Myers v Arenco Holdings Pty Ltd

Case •

[2019] FCCA 3077

•

29 October 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

MYERS v ARENCO HOLDINGS PTY LTD & ORS [2019] FCCA 3077
Catchwords:
INDUSTRIAL LAW – Contravention of provisions of s.340 of FWA – compensation and civil penalty orders to be the subject of further submissions – accessorial liability – adverse credibility findings.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 341, 342(1), 358, 360, 361, 550

Cases cited:

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Russel v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250
Applicant: ELISE MYERS
First Respondent: ARENCO HOLDINGS PTY LTD T/A OM YOGA STUDIOS / OM WELLNESS
Second Respondent: ISABEL WU
Third Respondent: GAENOR PYM
File Number: BRG 1053 of 2018
Judgment of: Judge Egan
Hearing date: 26 September 2019
Date of Last Submission: 24 October 2019
Delivered at: Brisbane
Delivered on:  29 October 2019

REPRESENTATION

Applicant: In person
Counsel for the Respondents: Mr S. Mackie
Solicitors for the Respondents: Mullins Lawyers

THE COURT DECLARES THAT:

  1. The First Respondent has contravened the provisions of s.340(1)(a) of the Fair Work Act 2009 (Cth), by terminating the Applicant’s employment because the Applicant exercised her workplace right to make a complaint to the Third Respondent that she had been underpaid and had not been paid her due entitlements payable to her under the Fitness Industry Award 2010.

  2. The Second and Third Respondents were involved in the First Respondent’s contravention as set out in paragraph 1 above and are accessorily liable for such contravention pursuant to the provisions of s.550(1) of the Fair Work Act 2009 (Cth).

AND IT IS ORDERED THAT:

  1. The parties:

    (a)Forthwith cause a copy of these reasons and orders to be served upon the First Respondent.

    (b)Confer for the purpose of preparing draft orders, consonant with the reasons for Judgment, for the Court’s consideration within seven (7) days of the making of these orders.

  2. The Court will hear the parties as to the making of orders for compensation and for the imposition of any pecuniary penalty arising out of a contravention or contraventions of the provisions of the Fair Work Act 2009 (Cth) as found by the Court.

  3. Each party shall have liberty to apply on the giving of two (2) days’ notice, each to the other.

  4. The matter is adjourned to a date to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1053 of 2018

ELISE MYERS

Applicant

And

ARENCO HOLDINGS PTY LTD T/A OM YOGA STUDIOS / OM WELLNESS

First Respondent

ISABEL WU

Second Respondent

gaenor pym

Third Respondent

REASONS FOR JUDGMENT

  1. The applicant had relevantly commenced employment with the first respondent in the role of a fitness (yoga) instructor and administration assistant on 4 April 2018.

  2. On 15 October 2018 the applicant filed an Originating Application by which it was claimed that each of the respondents had contravened the provisions of s. 340 and s. 358 of the Fair Work Act 2009 (Cth) (FWA). It was also asserted that the second and third respondents were accessorily liable pursuant to the provisions of s. 550 of FWA. Sections 340, 358 and 550 of the FWA respectively provided as follows:

    “Section 340 – Protection

    (1) A person must not take adverse action against another person:

    (a) because the other person:

    (i) has a workplace right; or

    (ii) has, or has not, exercised a workplace right; or

    (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

    (b) to prevent the exercise of a workplace right by the other person.

    Note: This subsection is a civil remedy provision (see Part 4-1).

    (2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.

    Note: This subsection is a civil remedy provision (see Part 4-1).

    …

    Section 358 – Dismissing to engage as independent contractor

    An employer must not dismiss, or threaten to dismiss, an individual who:

    (a) is an employee of the employer; and

    (b) performs particular work for the employer;

    in order to engage the individual as an independent contractor to perform the same, or substantially the same, work under a contract for services.

    Note: This section is a civil remedy provision (see Part 4-1).

    …

    Section 550 – Involvement in contravention treated in same way as actual contravention

    (1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

    Note: If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person’s contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).

    (2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:

    (a) has aided, abetted, counselled or procured the contravention; or

    (b) has induced the contravention, whether by threats or promises or otherwise; or

    (c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

    (d) has conspired with others to effect the contravention.”

  3. The applicant’s grounds of claim were recorded as follows:

    “1. I had been employed as a part-time employee for three months.

    On the afternoon of Monday, 2 July 2018, the Second Respondent on behalf of the First Respondent told me, that it was going to change my hours and duties but maintain my permanent part-time employment including my weekly pay.

    On Tuesday, 3 July 2018, I made reference to the Fitness Award in a text to the Third Respondent (my direct supervisor) (complaint 1).

    The Third Respondent subsequently terminated my employment with the First Respondent (verbally) the same day (Tuesday 3rd July) but with an offer of future contract work.

    The First, Second and/or Third Respondents breached s.340 of the Fair Work Act when, in response to Complaint 1, it/they advised that it was going to terminating my employment (adverse action 1).

    That termination and offer of further work were confirmed the following morning (Wednesday 4th July), in an email to me from the Second Respondent on behalf of the First Respondent.

    In the email, the Second Respondent stated that one week's notice was being given and I was required to attend work as usual. The email also stated that the details of a contract teaching offer would be sent in a follow-up email and I would have the week to consider the terms of the new offer.

    2. Later the same day, on Wednesday 4th July, I attended work to complete my time sheet and in the course of doing so, said to the Third Respondent that the First Respondent had been underpaying me in breach of the award. (complaint 2)

    Around five to ten minutes later, the Third Respondent informed me that the First Respondent was fully terminating my employment relationship with them, explicitly withdrew the offer of work as on ongoing contractor, requested me to hand back my keys and requested me not to come back to work (adverse action2(a))

    Since then I have not received any offer of a role as contractor from the First Respondent (adverse action 2(b))

    The First, Second and/or Third Respondents breached s.340 of the Fair Work Act when, in response to Complaint 2, it/she/they advised that I was to cease work that day and the First Respondent would refuse to offer further work as a contractor.

    3. The First, Second and/or Third Respondents breached s.358 of the Fair Work Act when it/she/they told me verbally on Tues, 3 July 2018, and by email on Wed, 4 July 2018, that it was going to terminate my permanent part-time employment to engage me as a contractor.

    4. Pursuant to section 550 of the Fair Work Act, the Second and Third Respondents are responsible for the alleged contraventions as they were:

    Aided and abetted, the contravention; and/or

    Were by their actions directly and/or indirectly, knowingly concerned in and/or party to the contravention.”

  4. The applicant and the first respondent entered into a contract on or about 23 March 2018. The contract document appears as Annexure IW-1 to the affidavit of Isabel Wu filed on 11 February 2019. [1]

    [1]        Pages 154 – 157 inclusive and pages 185 – 186 of Exhibit 1 (Ex 1).

The Law

  1. In order to prove her claims, the applicant must assert and establish that:

    a)she exercised a workplace right or rights as pleaded in her Form 2 notice of claim;

    b)the conduct complained of in fact occurred; and

    c)the conduct constituted adverse action pursuant to the provisions of s. 342(1) of the FWA.

  2. If it is established by the applicant that the impugned conduct was carried out for a prohibited reason, it is for the first respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason. In that regard, s.361 of the FWA provided as follows:

    “Section 361 – Reason for action to be presumed unless proved otherwise

    (1) If:

    (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

    (b) taking that action for that reason or with that intent would constitute a contravention of this Part;

    it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

    (2) Subsection (1) does not apply in relation to orders for an interim injunction.”

  3. The Court further refers to a relevant decision of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [5], [104], [129], [140] and [141] where it was respectively said:

    a)“The task of a court in a proceeding alleging a contravention of s 346 is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason. This appeal was concerned with identifying the correct approach to that task.” at [5] per French CJ and Crennan J

    b)“In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised “a substantial and operative” reason, or reasons including the reason, for the employer’s action and that this action constitutes an “adverse action” within the meaning of s 342.” at [104] per Gummow and Hayne JJ

    c)“… The test is whether adverse action has been taken because of a proscribed reason.” at [129] per Gummow and Hayne JJ;

    d)“… Examining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action.” at [140] per Heydon J;

    e)“… The assessment of a witness’s mental processes is an assessment of that witness’s state of mind. It is pre-eminently a matter in which a trial judge has a considerable advantage over an appellant court…” at [141] per Heydon J.

  4. A causal link must be established between the adverse action the subject of complaint and the matters referred to in s.340(1)(a)(i) – (iii) inclusive due to the use of the word “because” in s.340(1)(a) of the FWA. That issue was dealt with by Foster J in Russel v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 at [60] and [63] where it was said:

    “[60] The provisions particularly relied upon by the applicant (ss 44, 97, 340, 341, 351 and 352 of the FWA) all use the expression “because” or “because of” as describing the necessary causal link between the adverse action and the relevant prohibited reason for that action.

    ...

    [63] It is not necessary for an applicant to establish that the only reason or the dominant reason that adverse action was taken was a prohibited reason. It is sufficient if the prohibited reason is one of several reasons for the taking of the action although it may be that the prohibited reason must have operated as a substantial and operative factor in the taking of the adverse action.”

  5. On the issue of what evidence was needed to be canvassed in relation to the impugned action taken by an employer, it was said by French CJ and Crennan J in Barclay at [41], [44] and [45] as follows:

    [41] The question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act. These provisions must be construed together in accordance with the principles of statutory construction established by this Court, which must begin with a consideration of the text of the relevant provisions and may require consideration of the context including the general purpose and policy of the provisions.

    …

    [44] There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”

    [45] This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.”

    (Footnotes omitted)

  6. On the question of onus, it was said by French CJ and Crennan J in Barclay at [50] as follows:

    “[50] The following description of a legislative predecessor to s 361 given by Mason J in General Motors-Holden’s Pty Ltd v Bowling remains pertinent: “the plain purpose of the provision [is to throw] on to the defendant the onus of proving that which lies peculiarly within his own knowledge.”

    (Footnotes omitted)

  7. An employer’s onus may not be satisfied by a mere statement that the action taken by the employer was not for a proscribed reason. As was said by French CJ and Crennan J at [54] of Barclay:

    “[54] … a question arose as to whether the director’s evidence was sufficient to satisfy the onus cast upon the employer. In deciding that the director’s evidence was sufficient, the majority in Pearce recognised that mere declarations of an innocent reason or intent in taking adverse action may not satisfy the onus on an employer if contrary inferences are available on the facts.”

    (Emphasis added)

The Evidence relating to the Applicant’s Complaints

  1. The applicant alleged in her first affidavit that at approximately 1:00pm on 2 July 2018 the third respondent (Pym) approached the applicant (Myers) at the reception area of the OM Yoga Studios, and asked her to meet with Pym and the second respondent (Wu) to discuss what classes Myers would be teaching “moving forward, when the new studio opens”. [2] Myers set out the dialogue of what transpired at the meeting at paragraphs [5] – [19] of her first affidavit as follows: [3]

    [2]        Paragraph 3 of Myers Affidavit filed on 14 January 2019 – Page 27 of Ex 1.

    [3]        Myers affidavit – Pages 27 – 29 of Ex 1.

    “5. In the meeting, The Second Respondent began by asking me a question the effect: "How has your time been so far at Om Yoga Studios (The First Respondent)?"

    6. I replied: "I really enjoy teaching and also like doing administration."

    7. The Second Respondent then asked me a question to the following effect: "Do you have any concerns working here at Om (the First Respondent)?"

    8. I replied: "My Tuesday evening shift where I work late until 8pm and then have to get up early the next day and start at 5:30am is tiring and if l was able to change anything in the roster I would like to change this shift. I am also concerned at being asked to teach a Tuesday morning class at 7:45am. This is at school drop off time and I will need to organise someone to take my three children to school."

    9. The Second Respondent then said to me words to the following effect: "Ideally Om Yoga (the First Respondent) would like to have you focus on teaching classes when the new studio opens, rather than doing general administration as well. Would mind doing other menial tasks around your teaching schedule?"

    10. I replied: "I don't mind doing other tasks besides administration around my teaching schedule."

    11. The Second Respondent then said to me words to the following effect: "If you end up doing less hours overall your rate of pay would increase so that I won't be any worse off financially. You current weekly pay will be maintained."

    12. The Second Respondent then said to me words to the following effect: "We want you to be happy at Om (the First Respondent). Because you are the first teacher employed you will get preference as to what classes you want to teach and what hours you want to work. What would your ideal teaching schedule look like, and what will your hours of availability be when the new studio opens?"

    13. I replied: "Teaching 10 tol2 classes a week would be the ideal amount for me. My preference for availability is the same as it has always been since I started working at the studio. I am available to work mostly during school hours but am happy to continue my current roster of one night shift and two early morning shifts. I am also available to teach a weekend class occasionally but not every week."

    14. The Second Respondent then asked me a question to the following effect: "Would you be able to teach a class on Sundays?"

    15. I replied: "No. Due to religious and family commitments I cannot teach a regular Sunday class but I can do it occasionally."

    16. At the end of the meeting, The Second and Third Respondents said to me words to the following effect: "Please put down in writing your ideal scenario for teaching including the types of classes you want to instruct as well as an example roster. We would prefer you to stay behind after your shift today and do this, or come in early before your shift tomorrow on Tuesday to do it."

    17. I replied: "It is school holidays at the moment. I already have other commitments and I cannot stay later today or come in earlier than my rostered shift tomorrow. But I can send it to you by email in the morning."

    18. The Second and Third Respondent then said to me words to the following effect: "It is okay for you to send it by email in the morning and not stay later today or come in earlier tomorrow."

    19. In this meeting there was no mention of termination, any performance issues, changing my part-time status or the official offer of a new employment contract.”

  2. Under the heading Events leading up to and including Verbal Termination, on Tuesday 3 July 2018, Myers set out her version of relevant events at [20] – [43] inclusive of her first affidavit as follows: [4]

    [4]        Myers affidavit – Pages 29 – 33 of Ex 1.

    “20. On Tuesday 3 July 2018 at 9:00 am I was writing an email expressing my ideal work scenario as requested by the Second and Third Respondents in the meeting on Monday 2 July 2018. I looked at the Fitness Award for part-time employees. I realised that I may not have been paid or rostered correctly according the A ward and that I needed to discuss this with my employer before I was able to put in writing my ideal work schedule as requested.

    21. On Tuesday 3 July at 10: 17am I sent the Third Respondent a text raising concerns about pay and rostering and making reference to the Fitness award. Annexed and marked 'A' is a copy of that text.

    22. I did not get a reply from The Third Respondent, so I assumed that it was fine for me to finish writing the proposal for my preferred teaching schedule in the afternoon when I started work, after I had had the chance to discuss these things in The Fitness Award with my employer. I could not do a proposal for classes and shifts without knowing if the First Respondent wanted to be paying me broken shift allowances and double time for certain shifts that I had already been doing.

    23. At 3pm on Tuesday 3 July 2018, I arrived at work for my rostered shift. As soon as I sat down at the reception desk I was approached by the Third Respondent who said to me words to the following effect: "Can I speak to you alone in the yoga studio upstairs please?"

    24. I replied: "Yes"

    25. When we were in the studio, the Third Respondent said words to the effect: "Why didn't you come in an hour earlier at 2pm to finish your ideas for what classes and hours you want to work? Isabel (the Second Respondent) has just left for the airport to return to Melbourne."

    26. I replied: "We agreed yesterday that I would email a proposal as I could not come in earlier than my scheduled shift. I sent you a text in the morning expressing my concerns and why I couldn't finish the proposal. I needed more time because I have become aware of things in the Fitness Award, which may affect the shifts I work and my pay. I wanted to discuss what was entitled to under the Fitness Award before I could finish a teaching proposal in writing. You did not reply so assumed it was alright to discuss these concerns I raised with you when I got to work."

    27. I asked the Third Respondent: "Did you receive my text?"

    28. The Third Respondent made a reply to the following effect: "I did receive your text but I have been too busy to reply."

    29. The Third Respondent then terminated my part-time employment with the First Respondent verbally and said words to me to the following effect: "Om Yoga (the First Respondent) has decided to terminate your part-time employment contract and offer you work instead as an independent contractor for fitness instruction."

    30. I then said to the Third Respondent: "Can Om Yoga (the First Respondent) change my permanent part-time contract to that of a contractor?"

    31. The Third Respondent said to me words to the effect: "Because you have been employed one day less than three months and are therefore still on probation, Om Yoga (the First Respondent) can do whatever it wants"

    32. I was distressed as I am a single mother and relied heavily upon having a permanent part-time position with regular fixed hours and pay for my financial security and wellbeing of my family.

    33. I asked the Third Respondent the following question: "What will be the rate of pay under the contractor arrangement?"

    34. The Third Respondent said to me words to the following effect: "I cannot remember but it starts at around $30 something per hour as a base rate and then increases with the number of students. We will send you the details."

    35. I explained: "If l am teaching the same number of classes as at the current rate of attendance, I will be making much less than my permanent part-time position. Yesterday I was promised that if my work hours were changed in any way that my pay would not be less. The loss of regular hours and permanent part-time work and income will affect me greatly."

    36. The Third Respondent said to me words to the following effect: "I am very sorry. You can choose how much notice, anywhere from one week to one month, before the new independent contractor arrangement will start. I will be happy to take your classes this evening and tomorrow morning as I understand this situation must be difficult for you."

    37. I replied: "Yes, I will take some sick leave and let Om Yoga (the First Respondent) know what amount of notice I want before the change of employment conditions would take effect."

    38. I then asked the Third Respondent: "Can you put in writing what we have discussed?"

    39. The Third Respondent said words to the following effect: "I will talk to Isabel about putting it in writing (Second Respondent)."

    40. On Tuesday 3 July at 4:11pm, The Third Respondent phoned and left a voice message. The voice message contained words to the following effect: "I have talked to Isabel (Second Respondent) and if Om Yoga (the First Respondent) puts the details of our discussion today in writing it will automatically terminate your existing part-time contract immediately, and then a new offer of employment as a contractor will be sent to you. If you don't like the terms and conditions of that new offer there will not be any negotiations and there will be no work for you at Om Yoga (the First Respondent)."

    41. On Tuesday 3 July at 6:59pm, I sent a text to the Third Respondent saying that I would not be able to take classes the following morning and that I would contact the Second Respondent about the new independent contractor arrangement. Annexed and marked 'B' is a copy of that text conversation.

    42. On Tuesday 3 July 2018, The Third Respondent acknowledged at 8:06pm by text that she had received my text sent at 6:59pm. Annexed and marked 'B' is a copy of that text conversation.

    43. On Tuesday 3 July 2018 at 8:24pm, I sent the Second Respondent an email asking her to verify what the Third Respondent had told me about the First Respondent changing my employment contract from permanent part-time to independent contractor. Annexed and marked 'C' is a copy of that email.

  1. The text message sent by Myers at 10.17am on 3 July 2018 (as referred to in paragraph [21] of her affidavit) first recorded that Myers was asserting that there were a “few things” in the fitness award (the word award was misspelt as “aware”) that hadn’t been followed. That text message [5] provided as follows:

    [5]        Annexure A to Myers first Affidavit – page 40 of Ex 1.

  2. The Myers text message last referred to was clearly an assertion by her that she had not been paid according to the relevant Fitness Industry Award 2010 (Fitness Industry Award).

  3. Annexure B to Myers first affidavit, sent by Myers to Pym at 6.59 pm on the night of 3 July 2018, advised Pym that she had had a “difficult afternoon after our discussion” that afternoon. After Myers had, by text sent at 8.06 pm, prompted Pym for a response as to whether she had received the Myers text of 6.59 pm, Pym confirmed that she had, and asked whether Myers had spoken with Wu.

  4. At 8.24 pm on 3 July 2018, Myers sent an email to Wu [6] which provided as follows:

    “Change of Employment Contract

    Elise Myers <[email protected] >          3 July 2018 at 20:24

    To: Isabel Wu – Meta Management <[email protected]>

    [6]        Page 44 of Ex 1.

    Hi Isabel,

    I received notification from Gaenor today that Om Yoga Studios want to terminate my current contract as a permanent part-time employee and rehire me as an independent contractor, is that correct?

    I look forward to you sending through a letter of offer outlining the terms and conditions of the new arrangement.

    Kindest Regards,

    Elise Myers.”

  5. At 10.08 am on 4 July 2018, Wu responded by email [7] as follows:

    [7]        Page 44 of Ex 1.

    “Isabel Wu – Meta Management <[email protected]>     4 July 2018 at 10:08

    To: Elise Myers <[email protected]>

    Cc: “Gaenor Pym ([email protected])”

    Hi Elise,

    Following our meeting on Monday (July 2), your further discussions with Gaenor, and in response to your email below, I am confirming the termination of your employment in line with the terms of your employment agreement.

    As our efforts to reach an arrangement that meets the needs of om wellness and your preferences and availabilities were unsuccessful, we are providing you with a one week notice period making your last day as a part-time employee Tuesday July 10, 2018. During this period, you will be required to attend work as usual.

    We will provide you with the details of our contract teaching offer (in a follow-up email) and the week to consider its terms. If you wish to accept the offer once you have received and reviewed it, please let us know the times you will be available for teaching. We hope this will enable us to continue to work with you on a basis that is more suitable to both.

    If you have any questions, please call or email me or speak to Gaenor.

    Regards,

    Isabel.”

  6. The Response filed on behalf of the respondents [8] on 13 November 2018 was as follows:

    [8]        Pages 118 – 122 inclusive of Ex 1.

    “Response to applicant’s claims for final orders

    The Respondents oppose to the making of the following orders sought in the Applicant’s claim under the Fair Work Act 2009 (Cth) (the Act) filed 15 October 2018 and served on the Respondents on 16 October 2018:

    1. An order for the payment of compensation to the Applicant for economic loss and psychological injury in the amount of $25,000.

    2. An order for the imposition of a pecuniary penalty payable to the Applicant.

    Grounds of opposition or further orders

    1. The Respondents oppose the making of an order that the First, Second and Third Respondents have contravened sections 340 and/or 358 of the Act and that the Second and Third Respondents are accessorily liable for the contraventions pursuant to section 550 of the Act on the following grounds:

    Commencement of employment and performance issues

    (a) The Applicant commenced employment with the First Respondent as a part-time Yoga Instructor on 4 April 2018. In her position, the Applicant was responsible for instructing yoga classes and performing counter and administrative duties.

    (b) On or around early May 2018, the Respondents identified that the Applicant was not performing her role to a satisfactory standard. In particular, the Applicant engaged in multiple instances of unsatisfactory performance, including but not limited to:

    (i) the Applicant’s work was careless and sloppy;

    (ii) the Applicant was unable to complete simple and menial tasks to a satisfactory standard, such as vacuuming and sweeping;

    (iii) the Applicant failed to demonstrate a satisfactory sense of responsibility and initiative;

    (iv) the Applicant often had a negative attitude, poor work ethic, and was unable to resolve simple problems or complete assigned tasks to a satisfactory standard; and

    (v) the Applicant regularly left her shift without authorisation,

    (the Performance Issue).

    Consultations regarding unsatisfactory performance

    (c) The Third Respondent consulted the Applicant in regards to the Performance Issues. In an attempt to improve the Applicant’s performance, it was agreed that the number of tasks allocated to the Applicant would be substantially reduced. The Applicant was also granted permission to leave the workplace to transport her children to and from school which was of concern to her.

    (d) On 22 June 2018, the Third Respondent met with the Applicant to discuss her performance since the reduction of her duties as described in paragraph 1(c) above (the Consultation). At the Consultation, the Third Respondent advised the Applicant that her performance had not improved to a satisfactory standard.

    Termination for unsuitability and unsatisfactory performance during the probationary period

    (e) The Second and Third Respondents arranged a meeting with the Applicant on 2 July 2018 to discuss the Applicant’s suitability for the role and the Performance Issues (the Meeting).

    (f) At the Meeting the following events occurred:

    (i) it was agreed by all parties that the Performance Issues primarily related to duties other than instructing yoga classes, that is, the Performance Issues related to the Applicant’s counter and administrative duties;

    (ii) the Second and Third Respondents made attempts to address the Performance Issues; however, the Applicant responded in an evasive and unhelpful manner such that no progress was made;

    (iii) the Second and Third Respondents advised the Applicant that the employment relationship was no longer tenable due to the Applicant’s unsuitability for the role and unsatisfactory performance during the probationary period;

    (iv) the Applicant was advised that her employment would be terminated unless she was able to formulate a proposal that would address the Performance Issues;

    (v) the Applicant was unable to offer any productive suggestions and failed to cooperate with the Second and Third Respondents to address the Performance Issues.

    (g) Despite having had the Performance Issues raised for discussion on previous occasions, including during the Consultation, the Applicant showed no awareness of the Performance Issues and failed to recognise the concerns raised by the Second and Third Respondents.

    (h) Therefore, the Applicant’s employment with the First Respondent was terminated at the Meeting for unsuitability for the role and unsatisfactory performance, in accordance with the discussion held.

    (i) Before the Meeting ended, the Second and Third Respondents suggested that the Applicant may consider entering into a new teaching-only contract whereby the Applicant would be engaged to teach only (the Teaching Contract). The Teaching Contract was proposed in an attempt to afford the Applicant some work while still being able to care for her children as required. The Applicant would also not be required to undertake any counter or administrative duties under the Teaching Contract, which was the subject of the Performance Issues.

    (j) The Applicant expressed interest in the Teaching Contract. The Second and Third Respondents requested the Applicant to formulate a written proposal and timetable for the Teaching Contract that would suit the Applicant’s personal and family circumstances. The Second and Third Respondents requested the Applicant to send the written proposal and timetable to them by 3pm on 3 July 2018. The Applicant agreed and stated that she would attend the yoga studio at 2pm on 3 July 2018 to complete the task.

    Events following termination

    (k) On 3 July 2018, the following events occurred:

    (i) the Applicant did not attend the yoga studio at 2pm;

    (ii) the Applicant sent the Third Respondent a text message stating that she believed that there were matters regarding “split shifts” under the Fitness Industry Award 2010 (the Award) that the First Respondent had not been following (the First Complaint);

    (iii) the Applicant eventually arrived at the yoga studio at 3pm on 3 July 2018, however she had not completed the written proposal and timetable for the Teaching Contract.

    (l) On 4 July 2018, the following events occurred:

    (i) the Applicant attended the yoga studio to complete her outstanding timesheets;

    (ii) the Applicant complained that she had been underpaid in breach of the Award, and that she would be contacting the Fair Work Ombudsman (the Second Complaint).

    (m) The Respondents submit that:

    (i) the First Complaint and the Second Complaint were both made after the termination of the Applicant’s employment on 2 July 2018;

    (ii) the decision to terminate the Applicant’s employment, on 2 July 2018, predated the First Complaint on 3 July 2018, and the Second Complaint on 4 July 2018;

    (iii) there has been no contravention of section 340 of the Act as there is no causal nexus between the First Complaint and the Second Complaint, and the termination of the Applicant’s employment;

    (iv) the substantive and operative reason for the Applicant’s termination was because of her unsuitability for the role and unsatisfactory performance during the probationary period.

    Proposal of Teaching Contract

    (n) The Respondents submit that:

    (i) the Teaching Contract would have been on substantially different terms and conditions to the Applicant’s employment arrangement;

    (ii) under the Teaching Contract, the Applicant would have only been required to attend and instruct yoga classes and would not have been required to undertake any counter or administrative duties;

    (iii) the Teaching Contract was proposed in an attempt to afford the Applicant work with the flexibility to be able to care for her children;

    (iv) the Respondents did not threaten the Applicant that her employment would be terminated in the event she did not elect to take up the Teaching Contract, given that the Applicant’s employment had already been terminated before the Teaching Contract was proposed;

    (v) there has been no contravention of section 358 of the Act as the Respondents did not dismiss the Applicant in order to engage her as an independent contractor to perform the same, or substantially the same, work under a contract for services;

    (vi) the substantive and operative reason for the Applicant’s termination was because of her unsuitability for the role and unsatisfactory performance during the probationary period.

    2. The Respondents oppose the making of an order for compensation and imposition of pecuniary penalties payable to the Applicant on the grounds stated at paragraph 1 above.

  7. It is of note that by paragraph 1(m)(i) of the respondents’ Grounds of opposition, that it is asserted that Myers’s First Complaint concerning underpayment (as set out in Ground 1(k)(ii)) was made on 3 July 2018, namely at a time after the purported oral termination of the applicant’s employment on 2 July 2018. A question for determination, therefore, is when Myers’s employment was terminated. Was it terminated on 2 July 2018, 3 July 2018 or 4 July 2018?

  8. The contract of employment between Myers and the first respondent [9] provided for the manner and circumstances of termination as follows:

    “TERMINATION

    A salaried employee may resign or be terminated under this contract governed by the following:

    (a) Notification in writing by either party, during and up to the end of the probationary period. No further obligation or compensation by either party will apply.

    (b) Once the qualifying period is completed, one (1) month’s notice in writing at any time from the Company or one (1) month’s salary in lieu of such notice at the Company’s discretion.

    OR

    (c) Any material breach by the employee of any of the terms of this agreement, whereupon no notice or payment in lieu will be provided.

    (d) Termination will be immediate in the case of dismissal due to serious misconduct as well as blatant non-performance of duties by the employee as contained in this job description. The management reserves the right of legal action.”

    [9]        Pages 156 – 157 of Ex 1.

    (Emphasis added)

  9. No written notice of termination, as was required under the contract, was provided by or on behalf of the first respondent to Myers, until the Wu email was sent to Myers on 4 July 2018 at 10.08 am. The Court finds that the employment of Myers by the first respondent was terminated on 4 July 2018 consequent upon the sending of such email.

  10. At paragraph 17 of her Affidavit filed on 11 February 2019, Wu swore that on 3 July 2018 she was advised by Pym that Myers had said to her that Myers had made an inquiry to Fair Work in relation to her minimum rates of pay and entitlements. Paragraph 1(l)(ii) of the Grounds of opposition contended that it was on 4 July 2018 that Myers had complained about underpayment, and that she would be contacting Fair Work about it. At paragraph 49 of the first Myers affidavit, Myers deposed that she had attended at the first respondent’s workplace at about 3 pm on 4 July 2018 for the purpose of completing a timesheet as requested by Pym. At paragraph 52 of that affidavit, Myers deposed that she told Pym at that time that she had spoken to Fair Work about her rates of pay and entitlements. Insofar as the respondents have asserted in paragraph 1(m)(i) of the Grounds of opposition that the Second Complaint was made after the termination of employment, the Court accepts that that was so, because the termination was effected by the email received by Myers at 10.08 am on 4 July 2018.

Events leading up to Termination

  1. Myers submitted that there was no contractual basis for the termination of her employment. She pointed to the following as evidence of her having been praised by Pym for her work performance at Om, as opposed to her being the subject of criticism:

    a)text messages between Pym and Myers of 17 April 2018 (5.12 pm) [10] which provided:

    [10]      Page 46 of Ex 1.

    b)text messages between Pym and Myers of 25 April 2018 (8 am) [11] (wherein Pym referred to Myers as her “EARTH SIGN”) which provided:

    [11]      Page 47 of Ex 1.

    c)text messages between Pym and Myers of 26 April 2018 (11.23 am) [12] which provided:

    [12]      Page 48 of Ex 1.

d)text messages between Pym and Myers of 6 June 2018 (2.28 pm) [13] which provided:

[13]      Page 49 of Ex 1.

e)On 3 July 2018 Pym posted on the first respondent’s OM Wellness Centre Facebook page her appreciation for the receipt of a “mystery gift” left by a person who described themselves as a “member”. The thank you note accompanying the gift read as follows:

“Dearest Gaenor and Elise

Congratulations on the impending reopening of OM Studio! Thank you for all you do, for the care, respect and LOVE that you bring to every moment with your devoted community. You are appreciated and loved beyond measure! Thank you from the bottom of my heart!! Love and peace always from an adoring and grateful member.”

The response posted on the first respondent’s Facebook page that day, by Pym, was as follows:

“A BIG thank you to our mystery gift giver this morning!! I love mysteries like this there so exciting! More importantly its very touching that one of you shining souls thought about us in this way. My heart has been full to overflowing since receiving this so please accept my deep gratitude (Emojis)

With love

Gaenor” [14]

[14]      Pages 51 and 52 of Ex 1.

  1. As to Pym’s reference to Myers as being her Earth Sign in the text referred to above, Pym was cross-examined by Myers as to what Pym understood that to mean. Her answer was that it meant that someone who was an Earth Sign was very hard-working and very efficient. Such a descriptor is entirely at odds with Pym’s characterisation of Myers in her evidence as being sub-standard in terms of her work performance. Pym’s cross-examination on point was as follows: [15]

    [15]      Transcript page 149.24 - .35.

    “MS MYERS:   So, did you send that text?‑‑‑Yes.  I did.

    Turn to page 47.  Could you please state the date?‑‑‑25 April.

    Could you read that text, all the writing on the page?‑‑‑Yes:

    When at work – when you at work, and you need something done right, you got to ask the earth sign.  Thank you for being my earth sign angel.

    Could you explain what earth sign means?‑‑‑Yes. Elise is a Capricorn.  This is an earth sign.  Astrologically speaking, an earth sign, or a Capricorn in particular, are very hardworking and very efficient.”

  2. The texts and Facebook posts referred to and quoted above clearly do not reflect the level of work dissatisfaction with Myers’s work performance which was said by Pym and Wu to have existed since the commencement of Myers’s employment in April 2018. Pym deposed to unsatisfactory performance by Myers soon after Myers commenced work in April 2018, saying that she had raised concerns with Myers on a number of occasions in April and May 2018 in an attempt to improve Myers’s work performance. [16]

    [16]      Paragraph 6 of Pym Affidavit filed on 11 February 2019 – page 125 of Ex 1.

  3. During cross-examination, Pym acknowledged that during the time of Myers’ employment, Pym made no record of any poor work performance by Myers. [17] The most telling excerpts of the transcript in that regard which cast a poor light on Pym’s management and administration skill-set is found at Transcript pages 147.1 – 152.30 as follows:

    [17]      Transcript page 150.15.

    “MS MYERS: We’re going to paragraph 6?---Yes.

    It says here that you became aware of my performance issues soon after I was employed; is that correct?---I noticed some issues. Yes.

    So that was in April?---Yes.

    And it says you addressed these concerns a number of times in both April and May; is that correct?---Yes.

    So, you identified issues in April – and when did termination happen?---July.

    So, for three months, you tolerated performance issues; is that correct?---Yes.

    I put it to you that you tolerated it because there were no performance issues or discussions, or warnings given about performance?---That is completely incorrect.

    Show me an email, a text or anything that shows conversations between you and I where you addressed performance issues?---I have no texts, nor emails, however we did have conversations.

    Do you have anything in writing?---No.

    Did you consult Isabel regarding these performance issues?---Yes. I did.

    And what was Isabel’s recommendation to you?---I can’t recall exactly the conversation or the contents of the conversation, but she told me that I was to keep an eye on you and report back to her.

    Did she give you any instructions as to what your requirements were in a managerial role when dealing with poor performance?---No. She did not.

    Did she ask you to write things down?---I can’t recall but things were written down further on when I began the emails.

    So, you have in writing things that state “Elise’s performance was poor”?---Are we speaking between myself and Isabel, or myself and yourself?

    Anywhere in writing?---No. Not in writing.

    But Isabel asked you to keep written records of conversations that you had with me regarding performance; is that correct?---I can’t recall.

    So, you can’t recall if your supervising manager instructed you to keep written records?---No. I can’t.

    Okay. And you did not keep any records – no written records? So, any performance reviews that you did – no written records?---No.

    Any meetings about performance – no written records?---No.

    Any training that you gave with relation to improving performance issues – no written records? Is that correct?---I have no written records.

    I would like to now go to page 46. Miss Pym, did you ever put anything in writing regarding Elise’s performance at all, the quality of her performance, good or bad? Did you ever put anything in writing?---Not that – I don’t believe so. No.

    Okay. So, you never put in writing anything good about her performance either?---No. I did. No. Forgive me.

    No. You didn’t. Okay. Thank you.

    …

    So, during this time of employment of three months, where you said you identified poor performance issues - - -?---Mmm.

    - - - there were no written records of poor performance issues; is that correct?---It appears so. Yes.

    But is there in writing you stating that, in fact, Elise’s work was good?---There is.

    All right. Let’s now go to Monday, the meeting of Monday, 2 July?---May I make further comments on those? Is that allowed?

    HIS HONOUR: Yes. Do that?---Those messages were sent in April. Elise began working with us in April.

    Well, they do extend to page 49 - - -?---Into June. Yes. The beginning of June.

    - - - to 6 June?---Yes. I’m not an unreasonable person. When somebody does something as a new employee, course I’m going to thank them.

    MS MYERS: Is that all?---Yes.

    Okay. All right. So now we’re discussing Monday, 2 July - - -?---Which page am I on?

    - - - and the meeting that happened. I will – we can go to your page affidavit?---Okay.

    Let’s go there now.

    HIS HONOUR: What page?

    MS MYERS: We’re going to go to page 128.

    So, we’re discussing the meeting, 2 July 2018?---One moment. Yes.

    Now, Isabel was in Brisbane at this time; is that correct?---Yes.

    And what was her role? Why was she in Brisbane?---She was in Brisbane periodically to keep an eye on how the business was going.

    So, she made decisions directly involved in the operations of the business?---Yes.

    And the studio was being opened, but there was no set date yet. The new fitness studio, it was to be opened?---The fitness studio.

    Did you have a fixed - - -?---I can’t recall.

    Okay?---I really can’t recall. The dates moved constantly.

    So, before this meeting, there was – you had kept no records of performance issues; is that correct?---Besides the text messages, no.

    Of course. Sorry. I will restate that question. There had been nothing in writing regarding poor performance?---Between myself and Isabel? Is that what we’re asking?

    Between anyone?---Okay. Let’s say no.

    Okay. But there was – you did, on numerous occasions, send texts to myself praising my good work; is that correct?---Correct.

    Okay. In light of this, I put it to you that the meeting on 2 July was about preferences for teaching classes, scheduling when the new studio opened and had nothing to do with performance issues?---I would disagree.

    I put it to you that there were no criticisms of my performance in that meeting?---Isabel ran the meeting. I cannot recall the full scope nor details of the meeting, but I’m quite sure that they were discussed.

    And I put it to you that termination was never discussed in that meeting?---A change was discussed.

    Was termination discussed?---The word “termination” I don’t recall being discussed

    - - -

    Okay?--- - - - in that meeting.

    Now, are you able to show me any texts or emails or minutes of this important performance meeting?---No.

    There weren’t any emails leading up to it?---No.

    Was Elise made aware that it was a performance meeting?---No.

    So, there was a performance meeting scheduled for an employee; did you intend to make accusations during that meeting?---I don’t recall making accusations during that meeting.

    Do you – were you going to discuss performance?---Yes.

    That was your intention?---Yes.

    Did you notify the employee of your intention to discuss - - -?---I did not.

    So, you did not notify me any intention to discuss performance at a meeting?---I did not.

    Did Isabel?---I don’t know.

    So – okay. Did you keep minutes of this meeting?---I did not.

    So, this was an importance performance meeting?---Yes.

    As a manager, are you aware of any requirements to keep records of performance meetings?---Again, I was the coordinator, and no, I was not aware, which is what I stated earlier when I said I don’t know anything about HR.

    Okay. So, you cannot produce any text, email, minutes for the meeting - - -?---No. Still no.

    - - - related to this important performance meeting?---No.”

  1. Pym admitted at Transcript page 151.37 that she could not recall the word “termination” having ever been discussed at the 2 July 2018 meeting. At paragraph 15(b) of her Affidavit, Wu deposed that on 3 July 2018, just after 3 pm, she had told Pym to tell Myers that her employment had been terminated within her probationary period, as had been discussed on 2 July 2018. It is unconvincing to this Court that an experienced management and business consultant such as Wu would on 3 July 2018 seek to assert that termination of Myers’s employment took place on 2 July 2018, when she well knew that she had not complied with a prerequisite for termination by the first respondent of Myers’s employment, namely the giving of written notice of any such termination, something which wasn’t done by her until 4 July 2018.

Complaints about Work Performance

  1. Myers was cross-examined at length about assertions of poor work performance made by Pym as set out by Pym in paragraph 7 of her Affidavit. [18] The Court found Myers’s responses to be truthful and convincing. At transcript page 33 – 66 inclusive, Counsel for the respondents carefully put to Myers alleged examples of her poor work performance. Myers confidently, and with precision, denied the allegations put to her. For example, though Myers admitted to making typing errors, something that was put to her as constituting sub-standard work performance, Myers explained that she would correct the errors immediately and move on. Such practice is not uncommon. When it was put to Myers that an example of her having failed to fix a printer was evidence of her lacking initiative, Myers confidently replied that there were a lot of problems experienced at the business with the printer which were technical in nature, and which couldn’t be fixed by her. She referred to there being “connection errors” on numerous occasions.

    [18]      Pages 125 – 126 of Ex 1.

  2. As to an assertion that she would arrive late for her shift, Myers explained that she had asked Pym if she could start a bit later on occasions in winter when she would have to arrive in the dark when  rostered on to perform an early class. Myers explained that Pym had agreed to her doing so because there was no external security lighting and because it was a reasonable request based on security considerations. Such evidence of Myers on the point was cogent, clear, and reasonable. The cross-examination of Myers on point evidenced a common sense resolution by each of Myers and Pym of a serious security issue which was resolved consensually. It is another example of why the evidence of Myers is to be preferred to that of Pym on each point of contention. The evidence on point during the cross-examine of Myers relating to a later arrival before the start of her roster early of a morning in winter was as follows: [19]

    [19]      Transcript page 109.5 - .35.

    “All right.  The permission to arrive late ‑ ‑ ‑?‑‑‑Yes.

    ‑ ‑ ‑ explain what you meant by that?‑‑‑Your Honour, in the – I just felt unsafe arriving at work on my own in the dark.  There were no security cameras, and I had come one morning and there were cars in the car park that left when I left.  And there were no lights on, and I asked Gaenor – I said I felt – feel unsafe because I had to walk up a corridor on my own and leave this door open, and then walk out the corridor on my own in the dark building.  I just said I feel unsafe.

    Yes?‑‑‑So I said – suggested can you – can we fix the timing of the lights to go on, and I said is it okay if I come a bit later and I wait for a student to come and we go up together so there’s two of us, and she said that was perfectly fine.  And it was an understanding that I would – I said I will make up those 10 minutes throughout the week and I always did.  I never took breaks.

    And what did she say to that?‑‑‑She was perfectly okay with that.

    And was there ‑ ‑ ‑?‑‑‑And I actually think that’s in the emails.  I don’t have any access to my business emails, but I – I know there was an email sent about the issue of me, you know, feeling unsafe or saying to the students, “Elise was going to wait”.

    All right?‑‑‑There’s something in the emails about it, but I don’t have – I can’t look because I have no access to those emails.  So, I had express permission to come late on my morning – early morning, and it – I was given permission by Gaenor that that would be made up during the week.  I never took breaks at work.  So – and I often worked a little bit back.  So, it was always made up. 

    Okay.  You said there were no CCTV?‑‑‑No.  There was – that’s – I – I thought originally there was, because there was a sticker, but when I asked, they said it was just a sticker.”

  3. All of the other alleged performance issues which were put to Myers were denied in a sensible, considered and reasonable way. Myers explained that lists of tasks emailed to her by Pym were understood, between her and Pym, as not being able to all be achieved on one day during one roster. For example, as to the email from Pym to Myers (directed to OM Yoga Studios) dated 20 June 2018, [20] Myers explained that matters such as the refilling of hand towels in the bathroom was complicated because of the presence of workers who were attending to the construction of the new studio, and who were using far more hand towels than was usual. So much was entirely understandable in the circumstances. Myers explained during her cross-examination that she didn’t receive notice of what was contained in Pym’s email of 20 June 2018 until after she had opened the email inbox upon commencement of her roster on 21 June 2018. Her cross-examination on that point was as follows: [21]

    [20]      Page 133 of Ex 1.

    [21]      Transcript pages 107.35 – 109.5.

    “And it was directed to OM Yoga Studios.  So, is that your on-site email access address?‑‑‑Correct.  Correct.

    So, would you have received any notice of that intended list or that actual list between the time of the sending of the email at 4.07 pm on 20 June until you got to work on 21 June at 5.30 am?‑‑‑No.

    So, it was only at 5.30 am that you had a chance to look at the ‑ ‑ ‑?‑‑‑Yes, I wouldn’t probably have checked an email.  I would have just set up for class.

    All right.  And on 21 June, you arrived at work at 5.30?‑‑‑Yes.

    Would you have set up for the class at 6?‑‑‑The class, correct.

    The class would have gone from 6 till when?‑‑‑7.

    6 till 7?‑‑‑Yes.

    Would you have had to have done something after the class?‑‑‑Yes.

    What?  What did you have to do?‑‑‑It depends if there was equipment used.  Usually, it was students – I should stop calling them students, sorry.  Clients.  If they wanted to talk to you, that would probably be the thing that would take longer, but things packed up, equipment packed up.

    How long does that take after 7 pm?‑‑‑If no client talks to you, 15 minutes.

    If they do?‑‑‑Longer, because they’re talking to you.

    Right.  Say, until when?‑‑‑7.15/7.20.

    Well, you’ve said if they ‑ ‑ ‑?‑‑‑You mean if someone talked to you.

    If they didn’t talk to you, 7.15?‑‑‑Yes.  It was 10 ‑ ‑ ‑

    If they did talk to you ‑ ‑ ‑?‑‑‑10 to 15 minutes.  10 – 10/15 minutes after a class if ‑ ‑ ‑

    Add 10 minutes onto whatever you had to do after the class?‑‑‑If they talked to me?  Sorry.

    If you finished a class at 7, did you have to take any time after 7 to get things in order after the class had finished?‑‑‑Yes.

    How long did that take?‑‑‑10 to 15 minutes.

    All right.  And if students or clients talked to you in addition to you having to do that, how long would it take, as a general rule, or usually, for you to get through both of the tasks?‑‑‑It ‑ ‑ ‑

    Cleaning up, squaring away, as well as talking to the students?‑‑‑It could take 20 to 30 minutes ‑ ‑ ‑

    All right?‑‑‑ ‑ ‑ ‑ if people stayed and talked.

    So, then, you had from 7.30 that day, about, let’s say ‑ ‑ ‑?‑‑‑Yes.

    ‑ ‑ ‑ until 10.30 am?‑‑‑Correct.

    So, you had three hours ‑ ‑ ‑?‑‑‑Yes.

    ‑ ‑ ‑ to do those – or to prioritise the matters in the email of 20 June;  is that correct?‑‑‑Correct.  I may have had another class.  I can’t remember.

    All right?‑‑‑At 9 o’clock.”

  4. The explanations given in relation to each of the matters highlighted in that email were in the nature of someone having to attend to multiple duties, within a limited 5 hour time frame between 5.30 am and 10.30 am, both before and after at least one (1), if not two (2), yoga teaching sessions. There was simply no time to do everything, as was unreasonably suggested by Pym ought to have been the case. The fact that that email is headed “Jobs Thursday Please” was of no moment in the light of what the Court finds was the context of the sending of the email – namely that Pym would send it as a reminder of what needed to be reasonably done in due course, as opposed to a requirement that the listed items be attended to on the one day during one shift. That is also the case in relation to headings such as “Today’s Jobs” on other emails sent in a similar context by Pym to Myers. [22]

    [22]      See emails of 21 June 2018, 22 June 2018 and 27 June 2018 at pages 134 – 137 inclusive of Ex

  5. The evidence of Myers during her cross-examination on point was convincing, as follows: [23]

    [23]      Transcript pages 37.25 – 38.36.

    “Now, on 20 June 2018 Ms Pym starts sending you emails of your daily tasks, doesn’t she?---Yes. That’s correct.

    Let’s turn to the first of these emails, to page 133. So, do you agree this is an email- - -?---I’m sorry, I’m still turning to the page.

    Of course. Sorry?---Was that 133?

    133. And it might be useful if you pull out page 155.

    HIS HONOUR: Well, probably doesn’t need to pull it out.

    THE WITNESS: So, pull it out or just - - -

    HIS HONOUR: She can just thumb it, can’t she?

    MR MACKIE: Flick back and forth?---Okay. Yes.

    HIS HONOUR: Yes, Mr Mackie.

    MR MACKIE: Thank you.

    Now, these are jobs for you to do tomorrow, isn’t it?---Correct.

    So that’s Thursday, 21 June?---Correct.

    So, these are the jobs for you to do in one day?---No.

    Not one day?---No.

    It says at the front:

    Please do the following tomorrow.

    Doesn’t - - -?---Yes. But that did not mean that I had to finish everything on that day. I would work my scheduled hours. I would work through the jobs as best I could. I was not asked to stay overtime if they were not all completed.

    So, she wasn’t expecting you to finish this tomorrow?---I do not  expect that that was a list for me to have absolutely everything done on the list finished.

    I put to you that the words “Please do the following tomorrow” means you should do the following tomorrow, not later?---I would do my best to start them and see what gets completed throughout the day.

    Do you agree that she – that from this phone “do the following tomorrow”, she wants you to do them tomorrow. Do you agree that’s what she - - -?---I agree that she would like to me start them. If there were any that I didn’t get through, I would continue when I started work. And, your Honour, I would – can I add that that’s how the studio operated, that I would start tasks – she would give me tasks to do, and I was actually the one that asked her to start making lists because often she would change her mind. Halfway through a task, she would instruct me to do something different. And I asked if we could make things more efficient; she could do a list of jobs that I could be working on. So that’s when the task list started.

    You said if you didn’t finish it, you didn’t finish it; is that right?---I would immediately start it the next day.

    Okay?---Because I was teaching classes in between these times as well, your Honour.”

  6. It is also of note that the email sent by Pym to Myers on Wednesday, 20 June 2018 listed twelve (12) matters to be attended to and related to ‘Jobs Thursday Please’. Exhibit 2 is a record of Myers time sheets. For Thursday, 21 June 2018, Myers was rostered on between 5:30am and 10:30am. As explained by Myers in her cross-examination, she could only perform tasks listed in the email sent to her by Pym in the time available to her after she had performed tasks necessarily to be undertaken by her in relation to her taking yoga classes. The extensive list contained in the email of 20 June 2018, as reasonably suggested by Myers in her evidence, had to be looked at in the context of it being work able to be managed after the yoga teaching had taken place.

  7. The Court is satisfied that Myers was efficient and competent. She carried out her duties as was required pursuant to the written contract. The Court is satisfied that there is no basis for holding that Myers was guilty of serious misconduct, or blatant non-performance of duties justifying her termination of employment. Nor is there any basis for the assertion that Myers had committed any material breach of any of the terms of the written contract agreement. [24] There was no contractual breach justifying her termination.

    [24]      Page 157 of Ex 1.

Motivation for Termination

  1. The alleged circumstances of 2 July 2018 and 3 July 2018 relating to the question of termination of Myers’s employment, as sought to be portrayed by each of Pym and Wu, are implausible. Quite apart from the glowing praise of Myers by Pym leading up to July 2018 as evidenced in the text messages referred to above, the posting by Pym of the Facebook message which praised both Pym and Myers – on the day after it was said by both Pym and Wu that Myers’s employment had been orally terminated for alleged poor work performance – was entirely inconsistent with such claims. The Court does not accept the truth of the claims of Pym and Wu in that regard.

  2. The Court finds that the termination of Myers’s employment was adverse action taken against Myers because she sent, at 10.17 am, the 3 July 2018 text message to Pym asserting the Fitness Industry Award had not been complied with. That was a prohibited reason for the taking of adverse action against Myers. [25] The respondents have not proven otherwise. [26]

    [25] Section 360 of FWA.

    [26] Section 361 of FWA.

  3. The Court further finds that the decision to terminate was made by Wu in consultation with Pym. Pym in cross-examination conceded that rather than being a manager she was a co-ordinator. The Court finds that the first respondent ought not to have placed Pym in a position where she was unqualified in matters of human resource management. Pym admitted that she abhorred confrontation. The Court finds it unconvincing that, whilst allegedly acting in concert with Wu to manage a deteriorating employment situation over some months, Pym would neither make a note of any relevant complaint about Myers’s performance, or otherwise write down in report form her complaints about such lack of performance. The Court finds that Pym would not have failed to do so had any of the alleged performance failures occurred.

Hurt and Distress

  1. The Court accepts that Myers was hurt and distressed as a result of the unjustified termination of her employment. The Court finds that it was unreasonably harsh of Pym to call Myers in to sign off on timesheets on 4 July 2018 at a time when Pym knew that Myers had taken sick leave and had said that she was unwell.

  2. Myers justifiably felt aggrieved at having been accused of sub-standard work performance in circumstances where she had received glowing praise from Pym concerning her work prior to 3 July 2018.

  3. Myers is deserving of compensation for the hurt and distress suffered by her in that regard.

Compensation and Civil Penalty Orders

  1. The Court finds that the applicant has suffered financial loss by reason of the termination of her employment, but will hear further submissions from the parties as to the quantum of such loss which might be ordered to be paid by way of compensation pursuant to the provisions of s. 545(2) of the FWA should the parties be unable to agree on the quantum of same.

  2. The Court will also hear the parties as to the quantum of any civil penalties to be imposed by reason of the Court having found that provisions of the FWA have been contravened.   

Findings

  1. The Court finds that Myers had a workplace right within the meaning s. 341 of the FWA. She was entitled to the benefit of a workplace instrument relating to her pay, conditions of employment and employment benefits, namely under the Fitness Industry Award.

  2. By her said text message of 3 July 2018 complaining about the award not having been followed, Myers was seeking to exercise a workplace right by making a complaint or inquiry concerning her not having been paid properly by the first respondent.

  3. By terminating the employment of Myers, the first respondent took adverse action against Myers because she had sought to enforce a workplace right, and in doing so it acted in contravention of the provisions of s. 340 of the FWA.

  4. Together, Pym and Wu were each ‘involved in’ the said contravention and are accordingly accessorily liable for such contravention pursuant to the provisions of s. 550(1) of the FWA. The Court finds that each of Pym and Wu sought to portray the termination of Myers’s employment as based on work performance issues, when in fact it was due to Myers pointing out that she had been underpaid, and that the Fitness Industry Award had not been followed. They were motivated by a desire to avoid the financial consequences which would be suffered by the first respondent if it was required to pay to Myers her due entitlements.

  5. As to the claim that the respondents contravened the provisions of s. 358 of the FWA, this claim has not been made out. The Court finds that rather than terminating Myers employment for the purpose of re-engaging her as an independent contractor to perform the same or substantially the same work under a contract for services, it was intended that Myers be re-engaged to perform substantially different work. The Court accepts that the work the subject of consideration upon termination was largely to be associated with teaching yoga in an expanded yoga business. The evidence before the Court suggested that administrative tasks previously undertaken by Myers would not form a part of any new contract for services arrangement.

  6. Myers has failed to satisfy the Court that the respondents have either jointly or severally contravened the provisions of s. 358 of the FWA.

  7. In the light of the Court’s findings, the Court will hear the parties as to the appropriate form of orders to be made consequent upon the handing down of the Court’s reasons.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:  

Date:  29 October 2019


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Key Legal Topics

Areas of Law

  • Employment Law

  • Statutory Interpretation

Legal Concepts

  • Breach

  • Causation

  • Intention

  • Remedies

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