Shephard v Hyder

[2013] FCCA 139

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHEPHARD v HYDER [2013] FCCA 139

Catchwords:
INDUSTRIAL LAW – Fair work small claims – whether applicant was employed full time by the respondent for the period claimed – whether applicant entitled to unpaid wages, unpaid penalty rates, unpaid annual leave, unpaid annual leave loading, payment in lieu of notice in accordance with the relevant Modern Award – judgement for the applicant.

Legislation:
Fair Work Act 2009 (Cth), ss.87, 323

Applicant: KATIE SHEPHARD

Respondent: LUCINDA LISA MARIE HYDER

File Number: SYG 758 of 2013

Judgment of: Judge Emmett

Hearing date: 24 April 2013

Date of Last Submission: 24 April 2013

Delivered at: Sydney

Delivered on: 24 April 2013

REPRESENTATION

The Applicant appeared in person with the assistance of Ms Mais Bwadi from the Fair Work Ombudsman

The Respondent appeared in person by telephone

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT SYDNEY

SYG 758 of 2013

KATIE SHEPHARD

Applicant

And

LUCINDA LISA MARIE HYDER

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. By application filed on 11 April 2013 and “Form 5 Small claim under the Fair Work Act 2009 (Cth)” filed on 11 April 2013, the applicant seeks payments from the respondent for unpaid wages, unpaid penalty rates, unpaid annual leave, unpaid leave loading and payment in lieu of notice upon termination.

2. The applicant claims to have been employed by the respondent as a graduate hair dresser between 30 January 2012 and 27 April 2012

3. The respondent appeared by telephone at the hearing today. The respondent opposed the orders sought. The respondent informed the Court that she had no documents to provide in support of her case. The respondent informed the Court that she was content to proceed with the hearing of the matter today and the applicant consented to her participating by telephone.

4. The applicant read her affidavit sworn 24 April 2013.

5. The respondent did not have a copy of the affidavit. The affidavit was read in full for the benefit of the respondent and the respondent was invited to say whatever she wished in response.

6. The substance of the applicant’s evidence is that she was employed by the respondent from 30 January 2012 to 27 April 2012 as a graduate hairdresser. The applicant stated that she was offered the first two weeks as a trial, which she accepted. Thereafter, the respondent told the applicant that she had the job, that she would need to look into a few things and would sign her up as a third year apprentice. A few days later, the applicant stated that the respondent told her that she would pay for the applicant to attend hairdressing courses, and pay her $200.00 per week for the next three months to gain more experience and then would sign her up as a third year apprentice unless she proved to be at that level sooner.

7. The applicant deposed that she worked 38 ordinary hours per week and each Saturday for six hours.

8. The applicant stated that she did not receive any payslips from the respondent at any time during her employment.

9. The applicant deposed that on 27 April 2012, the respondent told the applicant that there was no work for her, so she did not need to come in and that if she wanted to type up a reference letter, the respondent would sign it for her. The applicant deposed that she took a typed reference to the respondent the following day and that the respondent refused to sign the reference unless the applicant changed the reference to say that she worked voluntarily.

10. The applicant deposed that she was underpaid a total of $7,567.78 during the period of her employment with the respondent. The applicant deposed that she worked 406 ordinary hours during the period of employment and was paid $1,800.00 for those hours. The applicant claimed an underpayment in respect of those 406 ordinary hours worked of $4,984.26.

11. The applicant deposed that she worked 72 hours on a Saturday during the period of employment and was paid only $315.79 for that time, leaving an underpayment of $1,226.61.

12. The applicant deposed that she was a full time employee during the period of employment and did not take any annual leave during that time and was not paid anything on termination.

13. The applicant deposed that she accrued 36.77 hours of annual leave during the term of her employment and was entitled to be paid $614.41 upon termination, plus annual leave loading of $107.52.

14. The applicant deposed that she was not provided any notice of her termination and, accordingly, was entitled to one week’s pay in lieu of notice in the amount of $634.98.

15. The respondent stated that the applicant had worked at her salon on a voluntary basis between 30 January 2012 and 26 April 2012. The respondent stated that the business could not support the full time employment of the applicant. However, the respondent paid her $200 per week for petrol, and other unidentified expenses.

16. The respondent said that the applicant did not perform as a hairdresser at her qualified level, was uncooperative, and not up to the respondent’s standard. Further, the respondent said that during the applicant’s employment, money and ‘stuff’ went missing. The respondent also said that she was not aware of ‘government laws’. However, the respondent also said that she had always paid her staff their full entitlements.

17. The respondent acknowledged that she signed a reference written by the applicant in the following terms:

    27 April 2012

    To whom this may concern

    Katie Shephard worked voluntarily for the past 3 months at Lucinderellas. She is capable and dependable in all aspects of hairdressing. I have been consistently impressed by Katie’s attitude towards her work and her performance on the job. Her interpersonal and communication skills have allowed her to develop productive working relationships with both ur clients and our staff.

    Katie possesses solid hands on skills which have enabled her to build up a small clientele. She is also developing the analytical skills to diagnose problems and devise viable solutions. Her ability to remain professional during frenzied periods proves her ability to work well under pressure. She would benefit from a few extended cutting courses and colour courses.

    I recommend her for employment without reservation.

    Lucinda Hyder

18. The respondent acknowledged that what was written in the reference was untrue, except that the applicant had worked voluntarily.

19. In determining which version of the applicant’s employment I accept, I have regard to the reference that the respondent was prepared to sign and which contained information that in her view was untrue. Further, in a letter dated 17 January 2013 from the respondent’s solicitors to the Fair Work Ombudsman, tendered by the applicant and marked Exhibit 2A, the respondent’s solicitor stated, “we are instructed that Miss Hyder has accepted your contravention determination.” The respondent agreed that she had given those instructions to her solicitor. The Contravention Determination was tendered by the applicant and marked Exhibit 3A. The determination was that the applicant had been underpaid $7500.97 (gross).

20. In the circumstances, I prefer the evidence of the applicant where it departs of that of the respondent.

21. The applicant tendered the Hair and Beauty Industry Award 2010 (“the Award”) which was marked Exhibit 1A. I am satisfied that the evidence of the duties engaged in by the applicant were duties that were covered by that Award and that in accordance with the Award, the applicant was employed as a graduate hairdresser.

22. On the evidence before me, I accept that the applicant was employed on a full time basis by the respondent from 30 January 2012 to 27 April 2012 and was entitled to the amounts claimed in accordance with the award. Further, pursuant to s.323 of the Fair Work Act 2009 (Cth) (“the FWA”), the applicant was entitled to be paid for the initial two week trial period.

Unpaid wages

1. The applicant seeks payment for unpaid wages.

2. Pursuant to cl.19 of the Award, the applicant was entitled to be paid at a rate of $16.71 per hour for 406 ordinary hours worked.

3. On the evidence and material before me, I am satisfied that the applicant was entitled to be paid $6,784.26, but was paid during that period $1800. Accordingly I am satisfied that the applicant was underpaid $4984.26 in respect of the 406 ordinary hours worked by the Applicant.

4. Accordingly, the applicant is entitled to $4,984.26 in unpaid wages.

Unpaid penalty rates

1. The applicant seeks payment for unpaid penalty rates for 72 hours worked by her on a Saturday.

2. Pursuant to the Award, I am satisfied that the applicant was to be paid $21.42 per hour for work performed on Saturdays. The applicant was paid $315.79 during the period.

3. On the evidence and material before me, I am satisfied that the applicant was underpaid an amount of $1,226.61 for the 72 hours worked by the applicant on the Saturday.

4. Accordingly, the applicant is entitled to $1,226.61 in unpaid wages.

Unpaid annual leave

1. The applicant seeks payment for unpaid annual leave.

2. Pursuant to s.87(1) of the FWA, the applicant was entitled to annual leave.

3. Clause 29.1 of the Award provides for the entitlement of annual leave pursuant to the National Employment Standard which, in turn, refers to the FWA. Section 87 of the FWA provides that four weeks leave accrue each year and accrue progressively.

4. On the evidence before me, I accept that the applicant had accrued annual leave of 36.77 hours and that she had not taken any annual leave during the period of employment and was not paid for any outstanding annual leave upon termination. I am satisfied that the applicant was entitled to $614.41 for unpaid annual leave upon termination of her employment.

Unpaid annual leave loading

1. The applicant seeks payment for unpaid annual leave loading.

2. Clause 33 of the Award provides for a loading of 17.5% on the applicant’s annual leave, being a total of $107.52.

3. In the circumstances, I accept that the applicant is entitled to annual leave loading at the rate of 17.5% of the annual leave calculated at the award rate.

4. Accordingly, I am satisfied that the applicant is entitled to $107.52 in unpaid annual leave loading for the relevant period.

Payment in lieu of notice

1. The applicant also seeks $634.98 as payment in lieu of notice upon termination.

2. Having accepted that the applicant was employed by the respondent from 30 January 2012 to 26 April 2012, a period of three month, under s.117(3)(a) of the FWA, the respondent was required to give the applicant one week notice of her termination. Based on the evidence and material before me, the respondent failed to do so.

3. Accordingly, the applicant was entitled to one weeks’ notice, being $634.98.

Conclusion

1. In the circumstances, I am satisfied that the applicant is entitled to the unpaid wages, unpaid penalty rates, unpaid annual leave, unpaid leave loading and payment in lieu of notice upon termination payments that she seeks.

2. On the evidence and material before me, I am satisfied that the applicant is entitled to unpaid wages payment of $4,984.26.

3. On the evidence and material before me, I am satisfied that the applicant is entitled to unpaid penalty rates payment of $1,226.61.

4. On the evidence and material before me, I am satisfied that the applicant is entitled to unpaid annual leave payment of $614.41.

5. On the evidence and material before me, I am satisfied that the applicant is entitled to unpaid annual leave loading payment of $107.52.

6. On the evidence and material before me, I am satisfied that the applicant is entitled to unpaid payment in lieu of notice of $634.98.

7. Accordingly, judgment should be entered for the applicant in the total sum of $7,567.78. 

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 24 April 2013