Moore v Parris Hair and Beauty Pty Ltd

[2019] FCCA 469

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOORE v PARRIS HAIR & BEAUTY PTY LTD & ANOR [2019] FCCA 469

Catchwords:
INDUSTRIAL LAW – apprentice – employed part‑time – alleged underpayment of wages in contravention of Fair Work Act 2009 – modest amount – employer remedied breach immediately upon being notified – liability established – declaration made – proceeding adjourned for penalty hearing.

Legislation:

Fair Work Act 2009, s.45

Other materials:

Hair and Beauty Industry Award 2010

Applicant: TARA MOORE

First Respondent: PARRIS HAIR AND BEAUTY PTY LTD (ACN 168 961 788)

Second Respondent: LISA PARRIS

File Number: MLG 810 of 2017

Judgment of: His Honour Judge J D Wilson QC

Hearing date: 5 December 2018

Date of Last Submission: 20 December 2019

Delivered at: Melbourne

Delivered on: 1 March 2019

REPRESENTATION

Solicitors for the Applicant: Maddison & Associates

Second Respondent: In person

DECLARATION

1. The first respondent contravened s 45 of the Fair Work Act 2009 by paying the applicant at a rate other than as an adult apprentice in the period 27 December 2015 to 14 November 2016

ORDERS

1. Unless the parties inform me in writing on or before 15 March 2019 that they wish to be heard on the questions of compensation and penalty, the questions of compensation and penalty are to be determined on the papers.

2. By 4pm on 12 April 2019 each party is to file and serve any affidavit and written submissions on the questions of compensation and penalty.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 810 of 2017

TARA MOORE

Applicant

And

PARRIS HAIR AND BEAUTY PTY LTD (ACN 168 961 788)

First Respondent

LISA PARRIS

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The amount in issue in this case was modest, the issues in dispute were confined and the respondents were not legally represented.  Those matters should have pointed to the need for greater expedition in the conduct of this litigation.  Yet, despite the proportionality of those matters calling for speed and cost‑efficiency, this case was commenced in April 2017 and heard at trial in December 2018 upon my requiring that the trial on liability be conducted on a much contained basis.  In making those comments, I make no criticism of the second respondent who appeared personally for herself and on behalf of the first respondent with my leave.

2. Stripped to its essence, two issues fell for determination.  The first was whether the applicant was a full‑time employee of the first respondent.  The second was whether the first respondent had contravened the relevant award by paying the applicant certain amounts that were said to not correctly reflect the relevant award.  If the applicant proved that she had been incorrectly paid, the subsidiary question was whether the applicant was entitled to compensation for any such contravention.

Synopsis

1. For the reasons that follow, in my judgment –

   a)the applicant was not a full‑time employee of the first respondent;

   b)by reason of an admitted failure to pay the applicant a particular sum, which failure was quickly remedied, the first respondent contravened the relevant award with a consequence that the applicant is entitled to a modest amount of compensation in this case;

   c)the further hearing of this case as to penalty and monetary amounts is adjourned to a date to be fixed.

Relevant factual setting

1. At my insistence, the parties agreed on certain facts thereby reducing (to at least some small extent) the matters in issue in this case.  The agreed facts were as follows (with the errors in the original) –

   1.The Applicant Ms Moore was initially employed on 28 September 2013 by Lux Hair Northland Pty Ltd pursuant to The Hair and Beauty Industry Award 2010 and there was a training agreement in place with that employer.

   2.The First Respondent took over the business from 27 December 2015.

   3.The employees who were employed by Lux Hair Northland Pty Ltd were terminated by Lux Hair Northland Pty Ltd and immediately reengaged by the First respondent at the time it took over the business.

   4.The work carried out by the transferring employees is the same or substantially the same as the work carried out by them prior to the takeover

   5.The applicant is a transferring employee for the purposes of section 311 of the Fair Work Act 2009.

   6.The applicant was employed pursuant to the Award being the Hair and Beauty Industry Award 2010

   7.The Second respondent is a Director of the First respondent and manages the business of the First respondent. The First Respondent employs a manager to manage the day to day operations of the business and that manager reports to the Second Respondent periodically.

   8.The Award prescribes the mode(s) of employing employees and rates of pay that are applicable to employees.

   9.The Award requires that a part time employee be advised in writing of that mode of employment and that the parties agree to:-

   •      the hours worked each day;

   •      which days of the week the employee will work;

   •      the actual starting and finishing times of each day;

   •      that any variation will be in writing;

   •      that the minimum daily engagement is three hours; and

   •      the times of taking and the duration of meal breaks.

   10.The First Respondent attempted to re-engage the Applicant on a training agreement but was unable to do so because Lux Hair Northland Pty Ltd had not discharged the prior training agreement it had entered with the Applicant.

   11.The Applicant was not paid a casual loading.

   12.The Applicant has difficulty with written English as she has dyslexia.

   13.The Applicant has made a claim for underpayment in the sum of $18,665.67

   14.The Respondent has made a payment of $4,252.84.

2. The solicitor for the applicant conducted this case with little to no attention being directed to the correct identity of the first respondent.  When the proceeding was commenced, the first respondent was described on the initiating application as “Lu Hair Pty Ltd” and the second respondent’s surname was misspelt.  That form was signed by the solicitor for the applicant.  In the same form, on the third page, immediately below the applicant’s signature, the first respondent’s name was described “Lux Hair Pty Ltd”.  The statement of claim introduced a different entity, although not a corporate entity, despite paragraph 1 of the statement of claim asserting (erroneously) that the first respondent was a company capable of being sued.  The solicitor for the applicant proposed to amend the first respondent’s name in the proceeding to “Parris Hair and Beauty”, that being a business name only and not an incorporated entity.  At no stage did the applicant’s solicitor offer the most rudimentary evidence about the first respondent’s corporate status.  I did not permit the name of the first respondent to be amended in the way the solicitor requested.  Instead, consent orders were made in late April 2018 amending the first respondent’s name to Parris Hair and Beauty Pty Ltd and the second respondent’s name to be properly spelt.  This case may have been conducted more efficiently had the applicant’s solicitor been more diligent and accurate in properly attending to basic straightforward activities in the preparation of the case.  It became readily apparent that the details of the statement of claim were largely useless in this case and they provided next to no guidance about the matters of fact and law that were relevant to this dispute.  That will be relevant to any consideration of costs in this case.  Litigation should not be conducted in such an unsatisfactory manner in this court.

3. At all events, the applicant at all relevant times was a hairdresser with certificate II qualifications.  From November 2013 she was employed by an entity, apparently known as Lux Hair Northland Pty Ltd, although it could not be said with precision that even that detail was correct in view of the provisions of the applicant’s training contract (an agreed exhibit) that stated that a business called “The Hair Club” of Northland Shopping Centre, Murray Road Preston, employed the applicant.  The solicitor for the applicant conducted this case with disregard for the accuracy of those details. 

4. Relevantly for present purposes, it may fairly be distilled that the applicant was employed by a particular employer prior to late December 2015.  Ms Parris said in evidence that the applicant’s employer was Hair Club, a trading name owned by Lux Hair Northland Pty Ltd.  In late December 2015 Parris Hair and Beauty Pty Ltd acquired the assets and undertaking of Lux Hair Northland Pty Ltd.  Some but not all employees previously employed by Lux Hair Northland Pty Ltd were offered employment with Parris Hair and Beauty Pty Ltd one of whom was the applicant.  Ms Parris said that her company, the first respondent, offered the applicant employment with the first respondent “on the basis of the roster that was current”, being part‑time employment according to Ms Parris.

5. The applicant’s outline of evidence was largely a submission rarely descending to the actual facts of the case.  In cross‑examination the applicant’s real issues in this case emerged.  They should have emerged much earlier.  Soon after she commenced employment with the first respondent the applicant said her shifts began to reduce.  She said she travelled an hour to attend work to find that on occasions her employer was not busy so she was sent home.  The applicant said she spoke to Ms Parris telling Ms Parris that the applicant was unable to work at night as she had a school‑aged daughter to collect. 

6. The applicant said she was a full‑time worker upon her first commencing with the first respondent.  That was a subject of dispute.  In the passages below I have examined factual matters relating to the applicant’s roster.

7. By May 2016, the applicant’s mother was at an advanced stage of serious ill health.  The applicant said she wanted to work at a venue that was closer to her mother.  At the time the applicant needed help caring for her daughter between 3pm and 9pm so the applicant explored the idea of working daytime hours (9am to 3pm) rather than 3pm to 9pm.  The applicant said the first respondent did not agree to the applicant altering her hours in that way.  The applicant said the first respondent’s refusal to agree to the applicant’s request was unfair. 

8. The applicant’s sister, one Heather Pearce, gave evidence about a spreadsheet that was an exhibit in this proceeding.  Ms Pearce said she examined a collection of the applicant’s payslips, compared the entries on them with an award relating to hairdressing and concluded that the applicant was not being paid correctly.  In cross‑examination Ms Pearce said she met with Ms Parris along with the applicant at which Ms Parris denied the applicant had been underpaid. 

9. At the conclusion of the applicant’s evidence, the proofs of various issues were established in the manner set out hereunder.  While not in any particular order they were as follows –

   a)between 27 September 2013 and 27 December 2015 the applicant had been employed by Lux Hair Northland Pty Ltd as a hairdresser II, pursuant to the terms of the Hair and Beauty Industry Award;

   b)on 27 December 2015 the first respondent acquired the assets and undertaking of Lux Hair Northland Pty Ltd;

   c)the applicant commenced employment with the first respondent on and from 27 December 2015 as an apprentice hairdresser according to the hours she had worked with Lux Hair Northland Pty Ltd immediately prior to that date;

   d)from December 2015 until May 2016 the applicant worked hours that included periods from 3pm to 9pm;

   e)for personal reasons largely associated with the applicant’s need to care for her young child after school, on a date after May 2016 the applicant approached Ms Parris seeking working hours that better suited the applicant;

   f)the first respondent declined to accommodate the applicant’s request for different working hours;

   g)thereafter, the applicant’s sister investigated payments made by the first respondent to the applicant and concluded that the applicant had not been paid in accordance with the relevant award; and

   h)thereafter, the applicant commenced this litigation against the respondents.

10. Let me address the competing evidence on the subject of the applicant’s status as a full‑time or part-time employee.  The applicant asserted she was a full‑time employee in her viva voce evidence.  She did not tender in evidence any document that corroborated her assertion.  That was a key aspect of her proofs in this case.  It was addressed only fleetingly by the applicant’s solicitor.  When compared to the second respondent’s evidence on the same issue I was persuaded that the applicant was a part‑time employee and not a full‑time employee in the manner the applicant asserted.

11. Ms Parris gave evidence that her company acquired the assets and undertaking of the hairdressing operations previously undertaken by Lux Hair Northland Pty Ltd.  She said that the first respondent did not employ all of the staff who had previously worked for Lux Hair Northland Pty Ltd.  The relevant exchange unfolded in the following terms[1] –

    [1] Transcript of proceeding (5 December 2018) 29-30

    HIS HONOUR:   So your company purchased the assets and undertaking of the hairdressing operations previously carried on by Lux Hair Northland Proprietary Limited.

    MS PARRIS:   Correct.

    HIS HONOUR:   And with that, all employees were then retained;  is that right?

    MS PARRIS:   Not all employees.  There was one who did not continue.

    HIS HONOUR:   Right.  Did you enter into separate agreements, or did you simply receive an assignment or a novation of previous agreements?

    MS PARRIS:   In the contract of sale, all employees were terminated and re-engaged.

    HIS HONOUR:   I see.  So you became an employer on and from the start date ‑ ‑ ‑

    MS PARRIS:   Correct.

    HIS HONOUR:   ‑ ‑ ‑ and relevantly here, in relation to Ms Moore, from that date.

    MS PARRIS:   Correct.

    HIS HONOUR:   So in terms of the terms on which you entered into your arrangements with Ms Moore, did you offer her employment on the same terms and conditions as she had worked with Lux Hair Northland Proprietary Limited?

    MS PARRIS:   We offered her employment on the basis of the roster that was current.

    HIS HONOUR:   As at takeover date?

    MS PARRIS:   As at takeover.

    HIS HONOUR:   Now ‑ ‑ ‑

    MS PARRIS:   Correct.

    HIS HONOUR:   Okay.  Now, as at takeover date, was Ms Moore rostered to work full-time or part-time?

    MS PARRIS:   Part-time.

12. It became necessary to examine the roster that went into evidence.  That document was the subject of close examination.  It revealed that the applicant worked for the first respondent mainly on Wednesdays, Fridays and Saturdays.  On that basis Ms Parris classified the basis of the applicant’s employment as part‑time.  I agree.  On any conventional construction of the phrase “part‑time”, those hours corresponded.  The applicant did not work on a full‑time basis in my view.

13. Accordingly, in answer to one issue in this case, in my judgment the applicant was paid correctly from 27 December 2015 to 14 November 2016 as a part‑time apprentice. 

14. On 14 November 2016 the first respondent was informed that the applicant should have been paid on the basis that the applicant was an adult apprentice from 27 December 2015.  On ascertaining that state of affairs, the first respondent immediately remedied the situation. 

15. The solicitor for the applicant made a great deal of the fact that the first respondent as principal and Ms Parris as an accessory contravened one or more provisions of the Fair Work Act 2009 by paying the applicant at a rate other than as an adult apprentice in the period 27 December 2015 to 14 November 2016.  He said Ms Parris admitted that a breach of the relevant award had been committed.  For the purposes of this case I was required to determine whether the admission made by Ms Parris constituted evidence of a contravention of the Fair Work Act 2009. 

16. In my view it did.  In those circumstances it is appropriate to make a declaration that the first respondent contravened the Fair Work Act 2009.

17. The solicitor for the applicant pressed for orders to be made Ms Parris in her personal capacity on the basis that she was an accessory to the first respondent’s contravention of the Fair Work Act 2009.  The solicitor for the applicant floated a variety of monetary amounts in his final written submissions that he said represented the applicant’s monetary loss.  During one of the directions hearings I conducted in this case when the case was in its interlocutory phases the applicant’s loss was said to have been $40 000.  In one version of the statement of claim the applicant asserted she had suffered loss of wages of $18 665.67, a substantial diminution of the amount claimed.  In evidence during the trial of this proceeding Ms Parris said all sums properly due had been paid once the first respondent recognised the applicant’s correct status as at 14 November 2016.  Elsewhere, in one version of the applicant’s statement of claim, the solicitor for the applicant asserted that the first respondent had paid the applicant $4 252.84 in part payment of sums due leaving an amount owing of $14 412.83.

18. The fluctuating nature of those figures raised several points. First, the amount in relation to damages was highly mercurial on the applicant’s case. Second, during the trial on liability, only liability was in issue. The question of liability has now been determined. Third, a higher degree of proportionality must be evident from this point on because the amount in issue in this case is small and the legal costs could very well eclipse the claim.

19. In those circumstances, unless the parties inform me in writing within 14 days of today that they wish to be heard on the question of penalty, I will deal with compensation and penalties on the papers.  Accordingly, I will give the parties six weeks to file and serve any affidavits and submissions on compensation and penalty, after which I will determine compensation and penalty. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of his Honour Judge J D Wilson QC

Associate: 

Date:       1 March 2019