Penttila v Woolworths Ltd
[2022] FedCFamC2G 480
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Penttila v Woolworths Ltd [2022] FedCFamC2G 480
File number(s): BRG 67 of 2020 Judgment of: JUDGE EGAN Date of judgment: 29 June 2022 Catchwords: INDUSTRIAL LAW – Claims by applicant that he was underpaid by respondent – failure by applicant to adduce evidence probative of his claims – Amended Statement of Claim dismissed. Legislation: Evidence Act 1995 (Cth) s. 140. Cases cited: Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Aust) Pty Ltd (No. 4) [2011] FCA 578 Division: Division 2 General Federal Law Number of paragraphs: 35 Date of last submission/s: 14 June 2022 Date of hearing: 14 June 2022 Place: Brisbane The Applicant: Self-represented Counsel for the Respondent: Mr M Mckechnie Solicitor for the Respondent: Minter Ellison ORDERS
BRG 67 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RUSSELL PENTTILA
Applicant
AND: WOOLWORTH LTD ABN 88 000 014 675
Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
29 JUNE 2022
THE COURT ORDERS THAT:
1.The Application in a Case filed on 9 December 2021 be dismissed.
2.The Application in a Case filed on 9 April 2022 be dismissed.
3.The Originating Application filed on 3 February 2020 be 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 Egan
Introduction
By an Amended Statement of Claim filed on 11 May 2020, the applicant sought the following orders:
“[158] An order pursuant to section 545(1) of the FW Act that, within 28 days of the date of this order, the First Respondent, pay to the applicant the amount of $81,197.57 being the sum of the underpayment amounts set out at paragraph 153
[159] An order pursuant to section 547(2) of the FW Act that, within 28 days of the date of this order, the First Respondent, pay to the Applicant $28,446.04 in interest at the applicable pre-judgement interest rate on the underpayment amounts set out at paragraph 152
[160] An order pursuant to section 547(2) of the FW Act that, within 28 days of the date of this order, the First Respondent, pay to the applicant the amount of $63,720 being the sum of the pleading amounts set out at paragraph 156
[161] An order that within 14 days of receipt of the amounts referred to at paragraphs 158,159 and 160, the respondent will
a. pay
i. $173,363.61 to the applicant
b.In the event that the respondent cannot locate the applicant, pay the amount received to the Commonwealth with a further 7 days
[162]An order that the applicant have liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with
[163] Such further orders as the Court deems appropriate.”
The applicant had also filed two separate Applications in a Case as follows:
(a)One on 9 December 2021 seeking:
(i)Summary judgment against the respondent on the ground that the respondent had no reasonable prospects of successfully defending the proceeding; and
(ii)Summary judgment against the respondent on the ground that it had failed to dispute facts or documents referenced in two (2) Notices to Admit Facts filed and served by the applicant on the respondent.
(b)One on 9 April 2022 seeking:
(i)Default judgment based upon the application filed on 9 December 2021; and
(ii)Security for costs “incurred during the proceeding”.
Both applications were opposed by the respondent. Having regard to principles of case management, the Applications in a Case were adjourned for determination as part of the trial hearing process.
Nature of Applicant’s Claims
It was not in dispute at trial that the applicant was employed by the respondent:
(a)In a part-time capacity as a level 2 service station console operator between 17 January 2014 – 30 November 2015 (the first employment period); and
(b)In a full-time capacity as an assistant service station store manager between 30 November 2015 – 15 June 2017 (the second employment period). The applicant’s employment was terminated by letter dated 15 June 2017 sent by the respondent to the applicant. [1]
[1] Exhibit 1 – pp. 643 - 644.
It was also clear that:
(a)The first employment period was governed by the terms of an EBA the subject of a Fair Work Commission decision handed down by Commissioner Gooley on 14 March 2013. [2]
(b)The second employment period was governed by a written contract dated 28 December 2015 which relevantly had annexed to it the conditions of employment. [3]
[2] Exhibit 1 – p. 716
[3] Exhibit 1 – pp. 202 - 210
In the Amended Statement of Claim filed on 11 May 2020, the applicant first alleged that for the period of his employment as a part-time grade 2 console operator he was entitled to be paid the applicable rates under Clause 5 of the EBA. [4]
[4] Paragraph 18 of Amended Statement of Claim (ASOC).
The respondent did not dispute that for that work undertaken by the applicant, he was entitled to be paid at the applicable rates as determined under the EBA. Rather, the respondent disputed the basis on which the applicant claimed he was underpaid. The respondent submitted that because the applicant had voluntarily agreed to work all of the additional hours during the first employment period, he was not entitled to overtime for such work unless other overtime entitlements under the EBA had been triggered. The respondent further submitted that to the extent that the applicant had been underpaid for part of the work performed by him during the first employment period, the applicant had been paid the sum of $5,024.64 on 5 February 2020 which had overcompensated him in respect of such underpayment. The applicant sought no orders for the imposition by the Court of pecuniary penalties in his Amended Statement of Claim.
In the Amended Statement of Claim, the applicant secondly alleged that for the second employment period when employed as a grade 3 assistant site/store manager he was entitled to be paid the applicable rates of pay of a full-time employee under Clause 5 of the EBA.
The respondent submitted that the EBA did not cover the applicant in respect of the second employment period because he had entered into the written contract of employment. It was further submitted on behalf of the respondent that Clause 6 of the written contract made it clear that minimum entitlements under either legislation, an industrial instrument, the National Employment Standards or otherwise, did not form part of the applicant’s remuneration entitlements.
The First Employment Period
The applicant relied upon two affidavits at the trial which were respectively filed on 10 March 2020 and 4 June 2021. Counsel for the respondent formally withdrew all objections to evidence relating to the contents of such affidavits.
The affidavit filed on 10 March 2020 was titled “Affidavit of Service (General)”. Annexed to the affidavit was an index which recorded the following: [5]
[5] P. 166 of Exhibit 1.
Document Number Details Page Numbers Number of Pages A Time and attendance Records 1-18 18 B Public Holiday Spread 19-20 2 C Overtime Spread and Summary 21-32 12 D Payslip Summary Table 33-34 2 E Interest Table 35 1 F Letter of Offer and Employment Contract 36-45 10 G Contract Hours Agreement 46 1 I Employment Separation Certificate 47 1 J Final Payslip 48 1 K PAYG Payment Summary 49 1
The documents referred to in the annexed index were indeed annexed to the affidavit of the applicant, but the applicant failed to adduce any evidence going to his pleaded claims within the body of such affidavit.
The affidavit of the applicant filed on 4 June 2021 first had annexed to it a document entitled “Applicant’s Outline of Submission”. [6] That two page submission did no more than identify documents referred to in an index which was the next annexure. That index was as follows: [7]
[6] PP. 218 – 219 of Exhibit 1.
[7] P. 220 of Exhibit 1.
DOCUMENT NUMBER DETAILS PAGE NUMBERS NUMBER OF PAGES A Timesheets, Roster and Payslip Binder 1-183 183 B1 Respondents time and Attendance Records 30 – 06 - 13 184-198 15 B2 Respondents time and Attendance Records 06-10-14 199-220 22 B3 Respondents time and Attendance Records 23-06-16 221-236 16 C1 Payslip Summary 09 -02 – 14 237-250 14 C2 Payslip Summary 28-10-15 251-258 8 D1 PAYG Summary FY ending 2014 (6 Months) 259 1 D2 PAYG Summary FY ending 2015 (12 Months) 260 1 D3a PAYG Summary FY ending 2016 (3 Months) 261 1 D3b PAYG Summary FY ending 2016 (9 Months) 262 1 D4 PAYG Summary FY ending 2017 (12 Months) 263 1 E0 Summary – Comparison of Bank vs Payslip Activity 264-267 4 E1 Bank Statement of net payments made – Jan 14 268-287 20 E2 Bank Statement of net payments made – Apr 14 288-302 15 E3 Bank Statement of net payments made – Jul 14 303-319 17 E4 Bank Statement of net payments made – Oct 14 320-330 11 E5 Bank Statement of net payments made – Jan 15 331-344 14 E6 Bank Statement of net payments made – Apr 15 345-360 16 E7 Bank Statement of net payments made – Jul 15 361-370 10 E8 Bank Statement of net payments made – Oct 15 371-382 12 E9 Bank Statement of net payments made – Jan 16 383-389 7 E10 Bank Statement of net payments made – Apr 16 390-394 5 E11 Bank Statement of net payments made – Jul 16 395-399 5 E12 Bank Statement of net payments made – Oct 16 400-404 5 E13 Bank Statement of net payments made – Jan 17 405-408 4 E14 Bank Statement of net payments made – Jul 17 409-414 6 F FWC – Respondents submittal containing Contact and Letter of Offer 415-460 46 G1 Respondents Particular – Pay Punch Data Excel Document 461-488 28 G2 Particular – Extended of Par Punch Excel Document 489-490 2 H1 Correspondence – Correction of Personal Leave 16th September 2016 491-494 4 H2 Email – Submission of Contract and Letter of Offer 20th June 2017 495 1 I SDA Woolworths Petrol Enterprise Agreement 2012 496-560 65
Consistently with the itemised documents recorded on the index, there were then annexed the documents so itemised. [8] At the commencement of the hearing, Counsel for the respondent conceded that to the extent that the applicant had inserted summaries marked C1, C2, D1, D2, D3a, D3b, D4 and E0 on the index, such summaries were to be treated as part of the applicant’s evidence in chief as if the summaries had been set out in a sworn affidavit. Those summaries were submitted by the applicant to be accurate insofar as they recorded the quantum of bank deposits in the category of document marked E0. [9] The respondent acknowledged that the applicant had been underpaid in the first employment period. It was submitted on behalf of the respondent, however, that such underpayment was rectified by the payment to the applicant on or about 5 February 2020 of the sum of $5,024.64. [10]
[8] PP. 221 – 780 of Exhibit 1.
[9] PP. 484 – 487 of Exhibit 1.
[10] Andrew’s affidavit at [20] and at annexure BA-8 – P. 1011 of Exhibit 1.
Again, the applicant failed to adduce any evidence going to his pleaded claims within the body of the affidavit filed on 4 June 2021.
The respondent relied upon a payments schedule prepared on its behalf which covered the first employment period from 27 January 2014 until 29 November 2015. [11] Fundamental to an understanding of the Exhibit 2 schedule was an appreciation that, in almost all cases, the applicant’s hours of work were recorded by reference to what was referred to as “punch data”. The applicant explained in cross-examination, in respect of such term, that at the commencement and end of each shift he would record his start and end times by making a thumb print impression upon a timer which would record the time of his doing so. Those times would be collated and used for the purpose of preparing time sheets and wage slips.
[11] Exhibit 2.
As to the admission into evidence of business records such as the respondent’s time sheets and wage slips generated in respect of the applicant, the Court respectfully adopts what was said by Her Honour Justice Collier in Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Aust) Pty Ltd (No. 4) [2011] FCA 578 at [14] as follows:
“[14] Third, I note that the admissibility of documents as “business records” has been the subject of consideration in a number of recent cases in this Court, namely Australian Competition and Consumer Commission v Allphones Retail Pty Limited (No 4) [2011] FCA 338 and Fig Tree Developments Ltd (formerly Village Life Ltd) v Australian Property Custodian Holdings Ltd as Responsible Entity for the Prime Retirement and Aged Care Property Trust[2009] FCA 390, as well as cases in the Supreme Court of New South Wales, in particular National Australia Bank Ltd v Rusu[1999] NSWSC 539; (1999) 47 NSWLR 309 and in particular Australian Securities and Investment Commission v Rich (2005) 216 ALR 320; [2005] NSWSC 417. Principles emerging from these cases include:
•It is important not to set the bar too high for the authentication of documents, because if too much is demanded, the authentication requirement will fight against the policy underlying the business records provisions. That policy recognises that any significant organisation depends for its efficiency upon the keeping of proper records, to be used and relied upon in the everyday carrying on of the activities of the business and therefore likely to be accurate, and likely to be a far more reliable source of truth than memory (Rich at [116]).
•The party tendering the document must establish authenticity, which cannot be achieved solely by drawing inferences from the face of the document where there is no other evidence to indicate provenance (Rich at [117]).
•Authentication is about showing that the document is what it is claimed to be, not about assessing, at the point of the adducing of the evidence, whether the document proves what the tendering party claims it proves (Rich at [118]).
•There is a distinction between matters of authenticity going to the adducing of evidence and matters going to the credibility and weight of documentary evidence once it has been authenticated and judged admissible (Rich at [118]).”
Having heard the evidence of each of the respondent’s witnesses, and having examined Exhibit 2, the Court has inferred that the data noting the times worked by the applicant was authentic, as having been generated from a reconciliation of punch in time and punch out time records. [12] The Court heard evidence from one Bill Andrews who was, at the time of the swearing of his affidavit, a Culture and People Partner for the respondent. The Court accepts the evidence of Mr Andrews at [7] – [20] of his affidavit which relevantly was as follows:
[12] Section 183 of the Evidence Act 1995 (Cth).
“The First Employment Period
[7] At the commencement of the First Employment Period, Mr Penttila entered into a Letter of Offer dated 28 January 2014. A true and correct copy of that contract is attached to this affidavit marked BA-1.
[8]Mr Penttila's employment was covered by the Woolworths Petrol Enterprise Agreement 2012 (Agreement) and he was a Level 2 employee under the Agreement.
[9]Mr Penttila signed a document titled 'Woolworths Petrol Permanent or Temporary Contract' on 5 February 2014 which identified his initial rostered working hours. A true and correct copy of that roster is attached to this affidavit marked BA-2.
[10] Mr Penttila's rostered working hours were initially identified as:
(a) 6.00pm to 9.00pm on Wednesday;
(b) 6.00pm to 9.00pm on Thursday;
(c) 1.00pm to 9.00pm on Friday; and
(d) 1.00pm to 8.00pm on Saturday.
[11] While employed on a part time basis, there was an ability for an employee to be offered and accept additional hours under the Agreement.
The Second Employment Period
[12] Mr Penttila entered into a new contract of employment which commenced on 30 November 2015. A true and correct copy of that contract is attached to this affidavit marked BA-3.
[13] Under that contract Mr Penttila was employed on a salary and his ordinary hours of work were stated to be 40 per week averaged over a period of four weeks. Under that contract Mr Penttila was entitled to an annual salary of $47,000 plus superannuation.
[14] Mr Penttila's employment with Woolworths was terminated effective 15 June 2017. A true and correct copy of the termination letter is attached to this affidavit marked BA-4.
Mr Penttila's time and wages records
[15] Woolworths retain punch data records which identify when employees 'punch in' and 'punch out' at the start and ends of their shifts.
[16]A true and correct copy of the 'punch data' records relating to Mr Penttila for the period 4 February 2014 to 6 December 2015 are attached to this affidavit marked BA-5.
[17]I have been provided with Woolworths' pay records which identify what Mr Penttila was paid for his employment.
[18] A true and correct copy of Mr Penttila's pay records from 9 February 2014 to 25 October 2015 are attached to this affidavit marked BA-6.
[19]A true and correct copy of Mr Penttila's pay records from 4 November 2015 to 28 June 2017 are attached to this affidavit marked BA-7.
[20] Mr Penttila was paid an additional amount in respect of his employment with Woolworths on 5 February 2020. A true and correct copy of the pay slip for that payment is attached to this affidavit marked BA-8.”
The Court further heard evidence from one Harish Ankam who was, at the time of the swearing of his affidavit, a Senior Business Manager for the respondent. The Court accepts the evidence of Mr Ankam at [4] – [22] of his affidavit which relevantly was as follows:
“[4] However, in my role of Area Manager and other petrol-business related roles I was aware of the general operations of Woolworths' petrol business and provide the following information based on my knowledge of those operations.
The Woolworths Petrol Business
[5] Woolworths operated a fuel and convenience business throughout Australia until it was sold to Euro Garages in 2019.
Hierarchy of roles
[6]The hierarchy of roles within the business was as follows (from lowest to highest):
(a) Console operators;
(b) Trainee Site Manager (sometimes referred to as a Trainee Store Manager – it was actually quite uncommon to have someone engaged in this role unless a particular store was very busy);
(c)Assistant Site Manager (sometimes referred to as an Assistant Store Manager);
(d) Store Manager;
(e) Area Manager;
(f) Regional Manager;
(g) National Operations Manager.
[7] Console Operators were at all material times covered by the Woolworths Petrol Enterprise Agreement 2012 (Agreement).
[8] Persons who worked in the role of Assistant Site/Store Managers and Site/Store Managers could be employed by Woolworths on a salary. When employed on a salary, they were no longer covered by the Agreement.
[9]The number of employees within each store would vary from time to time. However, generally, there would be:
(a) a number of Console Operators;
(b) an Assistant Store Manager; and
(c) a Store Manager.
[10] Part-time employees were provided with an indicative roster of hours at the commencement of their employment.
[11]However, depending on the particular store they worked at, it was not uncommon for those hours to change in accordance with the rostering requirements of the store. This was certainly the case for the petrol stores in the Northern Territory (including the Alice Springs store) where there was a relatively high turnover of staff which allowed for part-time employees to work more (or very occasionally less) shifts or hours than had been originally agreed to on a voluntary basis.
Rostering and additional voluntary hours
[12]Rosters and staffing were generally managed by the Store Manager at each store.
[13]In my experience, stores operated on a roster system which, depending on turnover of staff, would change from time to time (including week to week). This was particularly the case where there were a number of Console Operators engaged on a part-time basis at the store.
[14]Generally, a roster would be prepared two weeks in advance and provided to all employees (whether covered by the Agreement or staff employees employed on a salary). The employees would then confirm whether they would be able to work the hours on the roster.
[15]On some occasions (i.e. due to unplanned sick leave or other changes in staffing), employees would be requested to work additional hours or a different roster to that which had originally been prepared for the particular week. Where these hours are worked (i.e. the employee agreed to work those additional hours voluntarily), the part time employee would be paid at their ordinary rate of pay plus any shift loading, unless they otherwise triggered an overtime payment under the Agreement if it applied to their employment.
[16]In my experience, part-time employees generally agreed to work additional shifts which were offered.
[17]If an employee was not able to work the additional shifts which were available, they would never be forced to. It would be for the Store Manager to identify a solution. In metropolitan areas, it was usually much easier to find an employee who was happy to work an additional shift at a different store to their normal 'home' store.
[18]However, in places such as Alice Springs, it was much more difficult to bring in additional resources if there was a staffing issue. This meant:
(a)it was more common for part-time employees to be offered shifts which differed from their 'standard' roster;
(b)those employees agreed to work the additional shifts which were on offer on the understanding that the hours were to be paid at their ordinary rates (subject to the overtime triggers in the Agreement such as 38 hours in a week); and
(c)if no employee was available for the shift, the store would be shut for that period.
[19] At some stores 'adjustment sheets' were completed which specifically identified the voluntary additional hours worked by part-time employees. However, this paperwork was not always completed. That did not mean those hours were not worked voluntarily or by agreement. In my view, any additional shifts that were worked were done on a voluntary basis with the agreement of the part-time employee.
[20]Whilst I was not directly involved in the hours worked by Mr Penttila in this case, there is, based on my knowledge and experience, no reason to suspect that a process similar to that which is outlined above was not followed in this case.
'Punch data'
[21]Generally, employees 'punch in' and 'punch out' at the start and ends of their shifts. The 'Kronos' system used a fingerprint which would be entered by the employee to identify their start and finish times. The employee would usually 'punch in' within 15 minutes either side of their start time and then 'punch out' within 15 minutes of finishing their shift.
[22]That data would then be used to identify the hours worked by the employee over the course of a week. The Store Manager would generally review the punch data to confirm it accurately reflected the hours worked by each employee. For example, if a 'punch in' or a 'punch out' was early or late and did not align with the relevant shift time, the actual hours which had been required to be worked would be reconciled by the Store Manager and then paid.
During the course of the applicant’s cross-examination, he admitted that during the first employment period he voluntarily worked different hours and different shifts when asked by the store manager to do so. Having performed that work voluntarily, and subject to other overtime triggers coming into play, the applicant was to be paid “at the appropriate part-time ordinary rates of pay, inclusive of any additional loadings and provisions provided in the clauses in paragraph 7.3.5(c) applicable to such hours”.
As to the applicability of the EBA to the applicant, the Court was assisted by, and accepts the accuracy of, the respondent’s written submissions filed on 24 January 2022 at [3] – [4.28] thereof. The Court is a busy trial Court with hundreds of listings. In circumstances where the Court is wholly in agreement with written submissions provided by a party to the proceeding, and the propositions contained therein, the Court makes no apology for adopting such submissions, in their entirety, as part of its reasons. It is in the interests of efficient court programming that the Court has done so. The relevant submissions provided as follows:
3. Matters which are or should be uncontroversial
3.1 Many aspects of Mr Penttila's employment relevant to his claim are (or at least should be) uncontroversial:
(a) Mr Penttila was employed by Woolworths at an Alice Springs retail fuel location which traded as 'Alice Springs – Woolworths Petrol'.1
(b) The operating hours of the store were:2
(i) 7.00am to 9.00pm Monday to Friday; and
(ii) 7.00am to 8.00pm Saturday and Sunday.
(c)Mr Penttila was employed by Woolworths between 27 January 2014 and 15 June 2017.
(d) At the commencement of the First Employment Period, Mr Penttila entered into a Letter of Offer dated 28 January 2014.4
(e) Mr Penttila was employed as a Level 2 employee under the Agreement while employed as a console operator on a part-time basis.
(f)Mr Penttila signed a document titled 'Woolworths Petrol Permanent or Temporary Contract' on 5 February 2014 which identified his initial rostered working hours.6
(g) Mr Penttila's rostered working hours were initially identified as:
(i) 6.00pm to 9.00pm on Wednesday;
(ii) 6.00pm to 9.00pm on Thursday;
(iii) 1.00pm to 9.00pm on Friday; and
(iv) 1.00pm to 8.00pm on Saturday.
(h) While employed on a part time basis, there was an ability for an employee to be offered and accept additional hours under the Agreement.
(i) As set out in the rosters and time records, Mr Penttila never worked his initial rostered 'contract' hours and instead worked different hours, largely in accordance with rosters issued to him.
(j)Mr Penttila entered into a new contract of employment which commenced on 30 November 2015.9 Under that contract Mr Penttila was employed on a full-time basis as an Assistant Store Manager.10 He was employed on a salary and his ordinary hours of work were stated to be 40 per week averaged over a period of four weeks. Under that contract Mr Penttila was entitled to an annual salary of $47,000 plus superannuation.11
(k) Mr Penttila's employment with Woolworths was terminated effective 15 June 2017.
4. Mr Penttila's claim in respect of the First Employment Period
4.1There appears to be two parts to Mr Penttila's claim in respect of the First Employment Period:
(a)He was not paid correctly in respect of overtime during the First Employment Period; and
(b)He was not paid correctly in respect of public holidays during the First Employment Period.
The relevant terms of the Enterprise Agreement
4.2The Enterprise Agreement was approved by the Fair Work Commission on 14 March 2013. It had a nominal expiry date of 30 June 2015 but continued to operate after that date in accordance with s.54(2) of the FW Act. There is no other relevant enterprise agreement which either applied or could have applied to Mr Penttila during his employment.
4.3The relevant terms of the Enterprise Agreement for Mr Penttila's claim relating to the First Employment Period are set out below.
4.4 Clause 7.3 of the Enterprise Agreement states:
7.3 Part Time
7.3.1A part time employee shall be employed for an agreed lesser number of hours than 38 per week.
7.3.2The maximum ordinary hours worked by a part time employee shall be 32 per week, or 64 averaged over a 2-week cycle, or 128 averaged over a 4-week cycle as a part of a fixed roster. This clause does not apply to employees who volunteer to work additional hours under subclause 7.3.5 and who elect to increase their core hours under subclause 7.3.8, in excess of the above hours provided by this subclause.
7.3.3 The maximum ordinary hours worked in any week shall be 38.
7.3.4The minimum ordinary hours worked shall be 10 per week or 20 averaged over a 2-week cycle, or 40 averaged over a 4-week cycle as a part of a fixed roster.
Part Time – Additional Hours
7.3.5 Notwithstanding the above provisions in 7.3 a part-time employee may be offered Additional Hours, and accept such hours on in addition to a part-time employee's core rostered hours.
The working of part-time Additional Hours is subject to the following provisions:
(a) Additional Hours are offered on a voluntary basis in addition to a part-time employee's core rostered hours, up to a maximum of 38 hours in any week.
(b) Additional Hours shall be paid at the appropriate part-time ordinary hours rate of pay, inclusive of any additional loadings and provisions provided in the clauses in paragraph 7.3.5(c) applicable to such hours.
(c) The working of Additional Hours operates subject to Clauses; 5 Grading and Wages; 8 Spread of Hours and Penalties; 9 Rosters; 10 Overtime; 11 Meal Breaks and Rest Periods; 12 Allowances; 14 Personal Leave; 15 Annual Leave; 22 Public Holidays; 30 Superannuation; and 49 Savings and all other relevant clauses.
(d) Additional Hours shall not be worked so as to exceed the daily maximum hours or days elsewhere provided in this Agreement (as contained in clauses 7.3.1, 7.3.2, 7.3.3 and 9.1.3) without the payment of overtime.
(e) All additional hours worked will count in the calculation of all leave entitlements.
For part-time employees who by mutual agreement accept additional hours at the ordinary rate of pay outside their normally rostered shifts must sign an "Adjustment Sheet"
7.3.6The Adjustment Sheet shall indicate any additional hours the employee has worked outside his or her normally rostered shifts;
7.3.7 The entry must be signed and dated by the employee and the manager;
7.3.8A part-time employee, who has worked voluntary Additional Hours in any anniversary year, can on their anniversary elect to increase their core hours in the subsequent anniversary year. This is subject to the following provisions:
A Part-Time employee can request a review of the additional hours worked on average in the anniversary year and may elect to increase their core hours for the subsequent anniversary year. Hours worked at Petrol Sites other than the employees "home site" shall not be included for the purposes of this calculation.
7.3.9 The increase in core hours for the subsequent anniversary year is calculated on the average number of ordinary hours worked per week by the employee over the previous year.
7.3.10 The increase in core hours is averaged over the subsequent anniversary year, on a weekly basis.
7.3.11The core hours shall continue to increase on a yearly basis, unless the part-time employee works only their core hours in an anniversary year.
7.3.12Where the employee achieves core hours of 36 hours per week, the employee may elect to go to full time employment subject to business operating requirements. This sub-clause employee worked an average of 36 hours, or more, per week in the anniversary year.
4.5The undertaking given by Woolworths in the approval decision is also relevant to clause 7.3:
1. The Company will interpret and apply clause 7.3.1 of the Agreement on the understanding that this clause requires that there be a written agreement with each part time employee specifying:
(a) the number of hours to be worked;
(b) the days on which the part time employee is to work, and the number of hours to be worked on each such day; and
(c) the starting and finishing times for each day of work.
In addition to the circumstances in which overtime is payable under clause 10.1, the Company will pay a part time employee at overtime rates in the event it requires or directs the employee to work outside their contracted hours under clause 7.3.1 (although this will not apply to any agreed additional hours worked on a voluntary basis in accordance with clauses 7.3.5 to 7.3.12)
4.6The next relevant clause is clause 8.1 of the Enterprise Agreement which outlines the spread of hours and penalties:
8.1 Weekly Employees
Span of Hours – Weekly Employees Loading Monday to Friday 12 midnight to 5am 30% Midnight Friday to 6am Saturday 30% 9pm Saturday to Midnight Saturday 25% Midnight Saturday to 6am Sunday 100% 6am Sunday to 9pm Sunday 50% 9pm Sunday to Midnight Sunday (excluding VIC/TAS employees) 75% 9pm Sunday to Midnight Sunday (VIC/TAS employees) 100%
4.7 Clause 9 then relevantly sets out the following in respect of rostering:
9. ROSTERS
9.1 Full Time and Part Time Employees
9.1.1 Notification and Change of Rosters
9.1.1.1Weekly employees (Full-Time and Part-Time) shall be notified in writing of their weekly and daily working hours 14 days in advance.
9.1.1.2Rosters may be changed by agreement or by the giving of 14 days notice or such lesser notice as may be agreed. Rosters shall not be continuously changed at the end of each cycle or to avoid obligations under this Agreement. Hours of work shall be continuous except for breaks.
9.1.1.3When establishing or changing rosters, the Company will have regard for family responsibilities, study commitments and for whether or not the employee has safe transport home. "Family" in this context means "immediate family" as defined in Clause 14.4.2 of this Agreement -, or a member of the employee's household.
9.1.2 [Full time – not relevant]
9.1.3 Working Cycles for Part time Employees
9.1.3.1The minimum engagement for a part time employee shall be 3 consecutive hours per day.
9.1.3.2The maximum number of hours worked on any day without the payment of overtime shall not exceed 10.
9.1.3.3Rostered hours shall be worked on not more than 5 consecutive days in each week, there being 2 consecutive days off per week or 3 consecutive days off per fortnight, except where mutually agreed a 6 day/4 day roster can apply.
4.8 Clause 10 then relevantly deals with overtime as follows:
10.1 An employee shall be paid overtime for all work in excess of:
(a)38 hours in any week for a full time employee, in accordance with the roster provisions in clause 7.2.1 and 9.1.2.
(b)20 days per 4 week cycle; or 19 days for full time employees working a 19 day 4 week cycle, in accordance with the roster provisions in clause 9. 1.2.
(c) 10 hours on any one shift.
(d)128 hours per 4 week cycle for a part-time employee in accordance with roster provisions in clause 7.3.
(e)38 hours in any week for part-time employees working additional hours in accordance with clause 7.3.5
(f) 38 hours in any week for a casual employee.
(g) 6 consecutive days for a casual employee.
(h)5 consecutive days for a full timer (or 6 days where the employee works a 6 day/ 4 day rotating roster in accordance with clause 9.1.2.1).
(i)5 consecutive days for part timer (or in excess of 6 days where the employee works a 6 day/ 4 day rotating roster or in accordance with clause 9.1.3.2).
(j)All employees shall have a break of not less than 10 hours between the end of work commencing on one day and the commencement of work on the next. In the event that an employee resumes work without having a 10-hour break from work, the employee shall be paid at the appropriate overtime rate until released from duty for such 10-hour break.
(k) Each day's overtime shall stand alone
10.2 Overtime rates of pay are as follows:
(i)The rate of 150%, for the first 2 hours and 200% thereafter. When double time becomes payable it will continue until the completion of overtime.
(ii)A full time employee who works a 6th shift as overtime, or who works on their R.D.O., being the 20th day of a 19 day month, shall be paid 200% for all hours so worked on such day.
10.3 Sunday – All Employees
The rate payable for all overtime worked on a Sunday, by any employee, full-time, part-time % of the employee's ordinary rate of pay.
The hours worked by Mr Penttila
4.9Mr Penttila's hours of work were recorded via 'punch data'. In most cases the punch data aligns with the 'rosters' and 'time sheets' included in the Penttila Trial Affidavit.
4.10Although there may be some occasions where Mr Penttila did not 'punch on' or 'punch out' in accordance with his actual hours of work, Woolworths proceeds on the basis that for the purpose of identifying the hours actually worked by Mr Penttila that the 'punch data' which is attached to the Andrews Affidavit as BA-5 records Mr Penttila's starting and finishing times on each day.
4.11 In turn, Woolworths' calculations for the First Employment Period include additional time on days where Mr Penttila may have punched on early or punched out late and assumes an extra payment would be payable for that short period of time. Without conceding that there was necessarily an underpayment on those days, Woolworths has proceeded on the basis of a 'worst case' scenario for it. That explains a number of the minor differences between the figures in the time records and what Mr Penttila was paid for in a given week.
4.12 Woolworths' calculations for the First Employment Period also includes payment for a minimum of 3 hours on a day where Mr Penttila's time records indicate he did not work for 3 hours. This is in accordance with clause 9.1.3.1 of the Enterprise Agreement.
The penalty rates and overtime 'triggers'
4.13 The main thrust of Mr Penttila's claim in relation to the First Employment Period appears to be that he should have been paid at overtime rates for every hour he worked different to his 'contract' hours.
4.14 Woolworths denies that this is the correct interpretation of the Enterprise Agreement and application of the relevant facts.
4.15 As noted above, it is uncontroversial that Mr Penttila signed a document which outlined his proposed 'core roster' to commence on 5 February 2014.17
4.16 As outlined above, Mr Penttila's rostered working hours were initially identified as:
(a) 6.00pm to 9.00pm on Wednesday;
(b) 6.00pm to 9.00pm on Thursday;
(c) 1.00pm to 9.00pm on Friday; and
(d) 1.00pm to 8.00pm on Saturday.
4.17 However, at no time did Mr Penttila actually work those hours in a given week. Instead, Mr Penttila worked a variety of hours which generally changed from week to week and were generally in accordance with the rosters which were issued for each working week, noting these could themselves change with agreement.
4.18There is no evidence that Mr Penttila or Woolworths prepared an 'Adjustment Sheet' in respect of Mr Penttila's employment relevant to the First Employment Period. However, that does not mean that Mr Penttila was entitled to overtime payments for any (or every) hour which differed to those in paragraph 4.16 or as otherwise rostered or agreed. This is because it is the voluntary acceptance by an employee to work the offered hours which is the key to determining whether the hours are 'Additional Hours' for the purpose of overtime, not a subsequent administrative task after the hours have been worked.
4.19The Respondent submits that the Court should not interpret clause 7.3 of the Enterprise Agreement in such a way.
4.20The Court should also find that Mr Penttila was quite prepared to work the hours which were offered to him. This should be inferred from the fact that no contrary contention has ever been raised by Mr Penttila either contemporaneously or in his affidavit material. Such an inference is also consistent with the evidence of Mr Ankam as to the normal operating methods for part-time employees accepting additional hours. It is also consistent with the provision of rosters (which themselves could change with agreement) pursuant to clause 9.1.1 and 9.1.2 of the Enterprise Agreement. Any suggestion that the hours worked were not voluntarily accepted by Mr Penttila can only be a recent invention designed solely to support his claim for more money.
4.21In turn, a significant part of Mr Penttila's claim that he was underpaid in respect of the First Employment Period cannot succeed.
4.22However, there are a number of other overtime triggers or penalty rates in the Enterprise Agreement which are relevant to determining whether Mr Penttila was paid correctly. These are summarised below:
(a)Where a part-time employee worked more than 10 hours in any one shift – per clause 10.1(c) of the Enterprise Agreement;
(b)Where a part-time employee worked more than 128 hours in a 4 week cycle (although this is only payable for those working a 'fixed roster' and does not necessarily apply to those who work voluntary additional hours) – per clauses 7.3.2 and 10.1(d) of the Enterprise Agreement. It should be noted that a particular week in a cycle can only be counted once;
(c)Where a part-time employee worked more than 38 hours in a week (assumed to be commencing on a Monday and ending on a Sunday) – per clause 10.1(e) of the Enterprise Agreement;
(d)Where a part-time employee works more than 5 consecutive days – per clause 10.1(i) of the Enterprise Agreement;
(e)Where a part-time employee works ordinary hours on a Sunday – per clause 8.1 of the Enterprise Agreement;
(f)Where an employee works on a public holiday – per clause 22.5 of the Enterprise Agreement.
4.23Mr Penttila appears to suggest that clause 9.1.3.3 of the Enterprise Agreement also provides an additional entitlement to overtime where there is not 2 consecutive days off per week. However, no overtime payment is outlined in clause 10 of the Enterprise Agreement in those circumstances. Instead, the trigger for overtime is that identified in clause 10.1(i) of the Enterprise Agreement where the part-time employee works more than 5 consecutive days.
What Mr Penttila was entitled to in the First Employment Period
4.24Attached as Annexure 1 to these submissions are the calculations of Woolworths relevant to the First Employment Period which identify:
(a)Mr Penttila's hours worked in every week of the First Employment Period (which figures are taken from the punch data as explained above);
(b)What hours Mr Penttila would be entitled to overtime or penalty rates for and the applicable overtime/penalty rate (which is calculated in accordance with what Woolworths submits is the correct interpretation of the overtime provisions in the Enterprise Agreement as explained above);
(c)The weekly pay Mr Penttila was entitled to under the Enterprise Agreement (assuming that hours worked outside the 'contract' hours were additional hours and did not of themselves attract overtime rates); and
(d) The pay actually received by Mr Penttila in each week.
4.25 Those calculations are summarised below:
WEEK ENDING ENTITLEMENT UNDER THE ENTERPRISE AGREEMENT ACTUAL PAY DIFFERENCE 02.02.14 $240.96 $240.96 $0.00 09.02.14 $696.17 $692.77 -$3.40 16.02.14 $486.74 $461.85 -$24.89 23.02.14 $489.15 $471.88 -$17.27 02.03.14 $1,321.26 $1,084.33 -$236.93 09.03.14 $562.24 $552.21 -$10.03 16.03.14 $571.48 $569.68 -$1.80 23.03.14 $401.60 $401.60 $0.00 30.03.14 $643.16 $642.57 -$0.59 06.04.14 $847.98 $901.20 $53.22 13.04.14 $870.17 $865.96 -$4.21 20.04.14 $1,054.10 $1,034.14 -$19.96 WEEK ENDING ENTITLEMENT UNDER THE ENTERPRISE AGREEMENT ACTUAL PAY DIFFERENCE 27.04.14 $1,298.37 $1,030.11 -$268.26 04.05.14 $753.00 $943.78 $190.78 11.05.14 $793.76 $823.29 $29.53 18.05.14 $769.06 $702.81 -$66.25 25.05.14 $859.62 $915.06 $55.44 01.06.14 $885.13 $823.29 -$61.84 08.06.14 $503.20 $572.28 $69.08 15.06.14 $281.12 $281.12 $0.00 22.06.14 $441.76 $441.76 $0.00 29.06.14 $562.64 $562.25 -$0.39 06.07.14 $733.68 $652.61 -$81.07 13.07.14 $570.64 $570.68 $0.04 20.07.14 $509.50 $509.54 $0.04 27.07.14 $591.02 $591.06 $0.04 03.08.14 $407.60 $407.63 $0.03 10.08.14 $458.55 $361.16 -$97.39 17.08.14 $326.08 $326.10 $0.02 24.08.14 $733.68 $733.73 $0.05 31.08.14 $1,406.22 $1,008.39 -$397.83 07.09.14 $754.06 $754.12 $0.06 14.09.14 $855.96 $743.93 -$112.03 21.09.14 $611.40 $611.44 $0.04 28.09.14 $754.06 $754.12 $0.06 WEEK ENDING ENTITLEMENT UNDER THE ENTERPRISE AGREEMENT ACTUAL PAY DIFFERENCE 05.10.14 $794.82 $794.88 $0.06 12.10.14 $805.01 $794.88 -$10.13 19.10.14 $794.82 $794.88 $0.06 26.10.14 $713.30 $713.36 $0.06 02.11.14 $601.21 $601.25 $0.04 09.11.14 $692.92 $692.27 -$0.65 16.11.14 $733.68 $733.74 $0.06 23.11.14 $672.54 $672.59 $0.05 30.11.14 $540.07 $743.93 $203.86 07.12.14 $1,141.28 $743.93 -$397.35 14.12.14 $611.40 $611.45 $0.05 21.12.14 $454.98 $455.02 $0.04 28.12.14 $445.61 $455.02 $9.41 04.01.15 $742.98 $570.49 -$172.49 11.01.15 $496.56 $496.50 -$0.06 18.01.15 $662.08 $662.00 -$0.08 25.01.15 $744.84 $744.75 -$0.09 01.02.15 $641.39 $703.37 $61.98 08.02.15 $548.29 $548.22 -$0.07 15.02.15 $1,572.44 $1,241.24 -$331.20 22.02.15 $1,024.16 $899.90 -$124.26 01.03.15 $1,220.71 $899.90 -$320.81 08.03.15 $1,044.85 $899.90 -$144.95 WEEK ENDING ENTITLEMENT UNDER THE ENTERPRISE AGREEMENT ACTUAL PAY DIFFERENCE 15.03.15 $548.29 $703.38 $155.09 22.03.15 $1,210.37 $786.12 -$424.25 29.03.15 $465.53 $465.47 -$0.06 05.04.15 $548.29 $584.21 $35.92 12.04.15 $853.46 $853.36 -$0.10 19.04.15 $527.60 $527.53 -$0.07 26.04.15 $765.54 $1,075.74 $310.20 03.05.15 $690.53 $690.45 -$0.08 10.05.15 $827.60 $1,179.19 $351.59 17.05.15 $786.22 $786.12 -$0.10 24.05.15 $393.11 $793.88 $400.77 31.05.15 $889.67 $858.52 -$31.15 07.06.15 $501.73 $501.67 -$0.06 14.06.15 $955.62 $955.50 -$0.12 21.06.15 $677.60 $667.18 -$10.42 28.06.15 $393.11 $418.92 $25.81 05.07.15 $428.08 $424.30 -$3.78 12.07.15 $664.98 $662.00 -$2.98 19.07.15 $623.80 $615.45 -$8.35 26.07.15 $476.49 $475.81 -$0.68 02.08.15 $615.53 $615.45 -$0.08 09.08.15 $788.10 $786.23 -$1.87 16.08.15 $816.43 $772.67 -$43.76 WEEK ENDING ENTITLEMENT UNDER THE ENTERPRISE AGREEMENT ACTUAL PAY DIFFERENCE 23.08.15 $765.84 $765.33 -$0.51 30.08.15 $701.39 $694.16 -$7.23 06.09.15 $677.60 $663.13 -$14.47 13.09.15 $869.19 $848.29 -$20.90 20.09.15 $1,458.23 $1,286.14 -$172.09 27.09.15 $962.09 $961.97 -$0.12 04.10.15 $950.71 $786.12 -$164.59 11.10.15 $1,467.75 $993.00 -$474.75 18.10.15 $555.02 $553.49 -$1.53 25.10.15 $509.49 $509.42 -$0.07 01.11.15 $556.04 $509.43 -$46.61 08.11.15 $550.87 $550.80 -$0.07 15.11.15 $584.85 $581.84 -$3.01 22.11.15 $0.00 $0.00 $0.00 29.11.15 $483.63 $305.14 -$178.49 Total potential underpayment $68,285.45 $65,720.29 -$2,565.16
4.26Accordingly, Woolworths acknowledges that there was an underpayment to Mr Penttila in respect of the First Employment Period. However, that underpayment was rectified by the subsequent payment to Mr Penttila on or about 5 February 2020 of $5,024.64 (less tax), prior to the commencement of these proceedings.
4.27In turn, there is no outstanding underpayment in respect of the First Employment Period.
4.28It follows that, with respect to the First Employment Period, the Court should find that Mr Penttila was entitled to be paid $68,285.45 (less tax) and was in fact paid $70,744.93 (less tax). Accordingly there has been no underpayment.”
Pursuant to the provisions of s. 140 of the Evidence Act 1995 (Cth) a Court must find the case of a party proved if it is satisfied that the relevant evidentiary standard has been satisfied – namely proof on the balance of probabilities. Section 140 of the Evidence Act relevantly provided as follows:
“140 Civil proceedings: standard of proof
(1)In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in declining whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.”
In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 – 362, Dixon J said:
“When the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality … it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fat or facts to be proved. The seriousness of an allegation mde, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal”.
The applicant failed to put his case to either of the respondent’s witnesses during their cross-examination. That was so in circumstances where the applicant failed to positively adduce evidence in support of any of the allegations made in the Amended Statement of Claim which went to the issue of his alleged underpayment during the first employment period. In such circumstances, the applicant’s claim for underpayment in the first employment period has not been proved on the balance of probabilities, and is accordingly dismissed.
The Second Employment Period
On 28 December 2015, the respondent, by one Ashwinder Sahota, set out in writing the terms and conditions of the applicant’s full-time employment as an assistant store manager in respect of the second employment period. [13] Clause 6 of the conditions of the contract of employment relevantly provided as follows: [14]
[13] Written Contract and Terms and Conditions of Employment at PP. 202 – 210 of Exhibit 1.
[14] PP. 205 - 206 of Exhibit 1.
“6. Minimum Entitlements
If at any time you are entitled to any payment or other benefit as a consequence of the Employment (whether under legislation, an industrial instrument, the National Employment Standards or otherwise) including, without limitation, minimum hourly rates, penalties, overtime, allowances such as meal allowances and loadings such as annual leave loading (Minimum Entitlements), you agree that:
(a) as far as possible, the Remuneration and other benefits under this Agreement will be in satisfaction of the Minimum Entitlements over a 26 week period calculated at the applicable minimum rate: and
(b) the Minimum Entitlements do not form part of this Agreement.”
The Court finds as a matter of construction that the provisions of the EBA did not form part of the applicant’s contract of employment, and that Clause 6 of such contract specifically excluded the application of the EBA to such contract. Such construction was supported by that part of the written contract which made it clear that the applicant’s ordinary hours of work would be 40 hours per week averaged over a 4 week period, and that working late nights, Saturdays, Sundays and public holidays, as well as additional hours, was part of the role and that such considerations had been taken into account when setting the remuneration payable. The contract in part relevantly provided as follows: [15]
[15] P. 203 of Exhibit 1.
“Hours of Work
You will be employed on a full-time basis. Your ordinary hours of work will be 40.00 hours per weekend averaged over a period of 4 weeks.
Due to the nature of the retail industry and the Company’s operational requirements, you may be required to work days, late nights, Saturdays, Sundays and/or public holidays. You may be required to work additional hours as are either reasonably necessary to perform your duties or required by the Company. Working late nights, Saturdays, Sundays and/or public holidays, as well as additional hours, is part of your role and that has been taken into consideration in setting your Remuneration.”
The applicant acknowledged the existence of the written contract of employment at [95] and [123] of the Amended Statement of Claim. To the extent that the applicant claimed that the EBA overrode the written contract and did apply to the applicant’s second period of employment, such claim was misconceived.
Further, contrary to claims made by the applicant in the document E0 that he had been underpaid during the second employment period, the Court finds that the applicant was duly paid in accordance with his contract.
To the extent Mr Penttila appears to assert that he was not paid in accordance with his payslips, his document 'E0' does not accurately identify the payments actually paid to him. With respect to the alleged 'underpayments' in the 'E0' document the Court finds as follows:
(a) Mr Penttila received a payment of $1,691.90 (after tax) on 3 May 2016 which he alleged had not been received; [16]
(b)Mr Penttila received a payment of $1,520.88 (after tax) on 23 August 2016 which he alleged had not been received; [17]
(c)Mr Penttila received payment of $1,520.88 (after tax) on 20 September 2016 which he alleged had not been received; [18]
(d)Mr Penttila received payment of $1,519.27 (after tax) on 4 October 2016 which he alleged was only $1507.19;[19]
(e)Mr Penttila received payment of $1,519.27 (after tax) on 28 December 2016 which he alleged had not been received; [20]
(f)Mr Penttila received payment of $67.79 (after tax) on 24 January 2017 which he alleged had not been received; [21]
(g)Although the pay report for his final pay in June 2017 referred to a higher payment amount, the payslip for what he was actually entitled to [22] showed that he was entitled to $4,166.90 (after tax) which was paid to him on 27 June 2017. [23] The Court finds that the pay report reference to ‘Life Benefit 32%’ of an additional $3,651.53 [24] was not in fact payable given the pay included that same amount as payment in lieu of notice.
[16] P. 610 of Exhibit 1
[17] P. 616 of Exhibit 1
[18] P. 617 of Exhibit 1
[19] P. 618 of Exhibit 1
[20] P. 621 of Exhibit 1
[21] P. 623 of Exhibit 1
[22] P. 474 of Exhibit 1
[23] P. 632 and 1009 of Exhibit 1
[24] P. 478 of Exhibit 1.
The applicant’s claim for underpayment in respect of the second employment period is accordingly dismissed. The applicant has failed to prove his case on the balance of probabilities.
As to the adverse action claim made at [41] of the Amended Statement of Claim, the Court noted that such claim was struck out by order of another Judge of the Court on 3 March 2021.
The applicant has failed to discharge his onus of proof of establishing on the balance of probabilities that he was in any respect underpaid by the respondent.
The Amended Statement of Claim is dismissed.
Having found that the applicant’s claims are without merit, the Court accordingly dismisses each of the Applications in a Case respectively filed on 9 December 2021 and 9 April 2022.
And it is so ordered.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate: JM
Dated: 28 June 2022
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