Ohlsen v Melbourne's Finest Removalist

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Ohlsen v Melbourne’s Finest Removalist [2024] FedCFamC2G 1289

File number(s): MLG 2520 of 2024
Judgment of: JUDGE TAGLIERI
Date of judgment: 27 November 2024
Catchwords: INDUSTRIAL LAW – review of a decision of Registrar – hearing de novo – small claims – underpayment claim – employment period covers three days – whether engaged as a full-time employee or casual employee – evidence indicates casual employee – underpayment not demonstrated – application dismissed
Legislation:

Fair Work Act 2009 (Cth) ss 15A, 124, 125A and 125B

Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)

Superannuation Guarantee (Administration) Act 1992 (Cth)

Road Transport and Distribution Award 2020  
Cases cited: Canvin & Jesney [2021] FedCFamC2F 145
Division: Division 2 General Federal Law
Number of paragraphs: 36
Date of hearing: 22 November 2024
Place: Heard in Melbourne & Delivered in Hobart
The Applicant: In person
The Respondent: In person

ORDERS

MLG 2520 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

MARK OHLSEN

Applicant
AND:

MELBOURNE'S FINEST REMOVALIST

Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

27 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The Application for Review filed 8 October 2024 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE TAGLIERI

  1. On 25 July 2024, Mark Ohlsen (“the applicant”) filed an application for a small claim under the Fair Work Act 2009 (Cth) (“the Act”) against his former employer Melbourne’s Finest Removalist (“the respondent”). The applicant was employed over a period of three days and completed shifts on two days of those days.

  2. The applicant's claim was that he is owed compensation from the respondent by virtue of a breach of the National Employment Standards contained within the Act. The total of his claim was for $1,916.90, which the applicant details as unpaid wages.[1]

    [1] Small claim under Fair Work Act 2009 Form 5 filed 25 July 2024, ‘Part H – Remedy sought’ and ‘Part I – details of claim’.

  3. Ultimately, the dispute between the parties relates to whether the applicant was employed as a casual employee or full-time employee and whether he was underpaid wages.

    ORIGINAL DETERMINATION AND ORDER

  4. As this was a small claim, it was initially heard and determined by a Registrar on 17 September 2024, pursuant to delegations provided for in Rule 21.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”). The applicant relied…

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Details
Case
[2024] FedCFamC2G 1289
Decision Date

CaseChat Overview and Summary

In the case of Ohlsen v Melbourne's Finest Removalist, the applicant, Ohlsen, sought a review of a decision by the Registrar, contesting the outcome of his claim for underpayment of wages. The applicant alleged that he was underpaid for the three days he worked for the respondent, Melbourne's Finest Removalist, and that he was engaged as a full-time employee rather than a casual employee. The dispute was heard de novo in the small claims division of the court.

The primary legal issue before the court was whether the applicant was engaged as a full-time employee or a casual employee by the respondent. The applicant bore the burden of proving that he was engaged as a full-time employee, which would entitle him to a higher rate of pay than he received. The court had to examine the evidence presented by both parties to determine the nature of the employment relationship and assess whether the applicant was underpaid.

The court found that the applicant had not provided sufficient evidence to establish that he was engaged as a full-time employee. The evidence showed that the respondent had offered the applicant a trial on 9 April 2024 and that the applicant was to start work on 10 April 2024, but did not confirm his availability. The respondent had not received a response from the applicant by 5:00pm on 9 April 2024, at which point the respondent disconnected from work and did not see the applicant’s texts later that night. When the applicant contacted the respondent on 10 April 2024, the respondent agreed to another shift for the applicant but noted that the applicant would start on a casual basis until he proved he was reliable and experienced. The court concluded that the applicant had not demonstrated that he was underpaid, as he was paid the appropriate rate for a casual employee for the days he worked.

The court dismissed the application for review, finding that the applicant had not satisfied the onus of proving that he was engaged as a full-time employee and had not demonstrated that he was underpaid. The applicant’s claim for underpayment was therefore rejected.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

At the time the applicant was employed in April 2024, there was an obligation on employers to provide a FWIS and/or CEIS.[9] But the amendments effected by the Amending FW Act to s 125B had not commenced at the time of the applicant’s employment. At the time of the applicant’s employment s 125B stated:(1)An employer must give each casual employee the Casual Employment Information Statement before, or as soon as practicable after, the employee starts employment as a casual employee with the employer.(2)Subsection (1) does not require the employer to give the employee the Statement more than once in any 12 months.[9] Sections 125 and 125B respectively of the Fair Work Act 2009 (Cth).THE EVIDENCE BEFORE THE COURT The applicant deposed to the following in his affidavits:(a)He sent a text message on 8 April 2024 in response to a job advertised by the respondent on SEEK.(b)In a phone call with an employee of the respondent later that day he discussed attending a trial on 9 April 2024, the rate of pay for a trial and the rate of pay for full-time employment.(c)Based on this phone call he agreed to undertake a trial.(d)During his trial on 9 April 2024 he discussed the role being offered with an employee of the respondent and he was asked to commence work on 10 April 2024.(e)The applicant advised he would need to discuss his availability with his current employer and would advise the respondent that evening.(f)The applicant sent a text on the evening of 9 April 2024 to confirm he could start on 10 April 2024. The applicant sent a further text and called on the morning of 10 April 2024.(g)The applicant did not receive any reply from the respondent.(h)At 10:00am on 10 April 2024 the respondent called the applicant and provided an alternative number and it was agreed the applicant would start on 11 April 2024.(i)He arrived at work 10 minutes late on 11 April 2024 and could not find any employees.(j)He was then informed he was supposed to be on a job with another crew, which he had no knowledge of. He was put in an Uber to the job.(k)The applicant completed a day of general duties.(l)Upon arriving back at “base” he was told he was too unreliable.(m)Later that day he received pay for 9 and 11 April 2024. The respondent’s evidence was that:(a)On 8 April 2024 the applicant sent a text to the respondent’s work mobile applying for a removalist labourer position.(b)By way of return text message the applicant was asked to attend a trial on 9 April 2024.(c)The applicant called back and Mr Wang and the applicant discussed the job offer. Mr Wang informed the applicant that the respondent was seeking a full-time or casual labourer.(d)Mr Wang sent the warehouse details by text to the applicant.(e)On 9 April 2024 the applicant arrived 20 minutes late to the warehouse.(f)The applicant asked whether the respondent had work for him on 10 April 2024. Mr Wang said yes but the applicant did not confirm whether he could attend. Mr Wang did not agree to employ the applicant on a full-time basis given he was late and told the applicant he could start off on a casual basis until he proved he was reliable and experienced.(g)Mr Wang did not receive confirmation that the applicant could attend work the next day by 5:00pm, at which time he disconnected from work. Mr Wang did not bring his work mobile phone home and did not see the applicant’s texts later that night.(h)When Mr Wang saw the texts and calls from the applicant after 9:00am on 10 April 2024 and he then called the applicant back. Mr Wang agreed to another shift for the applicant.(i)On 11 April 2024 the applicant arrived 30 minutes late. Mr Wang paid for an Uber to take the applicant to a job.(j)At the end of the day Mr Wang informed the applicant that there was no work for him the next day because of how unreliable he was.(k)Mr Wang informed the applicant he would be paid the trial rate of $30 per hour for the 9 April 2024 and the casual employee rate of $35 per hour for 11 April 2024.WAS THE APPLICANT A FULL-TIME OR CASUAL EMPLOYEE?

Decision

Reasons for decision

While the applicant will likely be disappointed by this outcome, it is important to stress that he carried the onus of proof and was required to satisfy me of an agreement being made for full-time employment. He has not done so.CONCLUSION The application for review should be dismissed because the applicant was employed as a casual employee and he has not demonstrated that he was underpaid.

Ratio Decidendi

Legal Principle Established

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