Stojkoski v Strategic Business Consulting Pty Ltd

[2022] FedCFamC2G 199

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Stojkoski v Strategic Business Consulting Pty Ltd [2022] FedCFamC2G 199   

File number(s):	DNG 5 of 2021
Judgment of:	JUDGE YOUNG
Date of judgment:	3 March 2022
Catchwords:	INDUSTRIAL LAW – FAIR WORK -  claim for unpaid leave - claim for expenses - where there was a discrepancy in leave entitlements - where there is no evidence of leave entitlement reconciliation - where arrangements were made outside of usual employment contract - the applicant succeeds on grounds of unpaid recreational leave and unpaid parental leave - the applicant fails on ground of unpaid sick leave - the applicant fails on ground of unpaid expenses
Legislation:	Fair Work Act 2009 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	20
Date of hearing:	3 March 2022
Place:	Darwin
The Applicant:	Appearing on his own behalf
Counsel for the Applicant:	Ms Hooper

ORDERS

DNG 4 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

STEVEN STOJKOSKI

Applicant

AND:

STRATEGIC BUSINESS CONSULTING PTY LTD

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	3 MARCH 2022

THE COURT ORDERS THAT:

1.The respondent is to pay the applicant $9,183.28 (which represents a gross payment of $13,229.95 less tax of $4,046.67 to be withheld by the respondent) within 7 days of the date of this order.

2.The respondent is to contribute to the applicant’s nominated super fund the sum of $1,256.85 within 7 days of the date of the order.

3.The applicant is to provide his bank account details and superannuation fund details forthwith.

4.The respondent is to provide the applicant with a taxation summary by the end of the financial year 2021/2022.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG

1. This is a small claim under the Fair Work Act 2009 (Cth). It relates to five subject headings as follows:

   (1)The applicant claims 10.35 days for recreation leave that was not paid to him. 

   (2)The applicant claims 10 days for parental leave that was granted in 2013, but on the termination of his employment in 2019, some six years later, the employer purported to dock him, asserting that the leave was unapproved. 

   (3)The applicant claims 16 days personal leave, where the applicant says that he was ill during a period when he says he was on recreation leave at the end of his employment.

   (4)The applicant claims 2.88 days recreation leave, which he says accrued after he took recreation leave from 17 May 2019 through to his last day of employment when his recreation leave expired on about 12 July 2019, plus two public holidays that accrued during that period. 

   (5)The applicant claims expenses for fuel, travelling between his home in Lyons, a Darwin suburb, and offices in the Darwin CBD, where he was directed to go by his employer to provide contractual services to the Northern Territory government in the nature of IT services. 

2. In relation to the first claim of 10.35 days recreation leave, the applicant says that in early 2019 he looked at his leave entitlement on the employer’s electronic leave system. At that time, it was said that the electronic leave recording system showed that the applicant had 50 days recreation leave accrued.  When the applicant’s employment ceased, according to the employer, on 17 May 2019, he began his final period of recreation leave. According to the applicant, he was notified that there had been a manual reconciliation of his leave entitlements by Mr Cairns. Mr Cairns was apparently general counsel of the respondent at the time.

3. The manual reconciliation is to be understood in the context that at the beginning of the applicant’s employment with the respondent in about 2003 there was a manual leave system and in 2007 an electronic recording system was adopted. 

4. The applicant’s leave entitlement that appeared as at early 2019 was 50 days which reflected the workings of the electronic leave system between 2007 and 2019.  In about May 2019, the manual reconciliation was undertaken.  There is some evidence from Mr Stevens that he understood the reconciliation was undertaken by Mr Cairns. I infer from what Mr Stevens says in his affidavit that the reconciliation included an examination of the leave recording system in operation prior to the adoption of the electronic system in 2007.  In other words, there was an inquiry about leave records running back more than 12 years, a period in which, until then, no problem had been noted. 

5. That situation was calculated to raise the suspicions of the applicant, and it has.  That does not mean that there was not a reconciliation done, or that any reconciliation done was not genuine.  Though, it is clear also from the materials, particularly the affidavit of Mr Stevens, that considerable ill will was directed towards the applicant at the end of his employment.  There are very critical remarks made about him which appear irrelevant to any question I have to decide.  However, while Mr Cairns was said to have undertaken the reconciliation, there is no evidence from Mr Cairns about what he did. 

6. I am told by counsel appearing for the respondent that Mr Cairns is in dispute with the employer, and it would not be reasonable to expect him to give evidence.  There is no evidence about that but I was told so from the bar table.  More tellingly, there is no evidence of the manual reconciliation, what inquiry was made or how the calculations were made.  In other words, there is no evidence of where the original mistake was, if there was one. 

7. In those circumstances, when there is a failure to call evidence about something quite crucial, that is, an alleged error in the employer’s records, I am not satisfied that I should accept that the leave records were discovered to be inaccurate after some 12 years. I think that stretches credibility when I consider the failure to produce any workings in evidence or any evidence of how the reconciliation was undertaken. That failure is unexplained and leads me to conclude that any evidence of that would not assist the respondent which encourages me in accepting something which is not challenged, that is, that prior to this reconciliation there was some 50 days of leave appearing in the record systems, and that a 10-day reduction is unexplained.  I find for the applicant on that point. 

8. The second period is for 10 days straight, which is said to relate to the applicant in 2013 taking two periods of parental leave of 10 days each.  The respondent says its policy at the time was for 10 days parental leave. 

9. The applicant relies on an email chain with his supervisor where he set out that he wished to take two periods of 10 days leave. The first period was in January 2013 and the second was in December 2014. The applicant notified his supervisor of his proposal.  The email shows that the supervisor agreed to that proposal.  A person from the payroll section in 2014, Ms Tonna, queried the applicant about that proposal in a reasonably neutral way. She did not suggest that he was not entitled to that leave, but she asked him what arrangements he had made with his supervisor. The applicant explained what arrangements he had made quite frankly.  Ms Tonna did not revert to the applicant and from 2013 to 2019 nothing more was said about the applicant taking parental leave. 

10. The question of parental leave was only raised again after he had notified the employer that he was resigning and, apparently, as part of the inquiry process that I have described above as the “manual reconciliation”.  It was not put to the applicant in cross-examination that he was aware that the policy of the employer at the time was 10 days leave and no more, and that he deliberately flouted that policy.  I am not aware that the actual policy is in evidence and the respondent has not provided a written policy in relation to paternity leave. 

11. The contract of employment that the applicant signed in 2002 does have a clause referring to maternity leave for employees who are pregnant, where 10 days was allowed, but that hardly appears relevant to Mr Stojkoski.  In any event, it appears to me that if an employee seeks approval from a supervisor and indeed a senior employee for what amounts to a variation in contractual terms, and that is agreed to, then that is simply a variation of contractual terms.

12. The fact that Mr Stojkoski was frank about what arrangements he made when asked and nothing more was heard for six years indicates to me that whether or not the contract had been formally varied, the employer had acquiesced in the situation.  The respondent was not justified in docking his recreation leave entitlement as a form of compensation six years later.  The applicant will succeed on the second ground as well.

13. In relation to the period of employment, the documents are perhaps ambiguous but it is clear that while the applicant’s last day of work was 17 May 2019, he continued to be paid on a fortnightly basis until about 12 July 2019. That is, there were fortnightly payment made for approximately two more months which constituted the working out of the applicant’s recreation leave. An employer’s responsibility under s 90 of the Fair Work Act 2009 (Cth) is to pay any accrued leave on the termination of cessation of an employee’s contract of employment or employment. The section does not say when or how the untaken paid annual leave is to be paid, but the employer, according to the s 90:

    Must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.

14. Usually, that would be paid as a lump sum and there would be no argument about whether the employment continued.  The applicant said he had specifically agreed with his supervisor that this was to be the arrangement.  He said that that was the arrangement because the employer wanted him to stay on somewhat longer.  The evidence is that the applicant’s employment was extended on an ad hoc basis throughout 2019 which sits ill in my view with the evidence of Mr Stevens that the applicant’s performance as an employee was so unsatisfactory that he was a liability to the company.  Those things do not sit well together. 

15. The evidence on this subject is, frankly, unsatisfactory. I think I should give weight to the simple fact that periodic payment is consistent with continuing employment considered for approximately two months, so I find that the applicant continued to be employed until the expiration of his recreation leave, which I understand was on 12 July 2019.  That means that there was 2.88 days of recreation leave accrued during that period.  The applicant’s claim in respect of those amounts succeeds.

16. The applicant also claims in respect of a period of personal leave.  He says that he was ill.  He said that he had influenza and he was stressed.  He provided medical certificates dating from soon after his last day at work on 17 May.  The first one is dated 22 May 2019 and is simply from a Dr Ojo that says:

    Mr Stojkoski is receiving medical treatment for a condition.  He will be unfit for work in his usual occupation for the period 21 May to 23 May inclusive.

17. There are a number of other certificates, usually for one or two days, for May and June that add up to 16 days in total.  They are not all continuous, but these medical certificates were presented to the employer on 27 July 2019.  That is at least two weeks after the cessation of the period of employment as I have found it, and well after the periods of illness.  Mr Stevens said in his affidavit that he did not accept that the certificates were genuine.  Mr Stojkoski did not seek to cross-examine Mr Stevens on that assertion, and I believe I must give it some weight. 

18. Knowing that the matter was in contention, Mr Stojkoski has not provided a medical report from the doctor or doctors involved, setting out what the medical condition was, the degree of incapacity, and so on.  I am not satisfied that Mr Stojkoski was too ill to work over that period.  That part of the claim will not succeed. 

19. The next part of the claim is for fuel expenses for travel between Mr Stojkoski’s home in Lyons, a Darwin suburb, and the Darwin CBD where he was working on a contract between his employer and the Northern Territory Government for provision of IT services.  Mr Stojkoski argues that his contract of employment, and in particular clause 10, entitles him to out-of-pocket expenses.  He says his out-of-pocket expenses include travel from the 17 kilometres from Lyons to Darwin CBD and for fuel.  His claim for that is significant over some three years.  The respondent refers to clause 9 of the employment contract which says:

    The company will reimburse the employee for business travel in a personal car at a set rate per kilometre.  Travel to and from the employee’s daily work is, as would be expected, a normal part of the job.  Where the employee’s assignment requires travelling additional to work which the employee considers excessive, the employee should discuss kilometre compensation with the appropriate company manager.

20. It appears from the evidence that Mr Stojkoski, while he had a home office and often worked there, he frequently travelled to workplaces in the Darwin CBD in the Northern Territory Government offices where he was involved in working on the IT project.  He said that he “hot-desked” there, and he would have to give notice if he was coming in.  In my view, that kind of travel, particularly as Mr Stojkoski was resident in Darwin and was travelling to the CBD, is consistent with a daily commute. In the words of clause 9 this would be, “a normal part of the job,” and not an out-of-pocket expense covered by clause 9.  I am fortified in that conclusion because Mr Stojkoski told me that from 2016 to 2019, at no point did the employer pay his fuel expenses for that commute, while paying other obvious out-of-pocket expenses for other travel.  The applicant does not succeed in that part of the claim.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       23 March 2021