Community and Services Employee level 1 classification, and do not extend into the responsibilities and duties required of a Social Community and Services Employee level 2 role, according to Mr Callaghan.
The fundraising sales promoter position, according to Mr Callaghan, is an entry-level sales position, and it does not require any formal qualifications, unlike the Social Community and Services Employee level 2 and upwards roles.
The job description, according to Mr Callaghan, bears this out. Mr Callaghan says that the role did not require the performance of, nor was the Applicant required to perform, any of the typical duties associated with a level 2 role, such as supporting or supervising other lower classified staff or volunteers or exercising autonomy and judgment, that is, going outside of specified processes. He was not required to assist senior employees with specific projects, and he was not required to have responsibility for a minor function or contribute knowledge to improve the function.
Regarding the Applicant's contention that he should have been a level 5 employee, Mr Callaghan says (with reference to what a level 5 employee would be required to do) that the Applicant did not have responsibility for a range of functions within the organisation requiring a high level of knowledge and skills. He did not undertake responsibility for a moderately complex project, including planning, coordination, implementation, and administration. He did not undertake a minor phase of a broader or more complex professional assignment. He did not assist with the preparation of or prepare organisation or program budgets in liaison with management. He did not set priorities and monitor workflow in areas of responsibility. He did not provide expert advice to employees classified at lower levels and/or volunteers. He did not exercise judgment and initiative where procedures were not clearly defined. He did not understand all areas of computer operation to enable the provision of advice and assistance when non-standard procedures or processes were required, and he did not undertake analysis or design for the development and maintenance of projects and/or undertake programming in specialist areas.
Mr Callaghan said that, as far as he was concerned, he had reviewed the relevant business records and believed that the Applicant had not previously been employed by the Respondent.
Mr Callaghan said that the Applicant was given all of his entitlements upon termination. With regards to tea breaks, Mr Callaghan says this:
In my role, I am familiar with the Award and I have reviewed the Award prior to swearing this affidavit. Section 27.2 of the Award relates to an Award covered employee's entitlements in relation to paid tea breaks. 27.2(a) of the Award relevantly provides that every employee will be entitled to a paid 10-minute tea break in each four hours worked at a time to be agreed between the employer and employee. 27.2(b) states that tea breaks will count as time worked.
Mr Callaghan says that the Applicant was informed in his entitlement to paid tea breaks as part of the on-the-job training he received during his employment with World Vision. He says:
that I am informed by the team leader, Victor Etsy, that the applicant was advised during his employment there was no set time for tea breaks, and he was to manage these breaks at a time that worked for him within his rostered hours; that the applicant was not denied any tea breaks at any time during his employment; and other team leaders observed the applicant taking tea breaks from time to time, although this was not strictly monitored or recorded in the systems as tea breaks were to be managed flexibly and taken at a time that suited the employee.
Mr Callaghan has said that the first time the Applicant raised his concern, about tea breaks, was in his email that was dated 19 December 2023 (nearly two months after termination).
The Applicant says that there are aspects of Mr Callaghan's affidavit that the Court simply should not accept. He states that the fundraising sales promoter roles for new employees were at Level 1, pay point 1. The Applicant says that he was not a new employee as he had been employed before.
Whilst it is that Mr Callaghan says as far as his search of the business records go, that the Applicant had not been employed before. It is clear from the letter from Ms Nguyen that the Applicant had been employed before. However, the Applicant was still a new employee because he was coming into the organisation, albeit for the second time, and if one looks at World Vision across the world, coming into the organisation after having quite a deal of experience with World Vision offices throughout the world. However, notwithstanding that he had been previously employed, he was still, for all intents and purposes, a new employee, as he was not a person who was being promoted into another role.
The position description, that had been provided by the organisation, spoke of the position as being a “fundraising promoter” who reported to a “fundraising team leader”. The position itself had no direct reports and no indirect reports, so that the position could not have been seen as anything other than an entry-level position. The “key accountabilities” area was also one that looks, or is described, in such a way that it could only be an entry-level position.
The “experience and knowledge” section of the position description asks for an understanding of good customer service and an understanding of global issues around poverty and injustice. The position description notes that “retail, fundraising or sales experience highly regarded”.
The qualifications for the position were that no formal qualifications were required. It is for that position that the Applicant had made his application. It was that position for which he was successful, and it is that position that is reflected in the contract of employment.
The Applicant claims that he was not given the Fair Work Information Statement, yet, as has been said in my recitation of the contract, the Applicant signed the contract which acknowledged that he had been given the opportunity to seek legal advice about the agreement and had been given a copy of the Fair Work Information Statement.
When I asked why it is that he had signed that contract, which acknowledged that he had been given a copy of the Instrument, if he had not been given such an Instrument, the Applicant said to me that “that was an oversight”.
Given the level of detail with which the Applicant has prepared this matter, given the level of detail with which he conducts himself, given the level of, if I could say, confidence with which he challenges authority, especially me during the hearing of this matter, it is incongruous that he would sign such a document without having read it properly. He exclaims that he still did not read it properly. I cannot accept this.
The contract clearly points to the Award being the Social, Community, Home Care and Disability Services Industry Award. The Applicant was asked by me, during the course of the hearing, as to why he did not look at the Award independently, given that he was told what the Award was, even if he hadn’t been given a copy. He simply said that he did not do it, he did not know about it, and it was not given to him. That didn't answer the question as to why he personally didn't go out of his way to do so.
It is illogical to me, given the history of this matter, that the Applicant would have signed the document without having read it, and certainly, without having investigated the Award. Given that he signed the contract three days after it was first given to him, one would think that such a lapse in time correlates to the Applicant not being someone who has just blindly signed the contract. Rather, it speaks of someone who has taken the time to think about what it is that he has signed before he has actually agreed to the terms.
I can only conclude that the Applicant knew that, even with his work experience and academic credentials, he was accepting an entry level position, and he was accepting the pay that came with it. He has not produced any evidence to show that he was actually performing the duties of a higher level. Mr Callaghan’s evidence on this point was not challenged.
With regard to the tea breaks, the Applicant points to a text message that he sent a person by the name of Samuel. The Applicant sent the text message to Samuel saying:
Good morning, Sam. Trust you are well, together with your family. I had called to ask for support based on our working together as follows.
(1) For you to state the numbers of years you have worked for World Vision.
(2) Your qualifications.
(3) That you knew me because of working together as promoters.
(4) That when we worked together, you never saw me taking a tea break, but that you saw me taking a lunch break.
(5) That while we worked together, you never saw me being supervised by anybody.
(6) That while we worked together, you never complained against me for anything.
(7) Any views you formed about me while we worked together, were they positive or negative?
Thanks, and try to call again. Regards, Joe.
The message, which seems to appear to be forwarded as a reply, says this:
Hey brother. Sorry I reached out too late. I've been battling fever, heavy coughing. After seeing the GP, he thinks it nothing, and I will be fine. Well, regarding the question you've asked:
Questions number 4; none of us knew we can take a tea break until two weeks ago in a meeting. Victor mentioned it.
5; we worked three shifts together. I can't say I remembered.
6; you helped one of the co-worker to get her shift back after being cancelled.
I would not want to be on record, I'm sorry for that, but I've answered above questions based on my experience and knowledge. Thanks, Samuel.
The Applicant says that this is evidence that none of the promoters knew that they could have a tea break until two weeks ago in a meeting that Victor mentioned it. It would seem that that would have to have been a meeting that occurred after the Applicant brought some form of proceedings against World Vision, and I'm prepared to accept that this was when it happened.
It is noteworthy that the person, Samuel, talks about Victor mentioning the matter in a meeting. According to Mr Callaghan, this same person, Victor, claims that the Applicant “was advised during his employment that there was no set times for tea breaks, and that he was to manage these breaks at a time that worked for him within his rostered hours, and that the Applicant was not denied any tea breaks, and that other team leaders observed the Applicant taking tea breaks from time to time, although this wasn't strictly monitored or recorded”.
The question for this Court is to decide whether it is that the Applicant has proved that he did not ever take a tea break or that, more importantly, that he was never told that he could take a tea break.
It seems again to me to be somewhat incongruous that World Vision had not told the Applicant that he was entitled to a tea break under the Award, and yet have given the Applicant a Fair Work Information Statement and told him what the actual Award was. It seems also incongruous as to why this was not raised until December of 2023, when the Applicant had an email exchange with the person, Nathan Callaghan.
The problem is that, because tea breaks were taken as time that had been worked, they are not reflected, and would never be reflected, on any time sheets. Whether or not it is that persons did engage in tea breaks would seem to me to be something that is a matter that was totally in the control of the employee themselves.
When it comes down to it, the question is whether I accept what the Applicant has said, together with the person Samuel, as against what Mr Callaghan has said, followed with what Mr Victor Itzi has said.
It is really a matter where the Court is in position where it does not know which of the versions to accept. Where it is that it is in such a position, the onus is on the Applicant to prove that he did not take the tea breaks and was not told of them. Because the Court is in a position where it cannot make a true finding as to whether the Applicant is correct or not, then the unfortunate consequence is that the allegation is not proved.
For those reasons, the claim for underpayment of wages is dismissed. The claim for payment for non-taking of tea breaks is also dismissed.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 29 July 2024
0
1