Wells v W G & F L Fischer Pty Ltd (Trustee)

[2019] FCCA 3764

FEDERAL CIRCUIT COURT OF AUSTRALIA

WELLS v W G & F L FISCHER PTY LTD (TRUSTEE) [2019] FCCA 3764

Catchwords:
INDUSTRIAL LAW – Claim for underpayment of wages – contravention of Modern Award – breach proven – orders for restitution.

Legislation:

Fair Work Act 2009 (Cth)

Cases cited:

Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526

Applicant: ROSS JAMES WELLS

Respondent: W G & F L FISCHER PTY LTD AS TRUSTEE FOR THE FISCHER FAMILY TRUST

File Number: ADG 104 of 2018

Judgment of: Judge Heffernan

Hearing date: 10 December 2018

Date of Last Submission: 28 March 2019

Date of Written Submission: 21 May 2019

Delivered at: Adelaide

Delivered on: 20 December 2019

REPRESENTATION

The Applicant: In Person

The Respondent: Mr Fischer

THE COURT MAKES THE FOLLOWING DECLARATION:

Between 12 October 2017 and 16 January 2018 the respondent breached the terms of a Modern Award namely the Road Transport and Distribution Award (2010) (MA990038) by failing to pay the applicant for hours worked.

AND THE COURT ORDERS AS FOLLOWS:

1. The respondent is to pay to the applicant an amount of FOUR THOUSAND AND THIRTY SEVEN DOLLARS ($4,037.00) by 7 February 2020. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 104 of 2018

ROSS JAMES WELLS

Applicant

And

W G & F L FISCHER PTY LTD AS TRUSTEE FOR THE FISCHER FAMILY TRUST

Respondent

REASONS FOR JUDGMENT

1. This is a small claim under the Fair Work Act 2009 (Cth) (‘the Act’) by Mr Ross Wells alleging a breach of a term of a Modern Award by under payment of wages.

2. Between 12 October 2017 and 16 January 2018 Mr Wells was employed by the respondent as a truck driver.  He had previously worked as a truck driver on and off over the past 40 odd years.  The respondent does not dispute the applicant’s main contention that there was some under payment of wages that requires rectification.

3. The dispute relates to the number of hours worked, the relevant rate of payment for overtime, the correct rate of pay for the applicant as a casual employee, and the exact period of employment.

4. Both the applicant and respondent were self-represented at trial.  Neither of them was particularly well prepared to present their case on the day of trial.

5. There was a dispute on the day of the trial as to whether the applicant had sued the wrong party.  The proceedings named ‘William G Fischer’ personally as the respondent.  It was agreed between the parties the applicant was paid by W G & F L Fischer Pty Ltd.  That is clear enough from the ABN on the applicant’s payslip which is the number for the family trust.

6. Mr Fischer is a trustee for the family trust.  Prior to writing this judgment I gave leave to the applicant to amend the identity of the respondent to be W G & F L Fischer Pty Ltd as trustee for the Fischer Family Trust.  There is no prejudice to Mr Fischer in my doing so and he did not oppose me doing so.

7. The respondent operates a relatively small and closely run business.  Mr Fischer is the manager and in effect the owner of the business.  He agrees that the applicant is entitled to a rectification for unpaid wages. He has prepared the matter for trial on that basis.

8. The trial was run on the basis that the applicant’s employment as a casual was admitted by the respondent.

9. When this application was originally filed the applicant asserted his details of claim as follows:

   A

Gross Pay

As per Annexure B (Fischer)
As per Annexure G (Audit)
Balance outstanding

$17,951.00
$26,529.30
$8,578.30

B

As per the Award gross
Average wage per week
12/10/2017 – 24/12/2017

$22,340.82

$2,234.08

Expectant pay for January 2018

$8,936.32

Paid in the month of January 2018

$2,842.75

Claim

$6,093.57

1. In summary of the above, the total amount claimed by the applicant at the time of filing was $14,671.87.  In June 2018, the applicant filed an Amended Application which was formulated in identical terms to the above except that he added a component for non-economic loss in the amount of $2,457.88.  That brought the total amount claimed to $17,129.75.  As will be seen from these reasons, the quantum of that claim was reformulated again when the applicant filed written submissions after the close of evidence.

Background

1. In October 2017, the applicant attended a job interview with the respondent conducted by Mr Fischer.  The proposed job was as a truck driver transporting produce such as grain and fodder in a semi-tipping truck trailer.  The applicant commenced employment on the 12 October 2017.

2. The respondent believed that prior to commencing work with him the applicant had been unemployed on a long term basis.  The extent of the applicant’s immediate past history of unemployment is a matter of some dispute.  He was on Centrelink disability payments at the time of the interview and his potential to work was being managed by an employment agency, ‘Job Prospects’.  There was some disagreement between the parties as to the reason for the applicant being in receipt of disability payments.  This dispute appears to have been of real significance to the parties but it was of limited relevance to the claim made by the applicant in these proceedings.

3. The applicant says that at the time of being employed by the respondent he was looking for at least forty hours of work per week because anything less would not compensate for the amount that he would lose by way of Centrelink benefits.

4. The respondent says it was agreed that the applicant would be employed on the basis of at least 20 hours per week for the first six months until about the 7 May 2018.  I accept the evidence of the respondent in that regard.

5. Due to his history of unemployment and Centrelink benefits, the applicant was eligible for a wage subsidy scheme to be paid to the respondent and which the respondent believed might have assisted with rehabilitation and returning the applicant to fulltime work.

6. The applicant accepted the position and shortly after commencing employment advised Centrelink and his payments were suspended.

7. It is agreed between the parties that given his level of experience, the applicant was properly classified as a Grade 6 driver under the Road Transport and Distribution Award 2010 (MA990038).

8. The rates of pay under that award were:[1]

   [1]     Pay rates summary, respondents Court Book at p 33.

Hourly rate	$26.20
Full time rate	$20.96
Part time rate	$20.96

1. The applicable overtime rates were:

First two hours	$33.54
Overtime after two hours	$44.02

1. The applicant’s period of employment with the respondent did not proceed smoothly.  Mr Wells and Mr Fischer each give a different account as to why that is so.  The applicant says problems arose with his calculation of pay and hours worked in the first few weeks.

2. The applicant says that he was at times required to work shifts that were inconsistent with the maximum permitted in a 24 hour period.  He had concerns about the manner in which he was instructed to complete his log book.

3. The respondent says that problems arose from the outset as to the applicant’s ability to cope with the duties required of him, his ability to follow instructions, and interpersonal relations with others, in particular Mr Dean Kossats who was employed as an assistant manager and involved in the day-to-day training of drivers and giving them instructions.  On the respondent’s case, the applicant simply could not cope with the duties that were reasonably required of him.

4. The applicant says that his employment was never officially terminated by the respondent but that his last relevant pay period would have ended on the 24 January 2018.

5. It is agreed that the applicant’s last shift was on the 16 January 2018 when the respondent says the applicant in effect quit his employment.  The circumstances surrounding the applicant’s departure from work on the day of his final shift was the subject of cross examination by the respondent.  On the respondent’s case, the applicant simply “quit” when he stormed out of a meeting because there was dispute between the applicant and the respondent about sorting out the applicant’s drivers log book.

6. Mr Fischer told the Court that he believed he was trying to assist the applicant in sorting out his log book but claims that the applicant did not even read the proposal that was being put to him.

7. It was put to the applicant that he “threw it down”, (a reference to the log book) left the premises and did not take the truck out.  Mr Wells agreed that there had been a dispute on his last day but said that it was in relation to being asked to work more hours in a 24 hour period than “the log book tells me I am allowed”.  On his account, the log book “says no more than 12 hours in a 24 hour period”.

8. He did not deny that he had left the office on that day as put to him by Mr Fischer.  On his account, rather than simply storming off, he said that when he walked out of the office, he went into the yard, saw the truck that he was expected to drive and noticed that a mud flap had not been fixed.  For that reason he thought the vehicle was not roadworthy and “I left the premises and have not been back since”.

9. The applicant denied, when it was put to him during cross examination, that he had not reported the maintenance issue on his truck to Mr Fischer.

10. Both parties had difficulty martialling their evidence and articulating their positions with clarity.  As the evidence unfolded it became clear that the ultimate ambit of the dispute between the parties was:

    a)What was the appropriate rate of pay which Mr Wells was entitled from time-to-time?  This was ultimately agreed.  Mr Wells was a Grade 6 driver;

    b)The extent to which there were unpaid hours of work for which payment was owing to Mr Wells; and

    c)Whether Mr Wells was entitled to compensation on the basis of not having been offered shifts on a regular basis during January 2018.

11. The applicant relied on a ‘Court Book’ which consisted of recent payslips he had received from the respondent, a summary of relevant rates of pay prepared for him by the Fair Work Ombudsman, and a series of summaries which were not at all self-explanatory but which purported to show the hours he worked and discrepancies in either the hours for which he was paid or the rate at which he was paid.

12. The position was not much clearer at the conclusion of his evidence.  I reserved my judgment to consider the evidence but found it necessary to call the matter back on in order to provide the parties with a further opportunity to demonstrate their respective positions on the evidence.

13. I made orders requiring both parties to file and serve a schedule that summarised their cases in an intelligible way as an aide to considering the evidence.  It was not intended for that to be an opportunity for the parties to change or reformulate their position or to provide further evidence.

14. The applicant’s document, filed under the heading ‘Further submissions’ resulted in a reduction in the amount claimed by him.  In summary, the applicant asserts that between 16 October 2017 and 7 January 2018, the respondent paid him $16,896, whereas on his calculations he should have been paid $23,907.58, a difference of $7,011.58.  In addition, he claimed an amount for wages he was denied an opportunity to earn between 8 January 2018 and 31 January 2018 because he had not been given shifts by the respondent.  This claim amounted to $5,023.14.  This claim appears to be based on 12.5(b) of the award which provides that an employer must, where practicable, notify a casual employee if their services are not required the next working day.  That aspect of the claim is based on the assertion by the applicant that if he was not told he was not required on the following day then he should be paid the average daily amount that he had earned between 12 October 2017 and 7 January 2018 for each of the 23 days he says that he was not told that his services would not be required on the next day.

15. In addition, the applicant claimed an amount of $3,008.18 for interest and non-economic loss.  He has not particularized the rate of interest claimed, the period over which he asserts interest has been accrued, or the total amount of interest as opposed to the total amount of non-economic loss incorporated into that single figure.  Further, beyond asserting that the circumstances of his brief employment with the respondent had caused him stress, the applicant has not identified how or why he should be paid an amount for non-economic loss.  He did not identify why the amount claimed by way of non-economic loss had increased by $550.30.  The total amount of his reformulated claim came to $15,042.90.

16. The summary provided by Mr Fischer for the respondent was presented in a format that sought to address the claim as originally articulated by the applicant.  He disputes that the applicant is entitled to any amount for occasions when he was not offered shifts.  This is because he was a casual employee.  The respondent did not attempt to address the question of non-economic loss but it was inherent from its submissions that it accepts only that the applicant had a claim based on a certain amount of underpayment.  The respondent’s position in summary was that it agrees that the applicant was paid $17,951, as originally alleged by the applicant, but disputes the degree of underpayment alleged by the applicant for particular shifts.  On the respondent’s calculation, Mr Wells is owed $4,037.10.

17. I am satisfied that Mr Wells was employed by the respondent between 12 October 2017 and 16 January 2018 as a casual truck driver at pay Grade 6.

18. I am satisfied that he effectively resigned his employment on 16 January 2018 in the circumstances described by the respondent in his evidence.  The applicant has not satisfied me that he is entitled to compensation for shifts which he was not offered between 8 January and 31 January 2018. He was a casual employee and to the extent that there was any breach of the clause in the award identified by him, that did not automatically entitle him to be paid for shifts he was not offered and which he did not work.

19. Further, the applicant has not demonstrated to me that he is entitled to the amount claimed for non-economic loss.  The onus is on the applicant to establish any loss he claims to have suffered.  The applicant has not identified the nature of the loss.  Further, he must demonstrate a causal connection between the claimed loss and the actions of the respondent.[2] As I have noted above, beyond the mere assertion that he was stressed by his experience with the respondent, the applicant has provided no evidence as to the nature or extent of any asserted non-economic loss.

    [2] Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526

20. I find that the respondent underpaid the applicant in breach of the terms of the Road Transport and Distribution Award 2010 between 12 October 2017 and 16 January 2018.  On balance, I accept the respondent’s calculations that the overall underpayment was as per the hours asserted by the respondent in Appendix D of his outline of submissions for the reasons identified by him.

21. Accordingly, I find for the applicant on a rounded down amount of $4037.00.  I make the declaration and orders to be found at the beginning of these reasons.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date: 20 December 2019