MEITZEL v Andimied Pty Ltd

[2016] FCCA 460

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEITZEL v ANDIMIED PTY LTD [2016] FCCA 460

Catchwords:
INDUSTRIAL LAW – Fair work – small claims – whether employee casual or part-time – relevant wage rates.

Legislation:

Fair Work Act 2009

Applicant: ELKE MEITZEL

Respondent: ANDIMIED PTY LTD

File Number: MLG 2380 of 2015

Judgment of: Judge McGuire

Hearing date: 2 March 2016

Date of Last Submission: 2 March 2016

Delivered at: Melbourne

Delivered on: 8 April 2016

REPRESENTATION

Counsel for the Applicant: Self Represented

Counsel for the Respondent: Self Represented by agent

Solicitors for the Respondent: N/A

ORDERS

1. I declare that the respondent has breached the provisions of the General Retail Industry Award 2010.

2. That the respondent pay to the applicant a sum of $820.48 within 21 days of the date of these orders. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2380 of 2015

ELKE MEITZEL

Applicant

And

ANDIMIED PTY LTD

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the small claims list of the Fair Work jurisdiction of this court. The applicant appears in person. The respondent is represented by Mr Love who is apparently the husband of the director of the said photography company which, from all accounts, is a relatively small operation.

2. During the course of the day on which the matter was listed for hearing the parties had the benefit of the assistance of a solicitor from the Fair Work Ombudsman’s officer who unfortunately was unable to resolve the issue and the matter proceeded to evidence.

3. The applicant was employed by the respondent company as a photographer between 24 April 2014 and 20 March 2015. Her employment was pursuant to the General Retail Industry Award 2010. 

4. The dispute between the parties was able to be isolated to two issues. First, whether the applicant was employed as a casual or part-time employee. Second, whether the applicant was employed as a Level 4 or Level 6 employee.

5. In her Form 5 claim, the applicant at paragraph 18 summarises her duties as: “planning photoshoots, planning sets undertake pre shoot client consultation, maintain studio, clean studio, DIY, telephone marketing, undertake marketing campaigns, image editing, compiling dynamic slideshows & client presentations, retouch images, design coffee table books, liase (sic) with style consultant, answering phone call, sell gift vouchers, general administration duties, ordering of equipment, screen calibration”.

6. The applicant tendered a document dated 29 April 2014 in support of her application, but which served only to amplify the ambiguity of the issues.  That document purports to be a letter and employment contract titled “Consulting Agreement”.  The covering letter states, inter alia:

   Award name – General Retail Industry Award 2014 (sic) -(Level 6)(Transitioned from the Pre-Modern Photography award).

7. Immediately below appears the following:

   Full/Part-time Rates – Retail Employee Level 4.

8. The document titled “Consulting Agreement” itself has a cover page stating:

   Photographer – Permanent Casual – Agreement.

9. The respondent argues that the employee was employed on a “part-time” status.  The applicant says that she was “casual”.

10. There are some indicators that the applicant was indeed employed on a part-time status.  For example, she received a severance payment upon termination of her employment.  Such would be normally available to part-time employees, but not to those who are casual. The aforesaid covering letter does refer to the applicant in one place as being “part-time” in respect of her pay rate. That document also provides fixed work days and hours.

11. Nevertheless, the applicant’s own evidence, unsuccessfully challenged, in the witness box was that she worked various days of the week, and varying hours, and was required to telephone the employer each week to confirm her work days and hours. Confronted with this evidence, the respondent’s representative did not vigorously challenge that the applicant was employed on a “casual” basis.  As such, and on the balance of probabilities, I prefer the applicant’s evidence that she was a casual employee. This raises the issue of the sum of $726 severance pay received by her and to which she would not be entitled as a “casual employee”. The Act allows for set-offs and given the “summary” nature of the small claims jurisdiction, I am satisfied that it would be appropriate to “set-off” this amount from the applicant’s claim, although no formal response was lodged by the respondent.

12. The remaining issue is whether the applicant was employed on a Level 4 or Level 6 basis.

13. The applicant’s rate of pay at $24.22 per hour is commensurate with, but not precisely to, the scale of a Level 6 employee. It is, however, significantly higher than the relevant Level 4 rate.

14. A Level 4 employee is required to utilise generally the skills of the relevant trade qualification which, in this case, is a photographer. A Level 6 employee has higher grade roles, including managerial duties and responsibilities than lower classified employees. In this particular business, however, the applicant was the only employee photographer and reference to such responsibilities is of little assistance in my determination.

15. I am therefore again left with the ambiguity of the terms of the applicant’s employment. Certainly, the covering letter of the employment contract refers to pay rates as a Level 4, and is confirmed on the applicant’s pay slips. Nevertheless, the pay rates actually received are higher than Level 4, and closer to the basic rate of a Level 6. Further, the said covering letter read literally would suggest that applicant was employed under the award at “Level 6”.

16. Significantly, the author of the letter was not available to give evidence as to his/her intent. I am of the view, therefore, that the Court is left with a literal interpretation in order to resolve such prima facie ambiguities. Therefore, on the balance of probabilities I prefer that the applicant was employed under Level 6.

17. As mentioned above, the issues in this matter are isolated as to two discrete matters. The respondent had not filed a response and, in the interests of fairness, any proposed adducing or tendering of evidence in respect of matters other than the two discrete issues was not allowed.  Indeed, the representative of the respondent initially sought an adjournment, having not filed a response.  When the Court indicated a reluctance to allow an adjournment in the circumstances of the nature and quantum of the claim, the respondent chose to proceed, but under caution from the Court that the applicant would not be disadvantaged by evidence in “ambush”. It follows that the quantum of the applicant’s claim was not disputed on any proper evidentiary basis save and except the above finding as to the “set-off” of the severance pay, should the Court find the applicant to have been a casual employee.

18. In conclusion, therefore, and on the balance of probabilities, I am satisfied that this applicant was employed as a casual employee at a Level 6 status. The applicant’s claim is in the sum of $1546.48. That claim should be allowed, but less the set-off of $726, leaving an award of $820.48 in favour of the applicant.  I will order accordingly.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 8 April 2016