MERHI v Wei
[2012] FMCA 813
•30 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MERHI v WEI | [2012] FMCA 813 |
| INDUSTRIAL LAW – Fair Work small claims – whether the applicant was engaged as a volunteer or for wages – whether the applicant was employed at all – application dismissed. |
| Applicant: | HANAN MERHI |
| Respondent: | QUING WEI T/AS CUDDLY BEAR PRESCHOOL ABN 17 718 610 453 |
| File Number: | SYG 1444 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 30 August 2012 |
| Date of Last Submission: | 30 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 30 August 2012 |
REPRESENTATION
| The applicant appeared in person with the assistance of Ms Kovalsky, solicitor with the office of the Fair Work Ombudsman |
| The respondent appeared in person |
ORDERS
The proceeding before this Court, commenced by way of application filed on 2 July 2012, is dismissed.
NOTE A: The applicant read her affidavit, sworn 30 August 2012.
NOTE B: The relevant award is the Children’s Services Award 2010, tendered by the applicant and marked Exhibit 1A.
NOTE C: The applicant was assisted by Ms Kovalsky, solicitor with the office of the Fair Work Ombudsman.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1444 of 2012
| HANAN MERHI |
Applicant
And
| QUING WEI T/AS CUDDLY BEAR PRESCHOOL ABN 17 718 610 453 |
Respondent
REASONS FOR JUDGMENT
This is an application for unpaid wages in circumstances where the applicant claims to have been employed for some 38 hours over a period of three weeks in the respondent’s child care centre. The facts are disputed at every level between the parties. The respondent said that the applicant was never employed for wages but that she agreed to trial her as a volunteer. The respondent said that the trial on the first day was unsuccessful and the applicant was asked to leave and not return.
In support of her application, the applicant read an affidavit sworn by her on 30 August 2012 asserting that she used the Yellow Pages directory to look up child care centres in order to inquire whether they were looking to employ new staff. The applicant said that she telephoned the respondent’s child care centre and subsequently went in for an interview. The applicant said that she commenced work the following day as a trial from 10:00am until 2:00pm during which time she supervised a group of children. The applicant said that she was offered work at the end of that day and started work the following day.
The applicant gave evidence that she would do a trial for the first four hours during which she acknowledged that she would not be paid.
The applicant’s account is in total contradiction to the evidence of the respondent who said that the applicant came in on three occasions for an interview and that the respondent made clear that the position would be a volunteer position. The respondent said that she believed the applicant came from Mission Australia who had contacted her about the applicant and said that she does not advertise in the Yellow Pages.
The respondent said that during that first day, Channel 7 attended the premises and the applicant conducted herself in a way that caused the respondent concern in that the applicant invited the television crew to look at the laundry and asserted that it and the beds were not clean.
The respondent said that, thereafter, she asked the applicant to leave immediately. The respondent said the applicant did leave at that time and then returned some three or four hours later in a car with three men, although only one of the men got out of the car with the applicant. The respondent said that the applicant and the man initially apologised and asked that the applicant be able to have a job with the centre and continue the work. The respondent said that she did not agree.
Thereupon the respondent said that the applicant, or the man she was with, had asked for money. The respondent refused to give them money. The respondent said that the applicant then grabbed a folder that contained information that the respondent had made as a result of the interviews that she had with the applicant, including a form that the respondent said the applicant signed acknowledging she was a volunteer, and left.
The applicant did not give any evidence of the work she did after the first day or the circumstances in which she said she left. Nor was it put to the respondent in cross-examination that the applicant had ever returned after that first day.
The applicant was a most unimpressive witness whose evidence I do not accept where it departs from that of the respondent.
In any event, whether the applicant was an employee or a volunteer is irrelevant because I am satisfied that the applicant did not even see out the period of her trial of four hours. As stated above, the applicant herself agrees that for the initial four hours she was not expecting any payment.
In the circumstances, I am not satisfied that the applicant was employed as alleged and the application should be dismissed.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 6 September 2012
0
0
0