Sankararamalingam v Infotech Professionals Pty Limited (No.2)
[2017] FCCA 378
•24 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANKARARAMALINGAM v INFOTECH PROFESSIONALS PTY LIMITED (No.2) | [2017] FCCA 378 |
| Catchwords: INDUSTRIAL LAW – Claim for compensation in connection with employment – whether the respondent contravened provisions of the Fair Work Act 2009 (Cth) – no contraventions found – application dismissed. |
| Legislation: Fair Work Act 2009, ss.87, 117, 119, 123(1), Div.11 of Pt.2-2 |
| Cases cited: Carr v Finance Corporation of Australia Ltd (No.1) (1981) 147 CLR 246; [1981] HCA 20 |
| Applicant: | VALLIGOMATHY SANKARARAMALINGAM |
| Respondent: | INFOTECH PROFESSIONALS PTY LIMITED |
| File Number: | SYG 2116 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 16 February 2017 |
| Date of Last Submission: | 16 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 24 March 2017 |
REPRESENTATION
| The applicant appeared in person. |
| Counsel for the Respondent: | Mr I. Latham |
| Solicitors for the Respondent: | Sachi Legal |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2116 of 2016
| VALLIGOMATHY SANKARARAMALINGAM |
Applicant
And
| INFOTECH PROFESSIONALS PTY LIMITED |
Respondent
REASONS FOR JUDGMENT
The respondent (“Infotech”) conducts the business of an education provider. The applicant was employed by Infotech from about January 2012 until November 2014 in various capacities including teacher and academic coordinator.
The applicant now seeks compensation from Infotech in connection with her employment.
A number of claims brought by the applicant were summarily dismissed on 4 November 2016: see Sankararamalingam v Infotech Professionals Pty Ltd [2016] FCCA 2729. The applicant pressed the following claims at the final hearing:
a)Infotech unilaterally reduced her salary;
b)she was not paid for work done by her as a coordinator;
c)she was not paid holiday pay and personal/carer’s leave; and
d)she was neither given a notice of termination nor paid redundancy.
In addition, the applicant raised a new claim: namely, that she was not paid for work done by her in February 2014.
The first of the claims pressed by the applicant was amongst the grounds summarily dismissed and, for that reason, the applicant was not entitled to attempt to re-run her argument in respect of it.
For the following reasons, the remaining grounds are misconceived and must be rejected.
Consideration
First ground: failure to pay for work performed as a coordinator
This ground is based on a letter of reference dated 25 May 2015, given by Infotech to the applicant in respect of her employment with the company. It relevantly states:
This letter is to confirm that Sankaramalingam Valligomathy was employed by InfoTech Professionals Pty Ltd.
Valligomathy was employed in the Position of Trainer and Academic Coordinator from 2007 until 17th November 2014.
The period referred to in the reference went beyond that during which the applicant was employed by the respondent. That is explicable by the fact that Infotech only acquired the business in 2011 and the applicant had been employed by its predecessor.
The applicant argues that this letter shows that she was employed as both a trainer and academic coordinator throughout her employment by Infotech; however, her payslips for the period from January 2012 to the end of 2013 only refer to her pay in respect of work performed as a trainer. For example, her payslip for the period from 14 July 2013 to 27 July 2013 relevantly refers only to “Base Salary”. By contrast, the applicant’s payslip for the period from 23 February 2014 to 8 March 2014 refer to “Base Salary” as well as “COORDINATION @ 25.”
I am not satisfied that the applicant in fact worked as a coordinator throughout her employment with Infotech. First, the applicant herself did not give any evidence to that effect. Rather, she relied solely on a description in a letter of reference which is somewhat ambiguous. The reference does not clearly state that the applicant worked as a coordinator for the whole period referred to therein. Further, there are no underlying records that establish that fact. Importantly, the only direct evidence of the terms of the applicant’s employment related to the period from January 2014 to November 2014.
By letter dated 28 January 2014, Infotech offered the applicant work as a “Teacher/Tutor/Instructor” for 20 hours per week of teaching as well as 5 hours preparation for the period 28 January 2014 to 4 April 2014. The applicant accepted that offer by signing an annexure to the letter entitled “Terms of Agreement”.
In a letter dated 6 February 2014, Infotech informed the applicant that she had been allocated 15 additional working hours per week as an “academic coordinator” to be remunerated at $25 per hour. The applicant signed that letter on 6 February 2014.
By letter dated 28 April 2014, Infotech offered the applicant work as a teacher for 50 hours of teaching per week as well as 12.5 hours of preparation from 28 April 2014 to 13 May 2014. There was no reference in this, or any other document, to work as a coordinator for that period.
On 15 May 2014, Infotech offered the applicant work as a “Career Advisory Services Co-ordinator” from 15 May 2014 to 14 November 2014.
Those offers reveal that, at least in the 2014 calendar year, the applicant was offered different types of work for short, specified periods of time. In at least the first period, up to early April 2014, the applicant was employed as both a teacher and coordinator. Her payslips accurately reflect the additional work done as a coordinator. In the absence of any other contemporaneous records for the years 2011 to 2013, and given the lack of reference to work as a coordinator in the applicant’s payslips for that period, I am not satisfied that she did work as a coordinator in that period.
For that reason, the applicant has not established any basis for her claimed entitlement to be paid as a coordinator prior to 2014 and this ground is rejected.
Second ground: failure to pay holiday pay and personal/carer’s leave
The applicant claimed that she was not paid all of her entitlements to holiday pay in the year ending 30 June 2012. The argument was straightforward. First, the applicant calculated the amount of annual leave to which she was entitled: annual leave is 4 weeks per year; 4 weeks at 38 hours per week is 152 hours. Secondly, she showed from her payslips that she had only been paid for a total of 79.99 hours for annual leave. Thirdly, by deducting 79.99 from 152 she calculated the amount of leave for which she was not paid, namely, 72 (rounded down). Finally, she multiplied 72 by her hourly rate of $34.74 to arrive at the amount of $2,501.28.
There are two difficulties with the applicant’s argument. The first is that the respondent did not employ the applicant until about January 2012. For that reason, it was not obliged to pay her for annual leave accrued prior to that time.
Secondly, and more critically, the assumption in the applicant’s argument is that she was employed on a full time basis but there is no evidence to support that assumption. An employee is, relevantly, entitled to 4 weeks of paid annual leave for each year of service with his or her employer: sub-s.87(1)(a) of the Fair Work Act 2009 (Cth) (“Act”). The entitlement accrues progressively during a year of service according to the employee’s ordinary hours of work and accumulates from year to year: s.87(2) of the Act.
The applicant did not adduce any evidence that she worked 38 ordinary hours of work in the year ending 30 June 2012, or in any period during which she was employed by Infotech. For that reason, this ground must fail.
In the course of the proceedings, Infotech checked its records concerning the applicant’s holiday pay and discovered that it had failed to pay her leave loading for her annual leave. Having discovered that, Infotech paid the outstanding amount to the applicant and there remains no issue about it.
Third ground: failure to give notice or to pay redundancy
The applicant claims that she was neither given notice of termination of her employment, nor paid any amount for redundancy. The applicant says that she was entitled to both by virtue of ss.117 and 119 of the Act. Those sections provide:
(117)Requirement for notice of termination or payment in lieu
Notice specifying day of termination
(1)An employer must not terminate an employee's employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).
Note 1:Section 123 describes situations in which this section does not apply.
Note 2:Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by:
(a)delivering it personally; or
(b)leaving it at the employee's last known address; or
(c)sending it by pre-paid post to the employee's last known address.
Amount of notice or payment in lieu of notice
(2)The employer must not terminate the employee's employment unless:
(a)the time between giving the notice and the day of the termination is at least the period (the minimum period of notice ) worked out under subsection (3); or
(b)the employer has paid to the employee (or to another person on the employee's behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee's behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.
(3)Work out the minimum period of notice as follows:
(a)first, work out the period using the following table:
Period Employee's period of continuous service with the employer at the end of the day the notice is given Period 1 Not more than 1 year 1 week 2 More than 1 year but not more than 3 years 2 weeks 3 More than 3 years but not more than 5 years 3 weeks 4 More than 5 years 4 weeks
(b)then increase the period by 1 week if the employee is over 45 years old and has completed at least 2 years of continuous service with the employer at the end of the day the notice is given.
(Emphasis in original)
(119) Redundancy pay
Entitlement to redundancy pay
(1)An employee is entitled to be paid redundancy pay by the employer if the employee's employment is terminated:
(a)at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b)because of the insolvency or bankruptcy of the employer.
Note:Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.
Amount of redundancy pay
(2)The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee's base rate of pay for his or her ordinary hours of work:
Redundancy pay period Employee's period of continuous service with the employer on termination Redundancy pay period 1 At least 1 year but less than 2 years 4 weeks 2 At least 2 years but less than 3 years 6 weeks 3 At least 3 years but less than 4 years 7 weeks 4 At least 4 years but less than 5 years 8 weeks 5 At least 5 years but less than 6 years 10 weeks 6 At least 6 years but less than 7 years 11 weeks 7 At least 7 years but less than 8 years 13 weeks 8 At least 8 years but less than 9 years 14 weeks 9 At least 9 years but less than 10 years 16 weeks 10 At least 10 years 12 weeks
Those sections are contained in Div.11 of Pt.2-2 of the Act. That division does not apply to an employee employed for a specified period of time: sub-s.123(1)(a). In 2014 the applicant was employed for three separate, specified periods of time:
· 28 January 2014 to 4 April 2014
· 28 April 2014 to 13 May 2014
· 15 May 2014 to 14 November 2014.
The applicant’s employment came to an end on 14 November 2014 and, by operation of s.123 of the Act, she was not entitled to either notice of termination or redundancy.
This ground is rejected.
Additional ground: failure to pay for work performed in February 2014
The applicant’s bank records show that she did not receive any pay from Infotech in February 2014 whereas, as noted above, the applicant was employed from the period 28 January 2014 to 4 April 2014. The payslips in respect of other periods reveal that she was ordinarily paid on a fortnightly basis. Prima facie, it appears that the applicant should have been, but was not paid for work performed in February.
However, on closer examination, the evidence reveals that the applicant was paid partly in advance (on 30 January 2014) and partly in arrears (on 12 March 2014) for the work performed by her in February 2014. The first payment is shown in the applicant’s bank statements for the period. The second payment is shown in her payslips for February.
There are three payslips for the relevant period: the first for the period 26 January 2014 to 8 February 2014, the second for the period 9 February 2014 to 22 February 2014, and the third for the period 23 February 2014 to 8 March 2014. Each of them shows that payment was made by electronic transfer on 12 March 2014. The second shows that the payment made in January was adjusted. I have inferred that that means that the January payment was made in advance rather than in arrears, as was usually the case.
As the applicant did not tender any bank records for 12 March 2014, I am satisfied that the payslips accurately record that the applicant was paid for work performed by her in February 2014. For that reason this claim is rejected.
Conclusion
Each of the applicant’s grounds has been rejected. Her application must be dismissed.
I will hear the parties on costs.
Postscript
I note that both the applicant and Counsel for the respondent sent further submissions after the hearing without leave of the Court. The applicant has continued to correspond with the Court, perhaps on the misunderstanding that this was an acceptable practice. The respondent’s counsel sought to correct a submission made by him in connection with one of the applicant’s grounds; however, I have not given either those submissions or anything sent by the applicant any attention: see Patel v Minister for Immigration & Border Protection [2016] FCCA 954 at [15] citing MZABP v Minister for Immigration & Border Protection [2015] FCA 1391; Carr v Finance Corporation of Australia Ltd (No.1) (1981) 147 CLR 246; [1981] HCA 20 at 257-258 per Mason J; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 at [27]-[31] per McHugh J; NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90; [2004] HCA 48 at [191]-[192] per McHugh A-CJ, Gummow, Callinan and Heydon JJ; Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for the Sustainability, Environment, Water, Population & Communities [2013] FCA 782 at [2]-[5] and Singh v Department of Employment & Workplace Relations [2009] FCAFC 59 at [66]-[72].
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 24 March 2017
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