Sawtell v P.J. Clarke Investments (Qld) Pty Ltd

[2018] FCCA 2204

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAWTELL v P.J. CLARKE INVESTMENTS (QLD) PTY LTD [2018] FCCA 2204

Catchwords:
INDUSTRIAL LAW –Small Claim under Fair Work Act – claim for unpaid work performed at a Motel – application dismissed.

Legislation:

Fair Work Act 2009 (Cth)

Federal Circuit Court Rules 2001 (Cth)

Applicant: CAROL SAWTELL

Respondent: P.J. CLARKE INVESTMENTS (QLD) PTY LTD

File Number: SYG 3317 of 2017

Judgment of: Judge Altobelli

Hearing date: 17 July 2018

Date of Last Submission: 17 July 2018

Delivered at: Sydney

Delivered on: 17 July 2018

REPRESENTATION

The Applicant appeared in person

Mr Peter Clarke appeared as authorised representative for the Respondent

THE COURT ORDERS THAT:

1. The Application filed 6 July 2018 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3317 of 2017

CAROL SAWTELL

Applicant

And

P.J. CLARKE INVESTMENTS (QLD) PTY LTD

Respondent

REASONS FOR JUDGMENT

1. In the matter of Sawtell v P.J. Clarke Investments (QLD) Pty Ltd, I dismiss the Application filed 6 July 2018.  I provide the following Extempore Reasons. I have, today, heard a small claim brought pursuant to the provisions of the Small Claims Rules of the Federal Circuit Court Rules 2001 (Cth), which in turn are based on the small claims provisions of the Fair Work Act 2009 (Cth).

2. In the Applicant’s Application filed 6 July 2008, she makes claims that are very neatly summarised in her case outline document.  I will incorporate into these, my ex tempore Reasons, both the Orders sought by her and the summary of argument [at schedule 1].  In effect, the Applicant sought an amount of $20,000, which of course is the maximum that I can order under the small claims procedures of the legislation, for payments that she says she was entitled to but was not paid whilst working for the Respondent.

3. The Respondents, at all relevant times, sought that Ms Sawtell’s Application be dismissed.  They say that the amount of time that she says that she was working for them was not as alleged and that, in fact, in reality, reading between the lines, if they had brought a counter claim or a cross claim, they would have been able to seek an amount from Ms Sawtell. 

4. The evidence that each party relies on was referred to during the course of today’s proceedings and specifically, the Affidavits of the Applicant filed 26 October 2017, 6 July 2018 and 12 July 2018; and the Affidavits of Mr Clarke filed 26 March 2018, that is, Mr Peter James Clarke, the Principle of the Respondent, and his brother, Mr Geoffrey Alan Clarke filed 26 June 2018.

5. The Applicant’s claim fails because she has not satisfied me, on the balance of probabilities, that the matters that she asserts in her evidence are in fact correct.  There are a number of problems with the Applicant’s evidence.  The Applicant’s evidence was, at time, less than clear.  It was, perhaps most significantly, inconsistent.  Sometimes, it was internally inconsistent.  That is to say that what she was saying and what she said in writing was not aligned. 

6. But perhaps the greatest concern the Court has is the inconsistency between the evidence of Ms Sawtell and the evidence of the two Mr Clarkes, and perhaps even more acutely, the inconsistency that exists between the Applicant’s evidence and that in the business records of the Respondent.  The business records, in particular, seem to be fairly typical for a small business of this type.  They appear to follow quite common procedures, such as, for example, basic documentation evidencing the creation of an employment relationship.  In this case, the letter of engagement. 

7. The business records as to the hours worked and the payments made appear, once again, reasonable for a small business of this nature.  It is possible, the Court acknowledges, that payslips may not have been provided to the Applicant, strictly in accordance with the Act.  Perhaps, in reality, they were made available to her in the sense that they were in a known place.  But the overall impression created by these records is that the Applicant brings a claim in respect of working hours that vastly exceed the reality.

8. The Applicant’s claim was really characterised on the basis that she was a live-in-manager of the Motel and that she oversaw a Motel that had a moderate level of activity in terms of people coming and going. 

9. The evidence of the Respondents was starkly different.  Moreover, the evidence of the business records is starkly different.  It is hard to reconcile the two different versions of what took place.  The business records ultimately tip matters in favour of the Respondents.  For the Court to have ignored the business records would involve accepting the implied, if not express, contention on behalf of the Applicant that these records were, in effect, fraudulently created for the purposes of these proceedings.  The Court is not prepared to make that finding. 

10. The Applicant’s evidence towards the end of her evidence, about where exactly she was living at the Motel, is so illogical as to beggar belief.  The onus of proof was always on the Applicant. It should be recognised that under the Small Claims Rules, the rules of evidence are largely abrogated in favour of rules of fairness. All the parties in this matter were relatively unsophisticated and it was necessary for the Court to adopt a more inquisitorial approach to seeking to understand their claims, and then to try to work out where the truth lay.

11. It was not always an easy exercise. Nonetheless, doing the best the Court can, in circumstances where the evidence was so conflicting, the Court finds that the Applicant has not established her case and, accordingly, her Application is to be dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 14 August 2018

Schedule 1

Minute of Orders Sought by Applicant

1. The Applicant seeks the following Orders:

a.Declaration that the respondent contravened section 45 of the Fair Work Act 2009 (Cth) by failing to pay entitlements pursuant to clauses 13.1, 32.1 and 32.3 of the Hospitality Industry (General) Award 2010 to the applicant.

b. Order awarding compensation in the amount of $20 000 for loss the application has suffered because of the contravention of section 45 of the Fair Work Act 2009 (Cth), in that the respondent contravened clauses 13.1, 32.1 and 32.2 of the Hospitality Industry (General) Award 2010.

c.     Interest.

Summary of Argument

1. It is agreed that the applicant was employed by the respondent from 6 March 2017 until the respondent terminated the applicant’s employment on 25 May 2017.

1. It is agreed that the applicant performed work for the respondent which can be classified within the definition of Front Office grade 1 under the Hospitality Industry Award 2010.

1. The applicant disagrees that the timesheets produced by the respondent are an accurate record of the hours that she worked. The applicant contends that the timesheets that are BM 4 to the affidavit of Peter Clarke filed on 26 March 2018 are not contemporaneous records and were produced in response to requests by the Fair Work Ombudsman for employee records relating to the applicant.

1. The applicant contends that she worked many hours while she was employed at the Ballina Motel, performing the duties outlined in her affidavit filed on 6 July 2018. The applicant contends that Mr Peter Clarke was at all times aware of the work that the applicant was performing.

1. Mr Peter Clarke never told that applicant to cease performing work. Despite not having received these documents, the applicant in fact performed tasks in accordance with the employment contract and position description that are BM 2 and 2.1 to the affidavit of Peter Clarke filed on 26 March 2018.

1. The applicant never received the pay dockets that are BM 5 to the affidavit of Peter Clarke filed 26 March 2018. The respondent did not pay the applicant in accordance with the pay dockets. The applicant contends that the pay dockets were created by the respondent in response to the Fair Work Ombudsman’s request for employee records.

1. Save for three payments totalling one thousand nine hundred dollars, made by Mr Geoff Clarke as outlined at paragraphs 26 and 27 of the applicant’s affidavit filed on 6 July 2018, the respondent did not pay the applicant for the work that she performed.

1. In contravention of section 45 of the Fair Work Act 2009 (Cth) the respondent did not pay the applicant in accordance with the rate applicable to a Front Office grade 1 under the Hospitality Industry General Award 2010.