Shearman v A.S.A.P. Services Pty Ltd

[2016] FCCA 1472

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHEARMAN v A.S.A.P. SERVICES PTY LTD [2016] FCCA 1472

Catchwords:
INDUSTRIAL LAW – Small claim – employee summarily dismissed for alleged serious misconduct – whether employer can rely on matters not known at time of dismissal – whether employee’s conduct as found by the court constitutes serious misconduct – overtime claims not made out – claims for waiting time made out in part.

Legislation:

Fair Work Act 2009, ss.117, 123

Plumbing and Fire Sprinklers Award 2010, cl.27

Applicant: SHEARMAN

Respondent: A.S.A.P. SERVICES PTY LIMITED

File Number: MLG 1962 of 2015

Judgment of: Judge Burchardt

Hearing date: 27 January 2016

Date of Last Submission: 27 January 2016

Delivered at: Melbourne

Delivered on: 29 January 2016

REPRESENTATION

Counsel for the Applicant: Mr Shearman in person

Counsel for the Respondent: Ms Pratt and Ms Scoble

ORDERS

1. That the respondent pay Mr Shearman $2,882 less any applicable tax within 14 days.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1962 of 2015

DAVID SHEARMAN

Applicant

And

A.S.A.P. SERVICES PTY LIMITED

Respondent

REASONS FOR JUDGMENT

1. The application before the court was filed on 11 May 2015.  It was filed as a small claim in the court’s industrial list.  The claim asserts that the employment of Mr Shearman was governed by the Plumbers and Fire Sprinklers Award 2010 (“the Award”), that he started work on 8 September 2014 and was dismissed summarily on 2 April 2015.  His claims total $12,398.20.  Waiting time amounts to $9,129.10.  Overtime is $1,817.  Two claims which cumulatively came to $11 for parking fees were struck out summarily by me as being likely to take more time than they were worth. 

2. And there is a claim for payment in lieu of notice in the sum of one week’s pay of $1,441. There is no dispute that the Award is correctly cited. There is also no dispute that Mr Shearman was an employee, although I note that some of the papers put before the Court might have suggested he was an independent contractor. The claims articulated by Mr Shearman are probably better understood by reference to his affidavit filed on 26 August 2015. And taking the claims from that, they are articulated as, first, a claim pursuant to s.117(3)(a) of the Fair Work Act 2009 (Cth) (“the Act”) for one week’s pay in lieu of notice.

3. The matter in issue is the defence available pursuant to s.123 of the Act in that it is asserted by the respondent that Mr Shearman was dismissed for serious misconduct. The second claim made is for waiting time pursuant to cl.27.(4)(b) of the Award, which I will read out. It reads as follows:

   “[w]hen notice is given in accordance with clause 17 – Termination of employment, monies due to the employee must be paid at the time of termination.  Where this is not practicable monies will be sent by registered or, if the employee is normally paid by electronic funds transfer, transferred into the employee’s account within two working days and waiting time will be paid as follows:… 

   (b) where the employer gives notice, from termination up to the time of posting at the rate of eight hours ordinary time per day up to a maximum of one week’s pay.”

4. The second claim articulated by Mr Shearman is a claim for late payment of his termination notice, which of course the respondent says it was not obliged to pay in any event.  I should interpolate and say that there was some discussion during the hearing as to what “waiting time” was.  I have not seen a waiting time clause of this particular sort before, although I would infer that the penalties for late payment may have something to do with the relatively itinerant nature of the employment covered.

5. The third claim is for waiting time for pay for the week of 5 April 2015.  That is asserted under cl.27.3 of the Award which reads:

   “An employee kept waiting for their wages on pay day for more than a quarter of an hour after the usual time of ceasing work must be paid at overtime rates after that quarter hour with a minimum of a quarter of an hour.”

6. The fourth claim is a claim for waiting time for the week’s pay ending 17 April 2015 and it was again pressed under cl.27.3.  The fifth claim is a claim for unpaid overtime in the sum of $1,817, as set out in annexure 1 to the affidavit. The sixth claim is an interrelated claim pursuant to cl.27.3 of the Award for waiting time and for non-payment of the overtime allegedly not paid.  The seventh claim is a claim for waiting time where pay was allegedly paid late on various other occasions in the total sum of $4,518.  

7. The eighth claim, as I have already referred to it, is a claim for two payments for parking of $5.50 which I summarily struck out.

8. The defence of the respondents has been added to from time to time.  It is essentially set out in a letter sent to Mr Shearman by the respondent on 2 April 2015 which I will read out:

   “Dear David,

   Re: Termination of your employment. 

   I am writing to you about the termination of your employment with A.S.A.P. Services Proprietary Limited, T/as as Laser Plumbing Ringwood.

   I refer to our meeting today, 2 April 2015, which was attended by you.  During the meeting we discussed the intentional and fraudulent customer work authorisation tax invoice and timesheet hours of work recorded and also the customer complaints received and the impact of this on a small business. 

   This meeting was attended by you, Sharon Pratt, Maurie Fitzgerald and Kelly Scoble and we spoke about the overtime payment you fraudulently received on 12/02/2015.  This came to our attention whilst preparing a written warning for toll fines received when you had been advised on several occasions that toll roads are not to be used as the vehicles do not have e-tags and also in relation to two customer complaints received about the manner you conducted yourself when representing the company.  This time it was noted that the toll fines incurred in your vehicle proved that the completion times you recorded in customer invoices and your timesheets are, in fact, fraudulent.  We also spoke about the customer complaints received both verbally and in writing this month.”

9. The letter goes on to characterise this conduct as serious misconduct and the dismissal was summary accordingly.

10. It is clear by way of background that the applicant was paid his accrued entitlements on 8 April 2015.  So much is plain from the materials behind tab 3 in the book of materials filed with the court by the respondents.  I note that the applicant’s bank records, which were annexure 2 to his affidavit, do not progress onwards after 1 April 2015, so the only records before the court, which I do accept, are that the moneys were paid on 8 April 2015.

11. The applicant was dismissed on 2 April 2015 at the end of the day, following what was clearly a lengthy meeting.  I should make it clear that I accept for the purposes of cl.27.4 of the Award that, in those circumstances, it was not practicable to pay Mr Shearman’s accrued entitlements on that day.

12. That brings me, therefore, to the various claims in terms.  The first claim is for payment of one week’s pay in lieu of notice.  The question is whether Mr Shearman’s conduct amounted to serious misconduct.

13. Here the respondent has thrown everything it has, so to speak, at the applicant, including an assertion that he was, in fact, in Lilydale on 12 February 2015 which I accept is clearly a wrong allegation.

14. I would commence with the reasons actually given at the time.  The first and by far the most important was the allegation that Mr Shearman falsified his overtime claim on 12 February 2015 on which date it seems fairly clear he was predominantly working at a property owned by the prominent Gandel family in Toorak. 

15. It was put that he was shown to have been on a toll road on that day and, despite Mr Shearman’s slightly unconvincing denials, I accept that that is established.  But I also accept Mr Shearman’s explanation.  He was sent to get a toilet and return with it.  There was no reason for Mr Shearman to seek to cheat Ms Gandel and, according to him – and I accept this – Ms Gandel had something of a supervisory role in the project.  I think Mr Shearman is intelligent enough to know that this was a job where you had to be straight.  I have heard and seen his evidence and on this point I accept it.  I, therefore, do not accept that he fraudulently falsified his overtime record relating to 12 February 2015.

16. The second matter raised is the question of road tolls and I accept that Mr Shearman used roads that attracted a toll in circumstances where he should not have.  However, this was clearly an ongoing issue far more broad than just Mr Shearman himself.  In fact, it emerged during the evidence that the employer was in the practice of generally passing on these fines and had, in fact, done so on various occasions to Mr Shearman.  To an extent the conduct was in a way condoned.  I did not find the evidence of either party particularly convincing about this particular area.

17. The third matter is the question of customer complaints. I point out that I heard no evidence of any complaint by Ms Gandel. It is, however, clear that Mr Shearman’s manner is somewhat abrasive – this was obvious even in court – and it is likely that his conduct gave rise to complaints which had some measure of justification to them. However, even taken at their highest, they would not, in my view, amount to serious misconduct. The question is – and I paraphrase s.123(1)(b) of the Act – whether Mr Shearman is an employee whose employment was terminated for serious misconduct. If one wants to know what “serious misconduct” means one might start profitably with the Law of Employment; Macken, O’Grady, Sappideen and Warburton, 5^th edition, Law Book Company, 2002.  That is, of course, now out of date but the relevant principle to which I refer is not.  And at page 211 the learned authors said under the heading Misconduct:

    “Invariably, the starting point for discussion of misconduct has been a statement by Lord James of Hereford in Clouston and Co v Corr (1906) AC 122 at 129 that, “there is no fixed rule of law to find the degree of misconduct which will justify dismissal.” 

18. In my view, the same can be said of the phrase “serious misconduct”, although doubtless there is authority at least in the Industrial Relations Commission about this.  The question, therefore, arises in this case about the vexed issue of after-acquired knowledge.  In other words, in this case the alleged fraudulent overtime claims, other than that on 12 February 2015 upon which the respondent has relied and in relation to which it has placed material before the court.  Although this takes us out of order, I therefore come to the claim for $1,817 for overtime.  I note that the applicant, Mr Shearman, said specifically that he was aware of the alleged underpayments of overtime in respect to which he now claims at the time that they were originally underpaid. 

19. Annexure 1 to Mr Shearman’s affidavit shows that underpayments according to him started occurring as early as 26 October 2014.  From the evidence given, it is clear there was some discussion and possibly some disagreement about overtime claims.  Having seen Mr Shearman I do not accept that he would have permitted underpayment of overtime or, indeed, anything else to pass without significant challenge.  As Ms Scoble said, the applicant would keep on complaining if he was not paid.  Having seen and heard the various witnesses, my findings are, first, Mr Shearman was not underpaid any overtime, but, second, he made no fraudulent claims for overtime. 

20. At one level these might be thought to be inconsistent findings, but I should make it plain that I think that all the people who gave evidence before me did so honestly, but that to an extent their memories had played them slightly false.  As a result of this finding, it is not necessary for me to determine whether after-acquired knowledge of misconduct not relied on at the time of dismissal can be relied on.  I should say that this is a vexed issue in the area of employment law and gives rise to a lot of authority on the various statutory schemes from time to time.

21. The phraseology in s.123 suggests perhaps that only the reason for termination actually activating the decision at the time can be relied on and since I do not accept that Mr Shearman made any fraudulent overtime claims I do not need to consider the matter, but equally I am not making any award in his favour for overtime because I accept that he was validly paid the overtime that he was entitled to.

22. Taking all of Mr Shearman’s conduct, as I have found it to be, as a whole it was, in my view, not such that it could be described as serious misconduct.  The most serious allegation, that of fraud on 12 February 2015, is not made out.  Mr Shearman’s lapses in using toll roads and his poor interpersonal skills dealing with customers do not, in my view, in all the circumstances, constitute serious misconduct.  Accordingly, Mr Shearman is entitled to one week’s notice and it is agreed that this is worth $1,441 gross. 

23. The second claim is for waiting time pursuant to cl.27 of the Award.  That is also clearly made out because it is clear Mr Shearman was not paid $1,441 at the time of termination and, indeed, has not been paid it yet.  This might be thought perhaps not really fair because in a sense the employer is punished by paying twice. Nonetheless, that is what the Award in fact says and I am required to apply it.  There will be an award of $1,441 for that.

24. The third claim is for waiting time for non-payment at the right time with the week’s pay due on 5 April 2015.  As I have earlier indicated, this was paid on 8 April 2015 but since the days in between were Easter and not working days it was plainly within time so this claim must fail.  This money was paid within two working days.

25. The fourth claim is for waiting time for the pay for the week of 17 April.  That is in effect a double dipping of the claim already made for the late payment of the weeks’ notice.  I am not going to make the same payment twice.  That claim is not made out.

26. I have already indicated that I am not making an award for overtime for the reasons I have delivered.  Likewise, it then follows I am not going to make an order for a claim for late payment of overtime and  so that claim fails. I have looked at the waiting time claimed for some $4800 for allegedly late payment of wages on a number of occasions.  Very little was said by either of the parties about this in the proceeding before me.  Mr Shearman’s annexure 1 does show some delays but it also shows that the payment of wages was regular and periodic. 

27. The biggest claim is for four days allegedly paid late on 29 December 2014 but the actual pay day itself in the fortnightly cycle would have been Christmas Day and it is easy, therefore, to see why payment was delayed and in fact was made within two working days of the day in which it should have been made.  The other payments seem to me to be of like character.  There is no pattern of inappropriate delay discernible in the materials. 

28. Furthermore, cl.27.3 under which these matters are claimed does not in fact, in my view, apply to the present case. Clause 27.3 is about people who are physically present waiting for their pay in cash;  that was the way it is described and it refers to people who are made to wait more than a quarter of an hour after the usual time of ceasing work.  It does not seem to me to apply or to be contemplated to apply to bank transfers which is what actually happened in this instance.  So not only do I not think the payments were late but I do not think cl.27.3 would apply in any event. 

29. Accordingly, Mr Shearman succeeds on his claim for one week’s notice and the further claim for one week of waiting time relating to the non payment of that in the total of $2,882 gross. 

30. Mr Shearman has had to wait a long time for this money.  The court’s ordinary rule for the time of payment of money is fourteen days and in my view that is an appropriate amount of time in these circumstances so that sum is to be paid within fourteen days. Orders to this effect will be taken out today.  The reasons, I regret to say, are likely to take over a month because I will be overseas for quite some time.  They will be forwarded to the parties as soon as practicable. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 16 June 2016