Perera v Playkidz Enterprises Pty Ltd

[2016] FCCA 2478

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERERA v PLAYKIDZ ENTERPRISES PTY LTD [2016] FCCA 2478

Catchwords:
INDUSTRIAL LAW – Ruling on small claims application.

Legislation:

Fair Work Act 2009, ss.117, 12, 61(2), 541, 542

Cases cited:
Association of Professional Engineers Scientists And Managers Australia v Wollongong Coal Limited [2014] FCA 878

Applicant: SHERRYL CHRISTINE PERERA

Respondent: PLAYKIDZ ENTERPRISES PTY LIMITED TRADING AS CAMBERWELL JUNCTION EARLY LEARNING CENTRE

File Number: MLG 1429 of 2016

Judgment of: Judge Burchardt

Hearing date: 23 August 2016

Date of Last Submission: 23 August 2016

Delivered at: Melbourne

Delivered on: 23 August 2016

REPRESENTATION

Counsel for the Applicant: Ms Perera in person

Counsel for the Respondent: Ms Newhouse

ORDERS

1. The Respondent pay to the Applicant the sum of $3,420, with a stay of 30 days on the same.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

No. MLG 1429 of 2016

SHERRYL CHRISTINE PERERA

Applicant

And

PLAYKIDZ ENTERPRISES PTY LTD TRADING AS CAMBERWELL JUNCTION EARLY LEARNING CENTRE

Respondent

REASONS FOR JUDGMENT

1. In this matter the applicant has brought a claim for three weeks worth of pay. It is agreed that she was not paid the three weeks’ worth of pay which is the balance, as the applicant would put it, of her notice period. There is no dispute that pursuant to the contract under which she was employed the period of notice she would have had to give and ought to receive, as the case may be, was, indeed, four weeks. There is, however, an aspect of the matter that requires a little consideration; namely, the statutory basis of whether or not the court has power to actually make an award for the amount sought. The claim is made pursuant to s.117 of the Fair Work Act 2009 (Cth) which sets out the minimum periods of notice in a general way and pursuant to s.117 Ms Perera, as an employee having worked more than one, but not more than three years, would have been entitled to two weeks notice.

2. However, “safety net contractual entitlement” is defined in s.12 of the Act as meaning an entitlement under a contract between an employer and an employee that relates to any of the subject matters described in:

   (a) of subsection 61(2) (which deals with national employment standards). 

   Section 61(2) expressly includes notice of termination so, of course, that picks up in the definition. The significance of that lies in s.541 and s.542 of the Act pursuant to which this claim is brought and I note that in the Association of Professional Engineers Scientists And Managers Australia v Wollongong Coal Limited [2014] FCA 878 Buchanan J came to the clear view that claims for what might be described as over-award or in excess of basic entitlement can be pursued under that section. I am quite satisfied, therefore, that the court entertains proper jurisdiction to make an order on the claim if the claim is, indeed, made out.

3. The affidavit filed in support of the application by Ms Perera sworn on 29 June 2016 deposes to her having tendered a letter of resignation on 5 February 2016.  On 5 February 2016 a letter was sent to Ms Perera by the respondent noting her resignation and stating inter alia:

   “We confirm your last day here will be Friday 4th March February 2016 or earlier if management can rearrange your replacement.”

4. The letter went on to ask Ms Perera not to notify the fact that she was leaving, but on 10 February 2016 Ms Newhouse wrote a letter to kinder families informing them that Ms Perera was leaving.  The letter was laudatory of Ms Perera’s employment, but did state in paragraph 2:

   “We are thrilled to have been able to employ a kinder teacher quickly and we would like you all to make welcome Amali.”

5. On 3 August 2016 Ms Newhouse affirmed an affidavit in which she took serious issue with the description given by Ms Perera and the gravamen of what she had to say was that on 11 February 2016, on the Thursday, Ms Newhouse advised the applicant that if she chose to finish her employment before the end of the notice period she had provided, she would only be paid out till 12 February 2016 plus her annual leave entitlements.  Ms Newhouse deposed that she asked if Ms Perera understood this and Ms Perera replied, “Yes, of course.”  It is common cause that Ms Perera was asked by Ms Newhouse to provide a letter confirming that she was giving up the balance of her notice period and it is clear that she has not done so. 

6. Ms Perera says that she never agreed to do so.  Ms Newhouse says that this requirement was simply a standard business practice.  The oral evidence given by the parties is essentially consistent with the affidavit evidence.  I note that neither of the two witnesses flinched, so to speak, in giving their evidence; they both stuck resolutely to their story.  In the circumstances, it becomes a matter of forming the judgment as to what occurred.  I think that Ms Perera would never have given up the balance of her notice period.  For her to have done so and then brought this claim to court would mean bringing a claim she knew to be devoid of any merit at all times.  That is a significant finding to make.  She was a forthright witness who stuck to her story.

7. I know that the resignation was forwarded on 5 February 2016.  I know that on the same date a letter was sent positing the possibility of earlier finish, but not mentioning any loss of entitlements.  I know that Ms Newhouse asked Ms Perera to formally, as it were, renounce any additional notice period and that Ms Perera did not do so.  Whatever may have been said – and it is not possible to arrive at a conclusive view about this – at the interview that took place on 10 or 11 February as the case may be, it is quite clear that it did not involve Ms Perera concluding that she had any desire to give up her entitlements and she did not do so.  I note that Ms Newhouse says, very understandably, that there was no way they would ever pay for two employees at the same time and I can readily accept that that is so. 

8. And I note that by the email of 10 February 2016 to the parents, Ms Newhouse informed them as a fact that a new employee had been engaged.  In all the circumstances, it is clear that Ms Perera’s account of the events is to be preferred.  That being so and she not having agreed to renounce the period of notice, she is entitled to be paid. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 26 September 2016