Stanton v Bryan F. McConville and Brenda E. McConville T/A Master Coaching Albury

[2015] FCCA 1864

FEDERAL CIRCUIT COURT OF AUSTRALIA

STANTON v BRYAN F. MCCONVILLE & BRENDA E. MCCONVILLE T/A MASTER COACHING ALBURY [2015] FCCA 1864

Catchwords:
INDUSTRIAL LAW – Whether failure to give work to casual employee amounted to dismissal from employment.

Legislation:

Fair Work Act 2009, ss.12, 340, 341, 342, 539, 545, 546

Crimes Act 1914, s.4AA

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Klein v Metropolitan Fire & Emergency Services Board (2012) 208 FCR 178
RailPro Services Pty Ltd v Flavel [2015] FCA 504

Applicant: JULIA MICHELLE STANTON

Respondent: BRYAN F. MCCONVILLE & BRENDA E. MCCONVILLE T/A MASTER COACHING ALBURY

File Number: SYG 322 of 2014

Judgment of: Judge Cameron

Hearing date: 10 October 2014

Date of Last Submission: 10 October 2014

Delivered at: Sydney

Delivered on: 10 July 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Ms L. Doust

Solicitors for the Respondent: Santone Lawyers

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 322 of 2014

JULIA MICHELLE STANTON

Applicant

And

BRYAN F. MCCONVILLE & BRENDA E. MCCONVILLE T/A MASTER COACHING ALBURY

Respondent

REASONS FOR JUDGMENT

Introduction

1. Bryan and Brenda McConville (“the respondents”) operate Master Coaching Albury and provide personal coaching and tutoring to primary and high school students. In February 2012, the applicant, Ms Stanton, commenced casual employment with the respondents as a receptionist and clerical assistant. She was employed to work during school terms, initially for a period of fifteen hours per week.

2. On 23 October 2013 Mr McConville telephoned Ms Stanton and informed her that her services would not be required for the remainder of the term.  She has not worked for the respondents since then.

Allegation

1. Ms Stanton alleged that the respondents had taken adverse action against her and breached s.340 of the Fair Work Act 2009 (“FW Act”) by terminating her employment because she had exercised a workplace right by indicating that she would be making an enquiry of the Fair Work Ombudsman (“Ombudsman”) regarding underpayment of her wages. She has sought the imposition of pecuniary penalties against the respondents in relation to that breach, payable to her.

Response

1. The respondents deny that they took adverse action against Ms Stanton or that they had taken adverse action against her for any of the reasons set out in s.340(1) of the FW Act. The respondents alleged that on 23 October 2013 they advised Ms Stanton that she would not be required to perform any further shifts as a receptionist/clerical assistant during the fourth school term of 2013. It is alleged that they further advised her that, depending on her availability and their workload in 2014, they might ask her to perform further work for them in 2014.

2. The respondents provided the following reasons for their decision to not require Ms Stanton to perform any further shifts:

   a)Ms Stanton was a casual employee and had never been required to work outside normal term time;

   b)their business generated modest returns;

   c)they experienced a significant decrease in student numbers and revenue in the fourth term of 2013;

   d)Mrs McConville had become available to perform Ms Stanton’s reception and administrative duties in the fourth term of 2013 because reading classes which she ordinarily conducted had ceased; and

   e)they would not receive any income from the business between the end of the fourth term in December 2013 and the start of tutoring in February 2014.

Relevant law

1. Section 340 of the FW Act relevantly provides:

   340 Protection

   (1)A person must not take adverse action against another person:

   (a)     because the other person:

   (i)     has a workplace right; or

   (ii)     has, or has not, exercised a workplace right; or

   (iii)   proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

   (b)to prevent the exercise of a workplace right by the other person.

   …

2. A “workplace right” is relevantly defined in s.341(1) of the FW Act as:

   Meaning of workplace right

   (1)A person has a workplace right if the person:

   (a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

   (b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

   (c)is able to make a complaint or inquiry:

   (i)     to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

   (ii)     if the person is an employee—in relation to his or her employment.

3. Section 342(1) of the FW Act relevantly provides that “adverse action” is taken by an employer against an employee if the employer:

   (a)dismisses the employee; or

   (b)injures the employee in his or her employment; or

   (c)alters the position of the employee to the employee’s prejudice; or

   (d)discriminates between the employee and other employees of the employer.

4. Sections 539 and 546(2) of the FW Act provide that the maximum pecuniary penalty for a contravention of s.340 of the FW Act is 60 penalty units for an individual.

5. Pursuant to s.12 of the FW Act, a penalty unit has the meaning given to it by s.4AA of the Crimes Act 1914. From 1997 until 27 December 2012 a penalty unit was worth $110. Since 28 December 2012 a penalty unit has been worth $170: s.4AA Crimes Act 1914. 

6. Section 545(2)(b) of the FW Act provides that the Court may award compensation for loss suffered because of a contravention of a civil remedy provision.

Evidence

Julia Stanton

Employment of Ms Stanton

1. Ms Stanton deposed that she had been employed as a casual receptionist at Master Coaching Albury from 21 February 2012 until 22 October 2013.  She deposed that although her employment was casual and she did not work during school holidays or on public holidays, she worked regular hours and always maintained her availability as she was the only administrative staff employed by Master Coaching Albury.She deposed that although student numbers at Master Coaching Albury fluctuated, she understood her role within the business to be ongoing.

2. Ms Stanton deposed that Master Coaching Albury had employed more than one receptionist and had previously employed several other people, including the respondents’ children.  She deposed that Mr McConville had told her in February 2012 that the receptionist was vital to their business.

3. Ms Stanton deposed that when first employed, she understood that she would usually be working 15 hours per week during the school term only.  She deposed that early in the fourth term of 2012, she agreed to reduce her hours to 14 hours a week as the business’s coaching hours had reduced.

4. Ms Stanton deposed that on the last day of coaching in the fourth term of 2012, the respondents thanked and complimented her for her efforts during the year.  Her evidence was that until October 2013 Mr and Mrs McConville had been very kind and pleasant to her: they gave her gifts for Christmas and for her birthday and provided a “glowing reference” for her to a real estate agent.  She deposed that they had also displayed great concern for her financial welfare, particularly around the holidays.  

PAYG tax

1. Ms Stanton deposed that in April 2013 she asked Mrs McConville to deduct $100 per week from her pay for tax purposes until the end of term as no tax had been deducted previously.  She deposed that in July 2013, Mrs McConville asked her whether to continue to deduct $100 per week.  As Ms Stanton was unsure how much tax to deduct and had no concept of tax tables, she asked Mrs McConville to deduct $50 per week.

2. Ms Stanton deposed that she told the respondents on 14 October 2013 that she had incurred a tax debt for the previous financial year because they had not taken enough tax out of her pay.  She deposed that Mr McConville denied that it was their fault and said that it must have been one of her other employers “not doing the right thing”.  Ms Stanton deposed that Mrs McConville stated that she did not use tax tables to calculate her pay and thought that she did not want much tax taken out.  Mrs McConville then indicated that she would use the tax tables henceforth and Mr McConville told the applicant that he would keep her informed of what they learnt about her pay and tax.

Student numbers

1. Ms Stanton said that she had been aware that Master Coaching Albury’s student numbers had dropped in term 4 of 2012.  She was also aware that the enrolments for term 4 of 2013 were worse than those for term 4 of 2012.  Ms Stanton deposed that in February 2013 she noted the drop in numbers and, in response to her query, Mr McConville said that they had decided to stop advertising in The Border Mail.  Ms Stanton deposed that during another conversation in about July 2013, Mr McConville told her that they were no longer trying to grow the business because their finances were stable. 

2. Ms Stanton said that on 16 October 2013 Mrs McConville told her that one of her reading groups had finished for that term.  In cross-examination Ms Stanton could not recall Mrs McConville referring in that conversation to a possible review of her hours but did say that she had been aware of the possibility that her hours might be reduced by at least an hour because sessions in term 4 traditionally finished earlier.  She deposed that at a meeting the next day when her pay was discussed it was agreed that she would work 14 hours the following week and 12 hours every week after that.

Pay rate

1. Ms Stanton deposed that on 14 October 2013 Mr McConville advised her that it had come to the respondents’ attention that there had been a change in the relevant award on 1 July 2013.  She deposed that her pay rise was approximately $5.00 per hour, that Mr McConville told her that they would endeavour to pay her what she was owed and that it would be sorted out over the next few weeks.  In her oral evidence Ms Stanton conceded that she had been underpaid by just over $3 an hour, not $5.   Ms Stanton said that she had gained the impression from that conversation that she had not been underpaid prior to 1 July 2013.

2. Ms Stanton deposed that on 15 October 2013 she used the “Pay Check Plus” online tool on the Ombudsman’s website and discovered that she had been underpaid from the start of her employment with the respondents. 

3. Ms Stanton met Mr and Mrs McConville after work on 17 October 2013 and showed them the Pay Check Plus results.  She said that Mr McConville disputed the data input method on the Pay Check Plus tool and said that it could not be accurate, referring to the mathematical theorem “binomial expansion”.  She said that Mrs McConville said that it would cause them trouble if their competitors found out about the pay issue.

4. Ms Stanton deposed that Mr McConville denied that her starting wage had been too low and that it should have increased on 1 July 2012 and 1 July 2013, stating that her letter of engagement overruled the award.  She deposed that Mr McConville refused her request to ask the Ombudsman for advice as they did not want the matter “all through The Border Mail” because people working for the Ombudsman and the Australian Taxation Office (“ATO”) “will sell information for black money”.  She deposed that he also accused her of being sneaky and mistrusting.  What emerges from Ms Stanton’s first affidavit is a sense that the meeting was tense and that the respondents were defensive about their actions and aggressive towards her. 

5. Ms Stanton deposed that when she returned to work on Monday 21 October 2013, Mr and Mrs McConville were less friendly than usual and made no mention of their conversation on 17 October 2013.

6. Ms Stanton deposed that Mr McConville briefly raised with her the issue of her pay on 22 October 2013.  She deposed that he showed her some calculations which he said were his efforts to identify what she was owed and suggested that her accountant might review the figures.  She deposed that it was not made clear to her that he was offering to pay for her accountant’s time and she was not able to discuss the matter with him at that time because students had arrived.

End of work

1. Ms Stanton deposed that later on 22 October 2013, Mrs McConville informed her that as she had no coaching sessions scheduled for the following day, she, Ms Stanton, was not required to come to work but should come in the following Thursday as usual.  Ms Stanton deposed that Mrs McConville made no mention of her pay and, as she had not had a chance to speak to Mr McConville about his calculations, she left a note which thanked them for their efforts but indicated that she was still very unhappy by the way they had reacted on 17 October 2013 and preferred to have her remuneration overseen by an independent third party.

2. Ms Stanton deposed that on 23 October 2013, Mr McConville telephoned her and said that they could not justify keeping her on as student numbers were down and that there would not be any work for her for the rest of the year although there was a possibility that she could be required again in term 1 of 2014.  She deposed that she asked Mr McConville whether he had seen her note and that he replied that he had, that she could contact “Fair Work” if she wanted to and that he would be in touch to arrange a meeting about her back pay.  He stated that he and Mrs McConville were happy to have a third party sit in on any meetings regarding her back pay.

3. Ms Stanton said that she had been unable to meet with Mr and Mrs McConville as suggested by Mr McConville in a text message on 4 November 2013 because she had been busy looking for work.  She also said that after the 17 October 2013 meeting she had not felt comfortable with them handling her pay issue and was wary of having further meetings with them.  She also felt threatened.

4. Ms Stanton deposed that the respondents later sent her a PAYG Payment Summary dated 9 December 2013 for the 2013-2014 financial year. 

Bryan McConville

1. Mr McConville deposed that he had owned and operated the Albury franchise of Master Coaching with his wife Brenda since February 1996. 

Master Coaching Albury

1. Mr McConville deposed that he coached mathematics, his wife coached reading and they engaged other teachers to tutor mathematics, reading, physics, chemistry, English, geography, economics and biology, depending on the demand for those subjects.  He deposed that Master Coaching Albury had never engaged any full-time employees for the business and that their teachers usually worked between one and five hours a week.

2. Mr McConville deposed that the business’s principal activity was group tuition to primary and high school students but individual lessons were offered from time to time depending on the student’s needs.  He deposed that classes generally ran Monday to Thursday during school terms with additional Friday evening and Saturday morning classes offered to year 12 students during term 3 and the beginning of term 4.

3. Mr McConville deposed that the revenue generated by the business varied from year to year and from term to term.

4. Mr McConville deposed that since opening the business, he had always delivered substantially more hours of tutoring in a week than his wife, usually double or more.  He deposed that Mrs McConville had responsibility for the administrative work of the business such as banking, preparing reports and accounts and the like. 

Employment of Ms Stanton

1. Mr McConville deposed that they had employed a receptionist for about twelve to eighteen months in the late 1990s or early 2000s at a time when the business was growing rapidly but had phased that role out as his and Mrs McConville’s ability to manage the business improved and more teachers were employed.

2. Mr McConville said they had also used some of their former students to mind the front desk, open the door and sometimes accept fees, predominantly in 2011 when they were busy.  It was in that period that they started considering engaging someone on a more permanent basis.  He also said that from time to time in February 2012 a family friend had minded the front desk but had not been paid for doing so.  Mr McConville said that a receptionist had not been a necessary part of their business because he and his wife had been able to handle the business without one, even when they were both coaching.   

3. Mr McConville deposed that he and his wife decided to employ a receptionist in early 2012 because he had some health problems and knew that government subsidies were available for the employment of young people.  Mr McConville deposed that Ms Stanton was initially offered a role at 15 hours a week because that was the eligibility threshold for the subsidy.  He deposed that had it not been for the subsidy, he probably would have offered Ms Stanton 10 hours per week.  He deposed that they employed Ms Stanton on a casual basis as they knew that they could not guarantee work every week and would have no need for any assistance outside term. Mr McConville deposed that Ms Stanton only worked during the school terms and was not required, and did not work, during school holidays.  He deposed that her hours were reduced to 14 hours per week for the fourth term in 2012.  

4. Mr McConville deposed that he and Mrs McConville determined Ms Stanton’s relevant rates of pay.  He deposed that a friend who had worked at the Australian Workers’ Union identified the Clerical and Administrative Employees (State) Award as the applicable award and so they employed Ms Stanton as a Grade 2 employee with a starting pay of $19.07 per hour.  He deposed that he and Mrs McConville had also decided that they would move Ms Stanton to the Grade 3 rate if she was progressing satisfactorily after four weeks.

5. Mr McConville deposed that Ms Stanton commenced her employment on 21 February 2012 and was given a formal letter of offer dated 22 February 2012.  A copy was annexed to his affidavit.  Mr McConville deposed that Ms Stanton signed the letter and returned it to them on about 27 February 2012.  It relevantly stated:

   ….

   Position:

   Your employment will be on a casual basis as required.  The duties of this role are contained in the NSW Clerical Award and attached position description.  On each occasion that you work you will be required to perform these duties and any others that we may assign to you, having regard to your skills, training and experience.

   Terms and Conditions of Employment:

   Unless more generous provisions are provided in this letter, the terms and conditions of your employment will be those set out in the NSW Clerical and Administrative Employment Award [AN120664] 2008 and all applicable legislation. This includes, but is not limited to, the National Employment Standards in the Fair Work Act 2009.

   The additional terms and conditions set out in the attached Schedule will also apply to your employment.

   Remuneration / Hours of Work:

   A. Hours of Work:      Monday             3.00pm – 6.30pm
      Tuesday        3.00pm – 7.00pm
      Wednesday    3.00pm – 7.00pm

   Thursday      3.00pm – 6.30pm

   B. Rate of pay:

   For the first four (4) weeks your rate of pay will be $19.07 per hour Grade 2 Clerical Assistant.  After the 4 week training period your rate of pay will be $20.14 per hour Grade 3 Clerical Assistant.  These rates include the applicable casual loading.  …

6. Mr McConville deposed that Ms Stanton was initially paid approximately $286.04 per week.  He deposed that Ms Stanton’s wage was increased to $20.14 per hour or $302.10 per week after four weeks employment as they were satisfied with her performance. 

Student numbers

1. Mr McConville deposed that in term 3 2013, the business was providing services to fewer students than at the same point in the previous year.  Mr McConville deposed that this equated to a revenue decrease of more than the value of Ms Stanton’s wages for that term.  He deposed that at the end of term 3, it became apparent to him that the business would lose a significant number of their students in term 4 and approximately a quarter of the business’s income. Mr McConville said that they had advertised in The Border Mail and that that practice had continued without change in 2012 and 2013.  He denied having spoken to Ms Stanton about the business’s advertising strategy or about his and his wife’s finances.

1. Mr McConville deposed that he and his wife had a conversation about the situation over the school holidays between terms 3 and 4 and agreed that they would have to make some cuts to deal with the reduced revenue.  He deposed that as Mrs McConville’s reading groups would soon be ending, she would be available to perform administrative and clerical duties.  He deposed that they also considered that they were approaching the long summer holidays when no revenue would be generated.  They discussed whether they should engage Ms Stanton for fewer hours during the course of the term but decided that they would wait to see the state of enrolments during the first couple of weeks of term 4 before making a decision.

2. Mr McConville deposed that business was noticeably slow in the first week of term 4 and that there had not been any improvement in the first weeks of the term which might have meant that they could have afforded to keep Ms Stanton on throughout the term. 

Underpayment of wages and tax

1. Mr McConville deposed that he and his wife had a meeting with Ms Stanton on 14 October 2013 at which he informed Ms Stanton that they believed that she had been underpaid for some time.  He advised her that they were investigating the issue and would keep her fully informed.  He deposed that at that stage they did not make any firm arrangements about revisiting the issue.  He deposed that neither he nor Mrs McConville raised with Ms Stanton the issue of decreased enrolments during that meeting.

2. Mr McConville deposed that at Ms Stanton’s request he and Mrs McConville met with her for approximately half an hour on 17 October 2013.  He deposed that Ms Stanton showed them the Pay Check Plus calculator from a government website, that he found the website to be confusing and that they spent some time going through it to understand how it operated.  He deposed that at the end of the meeting, he and Mrs McConville agreed to investigate Ms Stanton’s rates of pay dating back to the commencement of her employment and advised her that they would keep her fully informed as to what they discovered.  Mr McConville deposed that the tone of the meeting was cordial and denied that he made any mention of The Border Mail or Master Coaching Albury’s competitors.  He denied that he expressed hostility to or resentment at the idea of government agencies becoming involved and denied suggesting that the letter of engagement overruled the terms of the award.

3. Mr McConville deposed that the end of the second week of term 4, he conducted further internet research and located some further pay scale summaries from the Ombudsman.  Based on the material he found, he concluded that the respondents had underpaid Ms Stanton from the commencement of her employment in February 2012 and that her correct pay rate at the commencement had been $22.43.  He deposed that he was unable to go through this material with Ms Stanton on 21 October 2013 as he had had a heavier teaching load than usual but denied that he had been unfriendly to her on that day.

4. Mr McConville deposed that he and his wife met with Ms Stanton on 22 October 2014.  He deposed that he showed her a spreadsheet which contained his calculations and told Ms Stanton that they would pay for her to have her accountant go through the figures to check that they were correct.  He deposed that a few minutes into the meeting the doorbell rang and Ms Stanton left the room to let students in.  She did not return to the meeting.

5. Mr McConville deposed that he telephoned the Ombudsman on 23 October 2013 to ascertain the correct rate of pay for Ms Stanton.  He deposed that he received advice to the effect that he should try to sort out the issue at a “local level”, which he understood to mean that he should try to resolve the matter with Ms Stanton herself.

6. Mr McConville deposed that in November 2013, the respondents, with the assistance of their accountant, undertook a final calculation of the amounts owing to Ms Stanton.  He deposed that they were required to remit a considerable portion of those moneys to the ATO, which they did, and also made a net payment to Ms Stanton that month.

7. Mr McConville said that after making enquiries, he was advised by the ATO and his accountant that he had to issue Ms Stanton a PAYG summary in relation to her back pay and so he had provided her with her 2013-2014 PAYG summary shortly after she stopped working at Master Coaching Albury.  He said that he was told by both the ATO and his accountant that an amended PAYG summary could be issued to Ms Stanton at the end of the financial year if she returned to work the following year.

End of work

1. Mr McConville deposed that on 22 October 2013, after their earlier meeting with Ms Stanton concerning pay rates, Mrs McConville told him that she did not have any reading groups scheduled for the next day and they agreed that they would not need Ms Stanton to work the next day.  He deposed that he made that decision due to the diminishing earnings for the fourth term and because it made more sense for Mrs McConville to carry out the reception and other clerical duties as she was available.

2. Mr McConville deposed that the next day, 23 October 2013, he and Mrs McConville discussed the issue of Ms Stanton’s hours and agreed that they did not need her for the balance of the term.  He deposed that given the state of the business, they had to save money where they could and, as Mrs McConville’s capacity and availability had increased, the most obvious savings were Ms Stanton’s wages.

3. Mr McConville denied that Ms Stanton’s proposal to approach the Ombudsman had played any role in the decision to tell her that she was not required for the rest of the term.  He said that he had not had a problem contacting the Ombudsman and at Ms Stanton’s suggestion had in fact done so to see how they could be involved in resolving the pay issue.  He denied that he had not wanted Ms Stanton to approach the Ombudsman independently. 

4. Mr McConville deposed that he telephoned Ms Stanton on 23 October 2013 and informed her that there was no work for her for the rest of the term as student numbers were down and Mrs McConville’s reading groups had finished.  He advised her several times that they would be happy to have her back the following term if she was available and if the student numbers justified it.  He deposed to having said:

   This is just short-term, we are happy with your work and would be happy to have you back next year.  We are very sorry we just don’t have the numbers to justify keeping you on this term.

   He deposed that he advised her that they were still looking into the issue of her back pay and would let her know what they found out and repeated his offer to pay the costs of having an accountant check their calculations.  He deposed that Ms Stanton made no mention of Fair Work.

5. Mr McConville deposed that enrolments were again low at the start of term 1, 2014.  In his view, the numbers were not sufficient to justify offering further work to Ms Stanton and he and Mrs McConville staggered the start times of their classes so one or other of them was available to admit students as they arrived.

Brenda McConville

1. Mrs McConville operates Master Coaching Albury in partnership with her husband and coaches literacy-related programs.  She deposed that the business operates around the New South Wales public school terms and is open Mondays to Thursdays, tutoring from 3:45pm. 

Employment of Ms Stanton

1. Mrs McConville deposed that she and her husband decided to employ a casual receptionist at the beginning of term 1, 2012.  She deposed that previously students would wait in the waiting room and either she or Mr McConville would have to excuse themselves from classes to attend to them. 

2. Mrs McConville deposed that they employed Ms Stanton through an employment agency and were required to offer her a minimum of 15 hours’ work per week.  She deposed that while they did not need an employee for that many hours, they decided to retain a receptionist for 15 hours per week in order to access a government subsidy of $1,500 (after 13 weeks) and $2,000 (after 26 weeks).  She deposed that Ms Stanton’s contract was drafted by a friend who was a retired union official who also advised them about the relevant award and hourly rate which was incorporated into the letter of engagement.

3. Mrs McConville deposed that Ms Stanton was required to carry out general administrative tasks including receptionist duties, greeting students, updating the student roll, cleaning desks, general office cleaning, sharpening pencils, photocopying and wiping down white boards.

4. Mrs McConville deposed that around the end of the second week of term 4 in 2012 she informed Ms Stanton that the respondents might need to reduce her work hours as their year 12 students were leaving.  She deposed that Ms Stanton’s hours were subsequently reduced for the remainder of that term by one hour per week.  She deposed that Ms Stanton’s hours returned to 15 hours per week at the commencement of 2013.

Student numbers

1. Mrs McConville deposed that it became apparent that by mid-term 4 2013 she would have free time on Tuesdays and Wednesdays as three of her reading groups were finishing and HSC students would also be finishing.  She deposed that at the end of term 3, she and her husband had a number of conversations about the lower student numbers and also discussed whether there would be enough work for Ms Stanton until the end of the year.  Mrs McConville deposed that in deciding that they did not require Ms Stanton for the entirety of term 4, they had also had regard to the long summer holidays when no income would be generated.

2. Mrs McConville deposed that Ms Stanton would have been aware of the situation regarding the reading groups and the enrolment numbers as she had entered the names of the students enrolled at the beginning of term 4.  Mrs McConville also deposed that on or about 16 October 2013, she told Ms Stanton that another reading group had finished and that they might have to look at her hours.

3. Mrs McConville said that there had been no significant change in Master Coaching Albury’s advertising between 2012 and 2013.  She said that they had advertised in The Border Mail in January, February, April and May 2013.  Master Coaching Albury’s invoices from The Border Mail for January, February, April and May 2013 and August 2012 were admitted as exhibit A and reflected that evidence.  Mrs McConville said that although they received word-of-mouth enquiries, they did not rely on them as an advertising strategy. 

4. Mrs McConville said that she and her husband had not discussed their financial affairs with Ms Stanton.  She also said that they still wanted to grow the business and she had not mentioned retirement to Ms Stanton.

Underpayment of wages and tax

1. Mrs McConville deposed that she and her husband heard about national wage increases on the news in September 2013 and decided that they should check whether Ms Stanton was due for a pay increase.  She deposed that she found the award which they had previously used to calculate Ms Stanton’s rates of pay and located a further document, “Fair Work Ombudsman Pay and Conditions Guide, Clerks – Private Sector Award 2010 and Clerical and Administrative Employees (State) Award [AN120664]”.  She deposed that she understood the document to indicate that Ms Stanton should have been paid at least $23.93 per hour (inclusive of casual loading) but was uncertain if the rate included a pay increase or whether Ms Stanton should be classified under the pre-modern award classification.  Despite her confusion, she decided to pay Ms Stanton at the rate of $23.93 per hour for the hours she had worked that week.

2. Mrs McConville deposed that she and her husband had a conversation with Ms Stanton on 14 October 2013 when Mr McConville informed Ms Stanton that they might have been underpaying her, that they needed to do some further investigations and that they would get back to her.  She deposed that Ms Stanton raised her tax issue.

3. Mrs McConville deposed that she and her husband met with Ms Stanton on 17 October 2013 who showed them the “Paycheck Plus” website.  She deposed that she was keen for Ms Stanton to show her the website.  She deposed that towards the end of the meeting she and Ms Stanton had a conversation to the following effect:

   Brenda:With the reduced numbers and fewer reading groups we may have to, as we did in term 4 2012 when we reduce your hours by 1 hour per week, look at reducing your hours to maybe 12 hours per week this term.

   Julia:I wouldn’t be able to do that.  That would not suit me.

   She deposed that Mr McConville finished the meeting by advising Ms Stanton that they would continue to investigate the matter of her back pay and would get back to her early the following week.  Mrs McConville said that during the 17 October 2013 meeting, no reference was made to their business competitors, The Border Mail or to the ATO and Ombudsman’s office selling information.

4. Mrs McConville deposed that on 22 October 2013, she and Mr McConville again met with Ms Stanton in order to show her the calculations on which Mr McConville had been working that weekend.  She deposed that Mr McConville advised Ms Stanton that he had worked out exactly what she had been paid and how much tax had been deducted.  He stated that he wanted to include Ms Stanton’s accountant or any other representative in their discussions, at the respondents’ expense.  Mrs McConville deposed that Ms Stanton looked at the document, did not say anything and left the room shortly thereafter to attend to a student.  Ms Stanton did not return to the room.

5. Mrs McConville deposed that while she was not a payroll expert she was responsible for preparing wages and paying tax.  She said that although she had been responsible for Master Coaching Albury’s payroll since it started operating, she was not an expert at it because they only employed a very small number of employees.Mrs McConville deposed that at the beginning of her employment Ms Stanton had asked her to refrain from deducting any tax from her pay and said that she would sort it out later with her tax return.  Mrs McConville deposed that she agreed to Ms Stanton’s request because she did not understand that the respondents had an obligation to take tax out of her pay.  She deposed that Ms Stanton approached her in April 2013 and requested that she deduct $100 per week for tax as she had incurred a tax debt.  She deposed that at the beginning of term 3 in 2013, Ms Stanton requested that she deduct $50 per week for tax as $100 a week had been too much.

6. Mrs McConville deposed that on 23 October 2013 she had been present when Mr McConville had a lengthy telephone conversation with the Ombudsman’s office.  She deposed that after the telephone call, Mr McConville told her that they needed to “work it out with the employee at a local level”.

7. Mrs McConville deposed that Mr McConville liaised with Ms Stanton and the Ombudsman after 23 October 2013.  She deposed that it was later confirmed by the Ombudsman that their figures were accurate and ultimately, given the underpayment of tax, it was determined that only $63.93 was owing to Ms Stanton.  She deposed that Mr McConville sent a letter to that effect to Ms Stanton on 5 November 2013 enclosing a cheque for that amount.

End of work

1. Mrs McConville deposed that later in the afternoon of 22 October 2013, she advised Ms Stanton that she did not need to come in the next day as she, Mrs McConville, had no tutoring or coaching sessions scheduled.  She deposed that Ms Stanton asked her whether that would be ongoing and she responded that she and Mr McConville would be reviewing their numbers and would let her know the following day.  She denied having said to Ms Stanton on 22 October 2013 that she would see her on Thursday as she had had plans to travel to Sydney for a funeral and would not have been at Master Coaching Albury that Thursday.  Mrs McConville deposed that at 6.30pm that evening she spoke again to Ms Stanton who told her that she had left her a note.  Mrs McConville deposed that she read the note after she had finished her class that night and did not act on it as she thought that it reflected the offer that had been put to Ms Stanton earlier that day.

2. Mrs McConville deposed that later that night she and Mr McConville agreed that, given Mrs McConville’s availability, they could not justify keeping Ms Stanton on until the end of the year.  It was also decided that as they were confused as to which industrial award applied to Ms Stanton, Mr McConville would contact the Ombudsman the next day to try to resolve the issue of her pay rate.

3. Mrs McConville deposed that on 23 October 2013 Mr McConville telephoned Ms Stanton in her presence and she heard him say:

   With the numbers and reading groups ending, we can’t justify having you on until the end of the term. We’d be more than happy to have you back next year at the beginning of 2014, so long as reading groups and numbers pick up. …

   Don’t forget about the offer of the accountant, who we can bring in at our own expense to look at the [calculations].

4. Mrs McConville deposed that the timing of her husband and her becoming aware of the underpayment of Ms Stanton’s wages and their recognition that she was not required to work until the end of term 4, 2013 was an unfortunate coincidence and not apparent to her at that time.  She deposed that the respondents had been upfront in informing Ms Stanton about the downturn in work for some weeks.

Consideration

1. Ms Stanton’s proceeding is based on her allegation that she was dismissed from her employment with the respondents.  Although in submissions the respondents did canvass the availability to Ms Stanton of allegations of other sorts of adverse action which might have been more appropriate to her circumstances, the claim pressed by Ms Stanton was limited to adverse action in the form of dismissal.

2. It is common ground that on 23 October 2013 when Mr McConville told Ms Stanton that there would be no more work for her that year, he also left open the possibility that the respondents would offer her work in 2014.  Whether or not one accepts the genuineness of Mr McConville’s statement, it is apparent that he did not, in terms, dismiss Ms Stanton. 

3. Ms Stanton’s alleged dismissal seems to be a case of constructive dismissal comprised of a repudiatory breach of her contract of employment, in the form of a failure to provide her with work after 23 October, which she accepted by commencing this action or perhaps by her making her antecedent complaint to the Fair Work Commission.  Whichever might be the case, to make out such a claim Ms Stanton had to prove that the respondents were obliged by her contract of employment to give her work and that not giving her work was a breach of that obligation. 

4. Ms Stanton’s contract of employment expressly excluded any obligation on the respondents to give her work, its second paragraph saying:

   Your employment will be on a casual basis as required.

   Consequently, the fact that the respondents decided to not give Ms Stanton work in the fourth term of 2013 after 23 October did not, without more, amount to a repudiatory breach of the contract of employment which could ground a claim of constructive dismissal.  Further, because it was not demonstrated that the respondents had actually resolved to never give Ms Stanton any work again, I do not find that the failure to give her work in the fourth term of 2013 after 23 October bespoke an unspoken decision to give her no work at all in the future and so also a repudiation of her contract.  I do not find that the issue of a PAYG statement to Ms Stanton in December 2013 bespoke a decision to dismiss her.  I accept that it was considered necessary to record the regularization of Ms Stanton’s PAYG tax situation.

5. For these reasons, I find that Ms Stanton has not proved that the respondents took adverse action against her in the form of dismissal and so her application must be dismissed.  However, should I be wrong in that conclusion I will address other issues presented by this case.

1. Generally, I accept that the witnesses were endeavouring to give an accurate account of events and, despite the differences in the accounts of the parties, they did agree on some matters.  The first of these was that on 14 October 2013 the respondents raised with Ms Stanton their concern that she had not been paid correctly.  The second was that on 16 October 2013 Mrs McConville said to Ms Stanton that (at least) one reading group had finished for the term.  Thirdly, the parties agreed that they met on 17 October 2013 when Ms Stanton showed the respondents the Ombudsman’s Pay Check Plus tool, that Mr McConville’s interaction with it was problematic and that on 22 October 2013 Mr McConville showed Ms Stanton his calculations of her wage entitlements.  The parties further agreed that on 23 October 2013 Mr McConville rang Ms Stanton to tell her that she would not be required for the rest of the term although there might be work for her in 2014 and that the respondents would not object if she wanted a third person to sit in on their discussions about her pay or if she wanted to approach the Ombudsman.

2. The first major point of divergence between the parties’ accounts concerned the meeting on 17 October 2013.  Ms Stanton’s version suggested that the meeting had been unpleasant because the respondents had wanted to control how the underpayments issue was dealt with and had also wanted to prevent the involvement of external agencies, principally to avoid the possibility of bad publicity.  The respondents denied the unpleasantness and hostility Ms Stanton asserted.

3. Ms Stanton’s note of 22 October 2013 said:

   Dear Bryan & Brenda,

   Thank you for researching the information … provided you with on Thursday.  While I appreciate that you appear to have been keen to … ome [sic] effort in the last day or two, I remain very unhappy about your reaction on Thursday.  Primarily for this reason I would like for my remuneration to be overseen by an independant [sic] third party.  (omissions in copy annexed to affidavit)

   Mr McConville made no mention of that note in his evidence and all Mrs McConville said in her affidavit was:

   I did not have time to look at the note prepared by Julia (which is Annexure A to her affidavit sworn 31 March 2014), until I‘d finished teaching my year 10 student. I later read the note and did not act upon it, because I believe it reflected the offer we had put to her that day …

   In response to questions I put to her, Mrs McConville said that she and her husband had been perplexed by Ms Stanton’s reference to a reaction by them. 

4. Ms Stanton’s letter tends to confirm her description of the tone of the conversation on 17 October 2013 and the respondents’ passive response to her letter, both at the time and in this proceeding, suggests to me that they accepted that it did accurately reflect something of the conversation.  Even so, Ms Stanton’s account appears to me to be exaggerated and I consider it most unlikely that the respondents would have been concerned that information would be improperly disclosed for money by the Ombudsman’s office or by the ATO or that they would have expressed such concerns to Ms Stanton.  Given the letter of engagement’s express reference to the State award, I also think it unlikely that Mr McConville said to Ms Stanton that the letter trumped the award.

5. I accept the respondents’ evidence concerning the historical operation of their business and the downturn of business and revenue in the fourth term of 2013.  Given that Mrs McConville was freer to attend to administrative tasks and that the respondents had operated for many years without a salaried receptionist, I accept that offering Ms Stanton work between October 2013 and the end of that academic year was uneconomical and was seen by the respondents as such.  In this regard, I note that the business did not return a large income to the respondents and so I accept that the need to economise in the face of diminished revenue would have been apparent to them and the principal reason for their decision to give Ms Stanton no more work in 2013.

6. Nevertheless, the question which must be resolved is, notwithstanding that finance was a dominant consideration underlying the decision to offer her no work in 2013 after 23 October, whether Ms Stanton’s foreshadowed approach to the Ombudsman was also a substantial and operative reason for that decision to offer her no more work in 2013: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; Klein v Metropolitan Fire & Emergency Services Board (2012) 208 FCR 178 at 205 [100]; RailPro Services Pty Ltd v Flavel [2015] FCA 504 at [86]. The timing of events does raise suspicions and it is not surprising that Ms Stanton thought them linked. However, I am not persuaded that they were linked or that her wish to involve an independent third party in her pay issues motivated the respondents to give her no more work that year. As it was the respondents who first identified the underpayments and brought them to Ms Stanton’s attention and noting that, as I accept, they made their own approaches to the Ombudsman’s office and to the ATO, I would not conclude that any stated intention of Ms Stanton to do the same would have played a role in her receiving no work in 2013 after 23 October.

7. I also note that no suggestion was made that Ms Stanton had been replaced, a matter which tends to emphasize the significance financial considerations had in the decision to give her no more work in 2013.

8. In light of the kindnesses the respondents had shown Ms Stanton earlier which Ms Stanton acknowledged in her evidence, and her youth, I can appreciate that on 17 October 2013 they were probably offended by her unwillingness to accept their leadership on the question of how much pay she was owed, although they would not have been entitled to expect her to accept their control of the issue.  I also expect that their responses may have led Ms Stanton to be more protective of her position and less trusting of them and to have misinterpreted what they said.  Giving Ms Stanton the benefit of the doubt, I conclude that she misunderstood and has misreported what the respondents said in their meeting with her on 17 October 2013. 

9. I have also had regard to Ms Stanton’s PAYG tax underpayments but have concluded that they had no particular significance to the matters in issue in this proceeding as Ms Stanton did not allege a breach of s.340 in relation to them.

10. For the above reasons, I conclude that Ms Stanton’s stated desire to involve the Ombudsman in her pay discussions was not a substantive and operative reason motivating the decision to give her no work in 2013 after 23 October. 

Conclusion

1. As Ms Stanton has not proved that she was dismissed from her employment with the respondents as she alleged, the application will be dismissed.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 10 July 2015