Wei v Chinese Australian Services Society Ltd

[2020] FCCA 1293

FEDERAL CIRCUIT COURT OF AUSTRALIA

WEI v CHINESE AUSTRALIAN SERVICES SOCIETY LTD [2020] FCCA 1293

Catchwords:
INDUSTRIAL LAW – Fair work small claim – oral contract of employment –principal of a Chinese language school – unpaid penalties and annual leave – application of relevant award.

Legislation:

Fair Work Act 2009 (Cth)

Federal Circuit Court Rules 2001 (Cth)

Social, Community, Home Care and Disability Services Industry Award 2010 [MA000100]

Applicant: WEI SUN

Respondent: CHINESE AUSTRALIAN SERVICES SOCIETY LTD

File Number: SYG 3113 of 2018

Judgment of: Judge Altobelli

Hearing date: Decided on the papers in Chambers

Date of Last Submission: 8 May 2020

Delivered at: Wollongong

Delivered on: 29 May 2020

REPRESENTATION

The Applicant was self-represented.

Solicitors for the Respondent: Australegal

ORDERS

1. The Respondent is directed to provide to the Applicant within 21 days a schedule calculating the quantification of the Applicant’s entitlement pursuant to the Reasons for Judgement delivered 29 May 2020. 

2. Within 14 days thereafter the Applicant is to advise the Respondent as to whether she agrees with the proposed schedule.

3. Payment be made within 28 days after the Applicant agrees to the Respondent’s schedule calculating the quantification of her entitlement.

4. In the event the parties are unable to reach agreement about quantification consistent with the Reasons for Judgement delivered 29 May 2020, leave be granted to the parties to relist the matter on 14 days’ notice.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

SYG 3113 of 2018

WEI SUN

Applicant

And

CHINESE AUSTRALIAN SERVICES SOCIETY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

1. By way of a Small Claim under the Fair Work Act 2009 (Cth) filed 8 November 2018 the Applicant brings the present proceedings against her former employer. It is a claim that arises out of an oral contract of employment in respect of the period February 2004 to 15 December 2017. The Applicant was employed as the Principal of a Chinese language school on a part-time basis. The claim is in relation to unpaid penalties and annual leave. The claim totals $14,007.52. The Applicant was aware that she could only claim for the 6 year period preceding the date of filing and, accordingly, her claim was limited to 8 November 2012 onwards.

2. By way of a Response filed on behalf of the Respondent on 18 February 2019, it opposes the making of any orders in favour of the Applicant and denies any liability in respect of the same.  In fact, the Respondent contends that it has overpaid the Applicant to the extent of $13,803.73.

Issues

1. From the Court’s perspective the main issue in this case is to establish the terms of the oral agreement between the parties relating to the Applicant’s employment.  They have different perspectives on this.  If there was a written contract, it was not in evidence.  The Applicant contended there was no written contract.  There is some suggestion in the Respondent’s material that there was a written contract, but it is no longer available.  As no written contract was in evidence, the Court proceeds on the basis that it was an oral contract of employment.

2. Once the terms of the oral contract are established, the Applicant’s claim, and the Respondent’s counter claims, can be considered.

3. Both parties, in the evidence, raised many issues that are not relevant to the determination of the dispute between them.  As in many cases where a relationship between litigating parties has broken down, irrelevant issues are raised.  Thus, for example, whatever contractual arrangements the Respondent entered into with its other employees and at other times is largely irrelevant in circumstances where there was no contention that it used a standard contract.  The nature of the Respondent’s operation as a charitable not-for-profit organisation is also irrelevant.  There was no contention that the applicable law was different when applied to a charitable organisation.

Procedure

1. The parties estimated that this case would take 4 days to hear.  Ultimately, and no doubt seeking to maintain a sense of proportionality having regard to the size of the claim, all parties agreed that the matter could be dealt with the by the Court having regard to the written evidence and submissions of the parties only.  This is, the Court acknowledges, an unusual procedure.  The determination of this matter is taking place during the COVID-19 pandemic.  This has disrupted the listing of cases in the Court.  Had the matter truly required 4 days of Hearing time, this time could not have been found until 2021.  The Court applauds the parties’ sensible decision to have their case determined on the papers.  Having now considered all the material before it, the Court is comfortably satisfied that there is no prejudice to either party that was caused by the absence of oral evidence in cross-examination.  For the record, however, the Court notes that it would never have allowed this case to have been listed for 4 days because the allocation of judicial resources would have been grossly disproportionate to the size of the claim.

Applicable law

1. This litigation is being conducted pursuant to the Small Claims provisions of the Federal Circuit Court Rules 2001 (Cth), and the Fair Work Act 2009 (Cth) (hereafter referred to as the “Fair Work Act”). The Fair Work Act provided the statutory basis of the claim, and the Award described below established the framework for the claim.

The evidence

1. Both parties provided extensive material to the Court which is identified below.

2. In the Applicant’s case, she relied on the following documents:

   a)Application filed on 8 November 2018 and “Form 5 Small claim under the Fair Work Act 2009 (Cth)” filed on 8 November 2018;

   b)Affidavit of Wei Sun sworn 10 April 2020 and filed 14 April 2020;

   c)Affidavit of Jing Yang sworn 30 April 2020 and filed 1 May 2020; and

   d)Written submissions filed 1 May 2020 and 6 May 2019.

3. In the Respondent’s case, they relied on the following documents:

   a)Response filed 18 February 2019;

   b)Affidavit of Henry Nan Hung Pan OAM affirmed and filed 24 April 2020;

   c)Affidavit of Robin Chen affirmed and filed 24 April 2020;

   d)Affidavit of Hun Chew Low affirmed and filed 24 April 2020;

   e)Affidavit of Man Hang Bosco Chang affirmed and filed 24 April 2020;

   f)Response to Interrogatories from the Applicant, Ms Sun Wei, dated 23 February 2020; and

   g)Written submissions filed 8 May 2020.

Uncontested facts

1. There are some uncontested facts in this case.  The parties agree that the school at which the Applicant worked was closed during school holidays.  They agree that there were 17 weeks of school holidays in calendar years 2013, 2014 and 2015, 16 weeks of school holidays in 2016, and 17 weeks of school holidays in 2017.  The parties agree that the applicable Award governing the Applicant’s employment was the Social, Community, Home Care and Disability Services Industry Award 2010, and that based on the Applicant’s duties, her classification was as a Social and Community Services Employee, level 3, pay point 1.

The contract of employment

1. According to the Applicant, her contract of employment with the Respondent provided for her to be employed as part-time Principal, to work 6 hours per week, at an initial hourly rate of $22.36 per hour.  This rate later increased to $28.75 per hour.  The Applicant contends that she regularly worked six hours per week between Monday to Saturday, and that she worked throughout the year and not just during school terms.  According to the Applicant her work was not limited to the times during which the school was open, or the times at which the Respondent had access to the public school premises from which they operated, or that her work was limited to the school terms, being the periods when the school actually operated.  She contends that her work extended well beyond the operating hours of the school, and hence the agreement was that she be paid for six hours each week, for 52 weeks of the year.  The Applicant contends that this is, in fact, what happened, and how she was actually paid, for the 13 years of her employment until December 2017 when that employment ended.

2. The contentions of the Applicant are corroborated by some documentation.  Thus, for example, the payslips issued by the Respondent are consistent with the Applicant’s contention.  As will be seen, the Respondent contends that the payslips were erroneous, but they cannot dispute what their own business records clearly indicate.  A further important corroborating of document is one described as ‘Annual Job List_ Wei SUN’, being the Annexure C to the Applicant’s Small Claim filed 8 November 2018.  This is an important document.  On its face it appears to be a record that was prepared by the Respondent, possibly with the input of the Applicant.  The Respondent’s evidence does not seem to address this important document.  The Court could not discern, for example, where, if at all, in the voluminous material filed on behalf of the Respondent, it sought to cavil with this document.

3. When this document is carefully examined it provides content as to the more detailed terms of the contract between the Applicant and the Respondent.  For example, it identifies where the Applicant will be working: on-campus, at the Respondent’s office, at the Applicant’s home, and at other places.  It identifies the times that the Applicant was to work.  Thus, the Applicant’s work on-campus was five hours each week between 12:30pm and 17:30.  The Applicant’s work in the Respondent’s office was identified to be two hours per week.  Measures, expressed as time, are provided for the Applicant’s work at home: for example preparing teaching materials would be an average of one hour per week per school, preparing teachers timesheets one hour for each timesheet, preparing monthly, semi-annual and annual reports to the Respondent, three hours each time.

4. Before considering the Respondent’s contentions about the Applicant’s contract, the fact is that this document creates a strong impression that the Applicant’s work was not limited to her time on campus when the school was actually operational.  The Annual Job List is consistent with the Applicant’s assertion that her role involved work on more than just the Saturday when the school was operating, and involved work throughout the year, even when the school was not operating.

5. In any event, the evidence supporting the Applicant’s contention as to her oral contract of employment with the Respondent is threefold: firstly, there is the Applicant’s own sworn evidence; secondly, there are the payslips; thirdly, there is the document known as the ‘Annual Job List’.

6. The Respondent’s contention about the contract of employment is that the Applicant only worked four hours each week on a Saturday, and that was limited to those weeks when the school was open.  It acknowledges, however, that the Applicant was paid on the basis that she worked six hours, and was paid 52 weeks of the year.

7. The evidence in support of the Respondent’s contention is obscure.  Indeed, it seems at times as if the Respondent engaged in some hyperbole.  For example, in submissions there is the suggestion that the Applicant’s assertion that she worked throughout the school holiday periods to be “arrant nonsense”.  In response to the Applicant’s assertion about the hours she worked, the Respondent contended that the school was only open for three hours each Saturday and thus the Respondent had no idea what the Applicant allegedly did during the additional three hours each Saturday that she appeared to be claiming.  Starkly, however, in submissions the Respondent openly conceded that as a not-for-profit charity, its payroll records were not optimal.  The concession is made that the Applicant’s fortnightly payslips appear to record that she did in fact work six hours each Saturday, and that she worked at 52 weeks of the year.  This is described, however, as an administrative error.

8. Four Affidavits were read in the Respondent’s case.  None are relevant to the actual terms of the employment contract with the Applicant.  Some of the Affidavits clearly indicate what the Respondent intended, often with the benefit of many years hindsight.

9. The Affidavit of Hun Chew Low affirmed 24 April 2020 contains some information corroborative of the Applicant’s case, not the Respondent’s case.  Mr Low is the Senior Executive Officer for Technical Support for the Respondent.  He took up the position in 2014.  He discusses the Respondent employer’s payroll system.  He acknowledges at paragraph 5, for example, that he is not clear of the basis of the computation as this was a matter decided before his time.  He acknowledges that the Applicant was paid via the Respondent’s payroll system for 6 hours per week, 52 weeks per year.  He then deposes:

   My understanding is that the amount is a lump sum to cover the operating hours of the Kogarah campus, all work carried out outside the school operating hours and any weekend loading and four weeks annual leave.

   There seems to be an inconsistency between this evidence, from the Respondent’s own witness, and the central contention in the Respondent’s case.  Mr Low acknowledges his understanding that the Applicant was paid a lump sum to cover the broad range of her responsibilities and on the basis that she was paid this lump sum by 52 weekly instalments at 6 hours each week.  In fact, the payslips were issued fortnightly, so the correct situation is 26 equal instalments of 12 hours per fortnight.  The Court notes that Mr Low’s assertion is more consistent with the Applicant’s case, then the Respondent’s case, and is consistent with the ‘Annual Job List’ document.  Of course, Mr Low’s evidence raises issues about the quantification of the Applicant’s claim, and that is something that will be discussed below.

10. The Affidavit of Man Hang Bosco Chang affirmed 24 April 2020 is in many respects similar to that of Mr Low.  Mr Chang is the Executive Support Officer, Strategic Miscellaneous Services, of the Respondent.  At paragraph 8 of his Affidavit, and consistent with Mr Low, he describes the Applicant’s “salary package” as based on the Chinese language classes running on campus 3 hours each week, but the campus Principal receiving a lump sum of 6 hours each week inclusive of work outside school hours, administration, and also covering the loading for weekend work.  He too acknowledges that the Applicant was paid 52 weeks each year, inclusive of 4 weeks annual leave.  Once again, the evidence of this witness raises issues about the quantification of the Applicant’s claim, which will be discussed below.

11. The Court accepts the Applicant’s contention as to the terms of her oral contract with the Respondent.  She was employed on a part-time basis, six hours each week, for 52 weeks of the year.  She was paid, in effect, 312 hours annually which was to compensate her for all duties pertaining to her employment, whenever and wherever actually undertaken, and of course including her annual leave.  The hourly rate of pay was to be in accordance with the Award referred to above.

Hours worked

1. A relevant issue is how many hours the Applicant actually worked, as this goes to the quantification of her claim for Saturday loading.  The Applicant gave evidence about this.  The Respondent should have been able to give clear and accurate evidence about this, for example in the form of timesheets, but it did not, and could not, because it acknowledges that its recordkeeping was inadequate.  All the Respondent could accurately give evidence about is when classes were scheduled, and for how long.  Only the Applicant, however, was in a position to depose as to her actual time on campus, on a Saturday.  It is clear from the Annexures to her Small Claim filed 8 November 2018 that she asserts she worked 5 hours each Saturday on campus but, of course, that must be limited to when the campus was open, and that was not 52 weeks of the year.  Given that the Applicant’s evidence is the only evidence about this issue, and given the Court’s acceptance of its inherent plausibility even if classes were actually scheduled for less than the time she claims, the Court finds that the Applicant worked five hours on campus each Saturday when the school was actually running i.e. during the school terms.

Saturday loading

1. It must follow, so far as the quantification of the Applicant’s claim for Saturday loading goes, that she cannot claim loading for 52 weeks of the year.  The Court is not prepared to accept that, given the flexible employment arrangement entered into between the Applicant and the Respondent insofar as it relates to work outside the times when the school was actually open, that the Applicant necessarily worked on a Saturday (for example during school holidays).  If that is the Applicant’s contention, the Court rejects it on plausibility grounds.  It must follow that the Applicant’s claim for Saturday loading can only be quantified by reference to the number of weeks each year that the school was actually open on campus.  The quantification of this is rendered easier because the parties agreed as to the number of weeks each year that this occurred.  Moreover, the Respondent did not put in contention the Applicant’s calculation of the Saturday rate, including loading.  Insofar as the Respondent contended that the contract it had with the Applicant included a component of, in effect, setting off the Saturday loading for payment over 52 weeks, the Court does not accept this.  Such an important trade-off in entitlements would have had to have been expressly articulated, either orally or in writing.  There is no evidence to suggest this took place.

Annual leave

1. The second part of the Applicant’s claim relates to annual leave.  The Applicant’s accrued annual leave was displayed on her payslips.  Her final payslip covered the period 13 – 26 December 2017.  It refers to annual leave totalling 62.2934 hours.  This was not paid to her.

2. Moreover, the Applicant contends that her actual annual leave entitlement over the relevant period was 122.2934 hours.  In this regard, her concern seems to be that between 2013 and 2017, the Respondent deducted annual leave of 12 hours (i.e. 2 weeks pay).  She described this as ‘forced deducted annual leave’.  What the Applicant seems to mean here is that she was treated as having two weeks annual leave by her employer, seemingly on an arbitrary basis.

3. There is no provision in the Award, or indeed in the Fair Work Act itself, that entitled the Respondent to act in the manner it did. There is no evidence to indicate that any contract of employment enabled the Respondent to do so. The Applicant’s claim in this regard is made out.

4. The Respondent’s contention for not paying the Applicant’s annual leave in accordance with her final payslip is hard to accept.  It seems justified by reference to its interpretation, ex post facto as it turns out, of the terms of the oral contract of employment.  There is no apparent basis for the Respondent not paying to the Applicant 62.2934 hours of annual leave, together with any applicable leave loading.

Liability

1. Having regard to the Court’s findings above, and by reference to the relevant provisions of the Fair Work Act and the Award, the Court finds that the Respondent has contravened its obligations towards the Applicant in relation to Saturday loading and annual leave.

Quantification of claim

1. Turning to quantification of the Applicant’s claim, having regard to the Court’s findings about her annual leave entitlement, she should be paid for 122.3 hours, annual leave loading should be added.

2. As to the quantification of the Saturday penalties, the Annexure F to the Small Claim filed 8 November 2018 facilitates these calculations somewhat.  The quantification needs to take into account the following parameters.  In terms of time, it can only start from 8 November 2012, being six years before the date of filing of the claim.  It can only be for five hours on each Saturday.  It can only relate to Saturdays during the school term.  The calculation must take into account the applicable Saturday rate in accordance with the Award.  A deduction must, of course, be made for the amount paid.  Moreover, where the Applicant contends that the hourly rate that she was paid was less than the award rate, an adjustment must be made in this regard.

1. In the circumstances, the Court considers it most unwise if it were to engage in these calculations on its own.  It has set out the parameters of the calculations that need to be undertaken, having regard to the Court’s findings.  The Court finds that the Respondent has contravened the relevant provisions of the Award in relation to payment of casual rates, payment of applicable Saturday penalty rates, payment of annual leave, and payment of annual leave loading.

2. The Respondent is directed to provide to the Applicant within 21 days a schedule calculating the quantification of the Applicant’s entitlement pursuant to these Orders.  The Applicant has 14 days to indicate whether she contends otherwise.  Payment should be made within 28 days after this has taken place.  Leave will be granted to relist on 14 days’ notice should the parties be incapable of reaching agreement about quantification consistent with these Reasons for Judgement.

3. For reasons that are set out above, the Respondent’s contention that the Applicant has in fact been overpaid is rejected by the Court.  There is no basis apparent to the Court for a set-off of any sort.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date: 29 May 2020