RIZK v Ramzy Cleaning Services

[2016] FCCA 461

FEDERAL CIRCUIT COURT OF AUSTRALIA

RIZK v RAMZY CLEANING SERVICES [2016] FCCA 461

Catchwords:
INDUSTRIAL LAW – Claim for unpaid wages and leave – application dismissed.

Legislation:

Cleaning Services Award 2010

Fair Work Act 2009

Applicant: MARY RIZK

Respondent: RAMZY CLEANING SERVICES PTY LTD

File Number: MLG 526 of 2015

Judgment of: Judge McGuire

Hearing date: 2 March 2016

Date of Last Submission: 2 March 2016

Delivered at: Melbourne

Delivered on: 17 May 2016

REPRESENTATION

Counsel for the Applicant: Mr Gardener

Solicitors for the Applicant: United Voice Victoria

Counsel for the Respondent: Ms Lakey

Solicitors for the Respondent: N/A

ORDERS

1. That the application filed 17 March 2015 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 526 of 2015

MARY RIZK

Applicant

And

RAMZY CLEANING SERVICES

Respondent

REASONS FOR JUDGMENT

1. This application comes before me as a small claim pursuant to the Fair Work Act 2009. Both the applicant and the respondent had representation before me.

2. The applicant was employed by the respondent as a cleaner between 1 January 2009 and 24 October 2014.  Her duties were completed at a school with which the respondent enjoyed a contract.  The applicant was employed on a part‑time capacity and governed by the Cleaning Services Award 2010.

3. The applicant's claim has two elements being:

(i)	Unpaid wages	$526.73
(ii)	Unpaid annual leave (amended)	$9335.52
TOTAL	$9862.25

1. The applicant says that she is owed wages at the award rate of $23.51 per hour for the period between 20 October 2014 and 24 October 2014.  Secondly, the applicant claims that she had accrued annual leave of 19 weeks at the termination of her employment, constituting her claim for $9335.52 inclusive of statutory leave loading.

2. The applications are opposed on both elements.

3. Both parties gave short viva voce evidence before me and were cross‑examined. The respondent provided a detailed Response dated 20 April 2014, including numerous annexures.  The applicant relied on her application and Form 5‑ Small Claim under the Fair Work Act 2009.

4. The determination of this matter relied to a degree on issues of credit between the parties.

Claim of unpaid wages - $526.73

1. The evidence in Court did not address this issue in any detail, with the focus being on the larger claim in respect of unpaid annual leave.  The challenge to the applicant's claim, however, is set out in the Response.  The respondent says that the applicant was paid on her last day, being 24 October 2014, for the period 4 October 2014 to 24 October 2014.  He concedes a short‑payment of $42.90 was rectified after mediation with the Fair Work Ombudsman. The respondent puts before me a copy of a pay slip for the relevant period showing a payment of $1415.83.

2. The applicant has not corroborated her claim in any way. On the balance of probabilities I prefer the evidence of the respondent, corroborated by the payslip, and his concession as to rectification of a small underpayment. 

3. Whilst neither party was seriously or successfully challenged in the witness box in respect of their evidence in relation to this claim, the corroboration of the payslip, and the respondent's concession in respect of a small underpayment are persuasive.

4. On the balance of probabilities, therefore, I do not find that the applicant has made out this part of her claim.

Unpaid annual leave - $9335.52

1. Each of the parties gave detailed evidence as to their understanding of the circumstances of the applicant's employment and prior communications between them.

2. The applicant says that she did not take leave during the five years of her employment, save for a period of four weeks to have a baby, and a short period when she was injured, but during which her husband substituted for her.  She says that she worked throughout the school holidays, undertaking specific cleaning functions during holidays, which could not be completed when students were at school.

3. The respondent says that his contract with the school specifically provided for cleaners to take their holidays during school holidays, being for one week in each of the four holiday periods.  The respondent annexes an email (undated) accordingly from School Cleaning Advisory Services.

4. The respondent says that if the applicant worked during all of the school holidays, then she did so voluntarily and without his knowledge, and contrary to his instructions. He says that he communicated the terms of the applicant's employment to her, including when she was to take holidays. He says that direct contact between him and the applicant was minimal during the course of her employment and that there was no practice of her being directly supervised, or of him visiting the school. Significantly, the respondent annexes to his affidavit at SC6, a portion of a communication purporting to be from the applicant.  The legitimacy of the annexure was not challenged.  It says:

   …he said to me that the pay I give you in the two weeks school holidays (two weeks of pay), one week payment is for the school holiday work you do, and the other one week payment is for your annual leave which …

5. This communication, in my opinion, corroborates the respondent's evidence that:

   i)The applicant was made aware of the respondent's contractual arrangements with the school, that cleaners were to take their holidays during school holidays;

   ii)That the applicant's holiday was paid over the 52 weeks of a financial year, being an extra amount added to each pay.

6. This assertion was not, or not successfully, challenged.

7. The respondent further asserts that he would send different staff to the school during school holidays to attend to specific cleaning tasks.  The applicant agreed that this was the case, although she maintained that her own attendance was also necessary.

8. On balance, I prefer the respondent's evidence.  I am satisfied that he communicated the terms and conditions of the applicant's employment to her.  I am satisfied that she was paid her holiday pay via the method of spreading her entitlement over the 52 weeks. I agree with the respondent that the applicant, in sending her husband as a substitute when she was injured, was her own unilateral decision and one probably contrary to the terms of her employment but which, in any event, does nothing to corroborate her claim. 

9. It follows that I am not satisfied that the applicant has made out her claim for unpaid annual leave.

Conclusion

1. Not being satisfied that the applicant has made out either element of her claim, the application will be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  17 May 2016