Wills v Ningaloo Resorts Pty Ltd
[2011] FMCA 433
•17 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WILLS v NINGALOO RESORTS PTY LTD | [2011] FMCA 433 |
| INDUSTRIAL LAW – Small claim – alleged failure to pay notice in lieu on termination of employment – whether entitlement to payment of notice on termination of employment – exclusions from entitlement – casual employees excluded – nature of employment – whether applicant a casual employee. |
| SMALL CLAIMS – Basis for jurisdiction – jurisdictional limitation. |
| PRACTICE & PROCEDURE – Exclusion of lawyers in small claims proceedings – leave for non-lawyer to appear for a corporation. |
| Fair Work Act 2009 (Cth) ss.61(2)(l) and (3), 117(3), 123(1)(c), 394(1), 548, 570, 772, 777 Fair Work Regulations 2009 (Cth) Federal Magistrates Act 1999 (Cth), s.3(a) and (b) Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 9.04, 45.11(1) |
| MacMahon Mining Services Pty Ltdv Williams (2010) 201 IR 123; [2010] FCA 1321 McShane v Image Bollards Pty Ltd as Trustee for The Scott Family Trust trading as Image Bollards [2011] FMCA 215 Williams v MacMahon Mining Services Pty Ltd (2009) 231 FLR 59; [2009] FMCA 511 Wills v Passeck [2011] FMCA 39 |
| Applicant: | SANDRA LESLEY WILLS |
| Respondent: | NINGALOO RESORTS PTY LTD AS TRUSTEE OF THE SEA BREEZE UNIT TRUST TRADING AS SEA BREEZE RESORT |
| File Number: | PEG 235 of 2010 |
| Judgment of: | Lucev FM |
| Hearing date: | 2 June 2011 |
| Date of Last Submission: | 2 June 2011 |
| Delivered at: | Perth (by telephone to Exmouth) |
| Delivered on: | 17 June 2011 |
REPRESENTATION
| For the Applicant: | In person |
| For the Respondent: | Mr A Passeck (by leave) |
ORDERS
That the application is dismissed.
That there be no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 235 of 2010
| SANDRA LESLEY WILLS |
Applicant
And
| NINGALOO RESORTS PTY LTD AS TRUSTEE OF THE SEA BREEZE UNIT TRUST TRADING AS SEA BREEZE RESORT |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Ms Wills, is claiming compensation in the Court’s small claims jurisdiction under the Fair Work Act 2009 (Cth)[1] for alleged failure to pay notice in lieu on termination of her employment by the respondent, her former employer, Ningaloo Resorts Pty Ltd as trustee of the Sea Breeze Unit Trust trading as Sea Breeze Resort.[2] Sea Breeze Resort is just out of Exmouth on Western Australia’s mid north coast.
[1] “FW Act”.
[2] “Sea Breeze Resort”. In an earlier judgment, Wills v Passeck [2011] FMCA 39 (“Wills v Passeck”) the Court held that it was without jurisdiction to hear a claim of unlawful termination by Ms Wills due to her having no certificate from Fair Work Australia under s.777 of the FW Act.
Leave to appear for corporation
Section 548(5)-(9) of the FW Act provides that:
Legal representation
(5) A party to small claims proceedings may be represented in the proceedings by a lawyer only with the leave of the court.
(6) If the court grants leave for a party to the proceedings to be represented by a lawyer, the court may, if it considers appropriate, do so subject to conditions designed to ensure that no other party is unfairly disadvantaged.
(7) For the purposes of this section, a person is taken not to be represented by a lawyer if the lawyer is an employee or officer of the person.
Representation by an industrial association
(8) The regulations may provide for a party to small claims proceedings to be represented in the proceedings, in specified circumstances, by an official of an industrial association.
(9) However, if small claims proceedings are heard in a court of a State, the regulations may so provide only if the law of the State allows a party to be represented in that court in those circumstances by officials of bodies representing interests related to the matters in dispute.
Rule 9.04 of the Federal Magistrates Court Rules 2001 (Cth)[3] provides that a lawyer must appear for a corporation unless the Court grants leave for a non-lawyer to appear. At hearing Mr Passeck, a non-lawyer, sought leave to appear for Sea Breeze Resort.
[3] “FMC Rules”.
In McShane v Image Bollards Pty Ltd as Trustee for The Scott Family Trust trading as Image Bollards[4] the Court dealt with an application by a director of a corporation for leave to appear as a non-lawyer in a small claims matter under the FW Act. In Image Bollards the Court observed that:
39. Section 548(5) of the FW Act prevails over s.44 of the FM Act and r.9.04 of the FMC Rules in relation to the appearance of lawyers in this Court. However, it does not prevent the Court from granting leave for a corporation to be represented by a non-lawyer under the provisions of r.9.04 of the FMC Rules. Therefore, the Court can allow a non-lawyer to appear for a corporation in small claims proceedings in this Court under r.9.04 of the FMC Rules. Such an interpretation is not inconsistent with s.548 of the FW Act which is silent as to how a corporation might be represented in small claims proceedings in this Court. As the Court explained in Cadillac Transport Repairs, where the relevant legislation leaves open the possibility that a party may be represented in a manner other than that prescribed in the legislation, r.9.04 of the FMC Rules can still apply so that a corporation can seek leave to appear other than by a lawyer. Thus, in this case, because s.548 of the FW Act:
a) is silent as to the appearance of corporations in small claims proceedings in the Fair Work Division of this Court; and
b) is insufficiently comprehensive or conclusive to constitute a code as to appearance in small claims proceedings in the Fair Work Division of this Court,
[4] [2011] FMCA 215 (“Image Bollards”).
r.9.04 of the FMC Rules can still apply insofar as it provides for the Court to grant leave to non-lawyers to appear in proceedings.
40. Most of the factors outlined in Alcantara related to the appearance of non-lawyers are not relevant to a consideration of whether a non-lawyer should be granted leave to appear under r.9.04 of the FMC Rules in small claims proceedings in the Fair Work Division of this Court, because they are directed to circumstances where lawyers ordinarily have a right of appearance. The remaining factors, adapted to suit the circumstances of small claims proceedings in the Fair Work Division of this Court, which might be considered by the Court are as follows:
a) the relative complexity or simplicity of the matter;
b) the objects and purposes of the FM Act and FMC Rules, including the impact of those objects and purposes on case management considerations; and
c) whether a party can be effectively represented by the proposed representative, and whether prejudice will be suffered by any party by reason of the appearance or non-appearance of the proposed representative.
41. In addition, regard must be had to the objects and purposes of the inclusion of the provisions concerning small claims proceedings in the FW Act.
42. As in Alcantara, the above factors do not purport to be a closed list. Further, and again as in Alcantara, the discretion is to be exercised judicially having regard to all relevant considerations.
43. In this case there is a contractual issue as to whether Image Bollards has or has not paid Mr McShane sales commission in accordance with his contractual terms. The contractual issue is a simple one, and does not involve complex legal issues. Therefore, the comparative simplicity of the issue was a factor favourable to Mr Scott being allowed to appear for Image Bollards.
44. The objects of the FM Act and the FMC Rules provide, in essence, for informal and streamlined procedures to assist in the just, efficient and economical resolution of proceedings, and in which parties are required to assist the Court to avoid undue delay, expense and technicality. Those objects and rules are complemented by s.548(3) of the FW Act which provides for the Court to act in an informal manner without regard to legal forms and technicalities in small claims proceedings. To allow the Managing Director of Image Bollards to appear in this comparatively simple and straightforward case would appear to be consistent with the objects of the FM Act, the FMC Rules and s.548(3) of the FW Act.
45. Given the simplicity of the matter the Court was of the view that Image Bollards could be effectively represented without prejudice by Mr Scott in these proceedings….[5]
[5] Image Bollards at paras.39-45 per Lucev FM (footnotes omitted).
At hearing the Court granted leave to Mr Passeck to appear for
Sea Breeze Resort. The Court did so for the following reasons:
a)the facts were not complex, and the legal issue to be determined was clear;
b)the objects and purposes of the FM Act and FMC Rules,[6] as well as the FW Act provisions concerning the Court’s conduct of small claims proceedings,[7] and case management considerations:
[6] FM Act, s.3(a) and (b), FMC Rules, r.1.03.
[7] FW Act, s.548(3).
i)generally; and
ii)for a case listed for one day at a country location in Western Australia,
meant that there would be a quicker, cheaper hearing if leave were granted;
c)
it appeared that Mr Passeck understood both the process and the legal issues sufficiently to enable him to properly represent
Sea Breeze Resort;
d)
Mr Passeck and his wife are the directors and shareholders of
Sea Breeze Resort, and Mr Passeck is the Managing Director, making it appropriate for him to represent Sea Breeze Resort in a small claims matter, notwithstanding that Mr Passeck was a witness, and the only witness, for Sea Breeze Resort, but, in that regard, the Court was of the view that because the facts were within a limited compass, any difficulties that arose from
Mr Passeck being both advocate and witness could be dealt with by appropriate directions from the Court; and
e)Ms Wills did not appear to be prejudiced by Mr Passeck’s appearance for Sea Breeze Resort, and she took no objection to his appearance.
Ms Wills’ claims
Ms Wills says that:
a)she had previously been employed by Sea Breeze Resort prior to leaving and going to work at the Pot Shot Resort in Exmouth;[8]
b)
she was employed at the Pot Shot Resort sometime in 2009,[9] and whilst still employed there, she received a telephone call from
Mr Jim Williams, the acting Manager of Sea Breeze Resort, requesting her to work for Sea Breeze Resort as it had a desperate need for a housekeeper;[10]
c)she was subsequently employed as a housekeeper by Sea Breeze Resort from 24 November 2009 until 27 April 2010;
d)Sea Breeze Resort did not provide her with any notice of dismissal;
e)during later discussions with Mr Williams, she was informed that on her last day of employment bedbugs had been found in a room in Block 1, and that was why she had been “fired”;[11] and
f)her claim is for two weeks pay, which she says amounts to $1,000.[12]
[8] Transcript, page 6.
[9] Transcript, page 6.
[10] Transcript, page 7.
[11] Transcript, page 10; see also page 11.
[12] Transcript, pages 14-15.
Sea Breeze Resort’s grounds of opposition to Ms Wills’ claims
Sea Breeze Resort opposes the orders sought by Ms Wills. Relevantly, its grounds of opposition are that:
a)Ms Wills was employed on a casual basis, and work was not performed on a regular and systematic basis, and therefore she could not have had any reasonable expectation of continuing employment;
b)Ms Wills has no entitlement to notice of dismissal under any industrial instrument;
c)Ms Wills has not been dismissed, and Sea Breeze Resort simply decided not to offer her any further work;
d)Ms Wills did not contact Sea Breeze Resort for three weeks after the last day she worked there, which demonstrates that she understood she would not be offered any further hours;
e)there are no outstanding wages owing; and
f)all hours recorded on Ms Wills’ timesheets are accounted for on Ms Wills’ payslips, which were signed by Ms Wills.
Each of the above matters was the subject of evidence from Mr Passeck.[13]
[13] Transcript, pages 16-20.
Small claims jurisdiction – basis
Section 548 of the FW Act provides as follows:
(1) Proceedings are to be dealt with as small claims proceedings under this section if:
(a) …
(b) the order relates to an amount referred to in subsection (1A); and
(c) …
(1A) The amounts are as follows:
(a) an amount that an employer was required to pay to, or on behalf of, an employee:
(i) under this Act or a fair work instrument; or
(ii) because of a safety net contractual entitlement; or
(iii) because of an entitlement of the employee arising under subsection 542(1);
(b) …
Ms Wills’ claim for payment in lieu of notice on termination is within jurisdiction because:
a)it concerns an amount that Sea Breeze Resort is allegedly required to pay under the FW Act;[14] and
b)the claim relates to a National Employment Standard,[15] the alleged entitlement also being a “safety net contractual entitlement”.[16]
[14] FW Act, ss.548(1A)(a)(i) and 117(3)(a).
[15] FW Act, s.61(3).
[16] FW Act, ss.12 (definition of “safety net contractual entitlement”), 61(2)(l) and (3), 117(3) and 548(1A)(a)(ii).
Small claims jurisdiction – limitation
Under s.548(2) of the FW Act and r.45.11(1) of the FMC Rules, the Court may not, in a small claims matter, award more than $20,000, or a higher amount prescribed by the Fair Work Regulations 2009 (Cth).[17] At this stage there is no such amount prescribed by the
FW Regulations. Ms Wills’ claim does not exceed the $20,000 limit.
[17] “FW Regulations”.
The Court was left in no doubt that Ms Wills had a deep sense of grievance about the manner in which she came to no longer be working for Sea Breeze Resort,[18] and in her evidence and submissions she referred to the “unfairness” of her “dismissal”.[19] This Court has no jurisdiction to determine whether, even if there was a dismissal, that dismissal was unfair, that being a matter within the jurisdiction of Fair Work Australia.[20] In Wills v Passeck the Court held that it was without jurisdiction to hear that part of this application as originally filed relating to a claim of unlawful termination under s.772 of the FW Act, because of the absence of a certificate from Fair Work Australia under s.777 of the FW Act.[21]
[18] Transcript, page 30.
[19] Transcript, pages 5 and 14.
[20] FW Act, s.394(1).
[21] Wills v Passeck at paras.4-5 per Lucev FM.
The reasons for Ms Wills’ termination, about which she, and also
Mr Passeck, went into detail, and which lie at the heart of a strong sense of grievance by Ms Wills, are not, for reasons set out in detail below, ultimately relevant to the issue of whether Ms Wills was paid notice in lieu on termination of employment.
Was Ms Wills a casual employee?
A single issue is capable of determining this matter. That issue is whether Ms Wills was a casual employee whilst employed by
Sea Breeze Resort.
There is no evidence in this case of a contractual entitlement to payment on termination of employment. There is also no evidence of such an entitlement under an industrial instrument, such as an award or enterprise or industrial agreement, or any other form of statutory workplace agreement.
There is however a statutory entitlement to pay in lieu of notice on termination of employment of one week’s pay for an employee with not more than one year’s continuous service,[22] subject to certain exclusions. One of the exclusions is for persons who are casual employees.[23]
[22] FW Act, s.117(3).
[23] FW Act, s.123(1)(c).
In MacMahon Mining Services Pty Ltdv Williams[24] the Federal Court, in dismissing an appeal from this Court,[25] observed that:
… the Full Federal Court said in Hamzy v Tricon International Restaurants [2001] FCA 1589; (2001) 115 FCR 78 (Hamzy), at [38]; … that "casual employee" embraces "an employee who works only on demand by the employer" and that "the essence of casualness is the absence of a firm advance commitment as to the duration of the employee's employment or the days (or hours) the employee will work".[26]
[24] (2010) 201 IR 123; [2010] FCA 1321 (“MacMahon Mining Services Appeal”).
[25] In MacMahon Mining Services Appeal three judgments of this Court were under appeal, but for relevant purposes the judgment under appeal was Williams v MacMahon Mining Services Pty Ltd (2009) 231 FLR 59; [2009] FMCA 511 (“MacMahon Mining Services”).
[26] MacMahon Mining Services Appeal IR at 131 per Barker J; FCA at para.35 per Barker J.
In MacMahon Mining Services this Court:
a)observed that whether a person was a casual employee was a question of fact;[27]
b)set out the following observations concerning the traditional test for what constitutes a casual employee:
[27] MacMahon Mining Services FLR at 65 per Lucev FM; FMCA at para.28 per Lucev FM.
29 In Doyle v Sydney Steel Co Ltd, Starke J said:
"The description "casual worker" is not one of precision: it is a colloquial expression, and where, upon all the facts, there is a reasonably debatable question whether the work is casual or regular, the question is one of fact ..."
30 In Doyle Dixon J said:
"But unfortunately what is casual employment is ill defined. Indeed it is scarcely too much to say that it seems open to a tribunal of fact to treat most forms of intermittent or irregular work as casual."
31 In Doyle McTiernan J considered the expression "is not capable of exact definition", and that "[e]ach case is to be determined on its own facts ..."
32 In Reed v Blue Line Cruises Ltd, Moore J observed:
"What then, is likely to have been the feature of the employment at the time of the engagement that would characterise it as an engagement on a casual basis? Plainly it involves a notion of informality or flexibility in the employment following the engagement ... .
A characteristic of engagement on a casual basis is, in my opinion, that the employer can elect to offer employment on a particular day or days and when offered, the employee can elect to work. Another characteristic is that there is no certainty about the period over which employment of this type will be offered. It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual. - fn_UNREP-AUS-624831-EXTV0002-69623-FN.36#fn_UNREP-AUS-624831-EXTV0002-69623-FN.36"
33 In Melrose Farm Pty Ltd trading as Milesaway Tours v Milward the Western Australian Industrial Appeal Court said:
"In Australian law, the expression "casual employee" or "casual employment" are expressions with no fixed meanings: ... Reed v Blue Line Cruisers Ltd (1996) 73 IR 420, 425 (Moore J) ... the issue before Moore J was whether Reed was a casual employee as that expression appears in reg 30B of the Industrial Relations Regulations (Cth). Having observed that "casual employee" has no fixed meaning in Australian domestic law ... went on to consider the characteristics of casual employment ... :
A characteristic of engagement on a casual basis is, in my opinion, that the employer can elect to offer employment on a particular day or days and when offered, the employee can elect to work. Another characteristic is that there is no certainty about the period over which employment of this type will be offered. It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual (425).
In Hamzy v Tricon International Restaurants [2001] FCA 1589: 115 FCR 78 the Full Court of the Federal Court said ... that the essence of casual employment is the absence of a firm advance commitment as to the duration of the employee's employment or the days (or hours) the employee will work, but that is not inconsistent with the possibility of the employee's work pattern turning out to be regular and systematic.
There is no one definitive test to distinguish between casual and permanent employees. There are several features characteristic of casual employment.[28]
c)in relation to the circumstances of the particular case said that:
36 The Court finds that there was an expectation that Mr Williams would be available, on an ongoing basis, to perform the duties required of him, in accordance with the roster, until such time as the Contract of Employment came to an end. This was not a Contract of Employment where the availability of work was the subject of significant fluctuation from one day, or one week, or one month, to the next so as to make the work, and hours of work, irregular and uncertain. Rather, the work was performed in accordance with a stable, organised and certain roster, with certainty of working hours, ongoing until the Contract of Employment was ended, either for some cause or because the head contract between Argyle and Macmahon Mining had come to an end. In this case, Mr Williams' Contract of Employment was terminated for cause by Macmahon Mining, and the work, and the availability of work, continued on as it had prior to his termination. Thus, the employment was regular, and was work in accordance with a roster published in advance, and in this case, significantly in advance. Macmahon Mining argued that it was necessary to have a roster published significantly in advance and to make that available to employees because of the fly-in/fly-out nature of the work, the remote location and the nature of the work concerned. True that may be, but it does little more than reinforce the fact that the work was regular and ongoing and more consonant with permanent full time employment than casual employment.[29]
[28] MacMahon Mining Services FLR at 65-66 per Lucev FM; FMCA at paras.29-33 per Lucev FM (footnotes omitted).
[29] MacMahon Mining Services FLR at 67 per Lucev FM; FMCA at para.36 per Lucev FM.
In relation to whether Ms Wills was a casual employee the evidence was as follows:
a)there was a specific admission in cross-examination by Ms Wills that she was a casual employee whilst employed by Sea Breeze Resort;[30]
[30] Transcript, page 13.
b)there was unchallenged evidence by Mr Passeck that Ms Wills was a casual employee whilst employed by Sea Breeze Resort;[31]
[31] Transcript, page 17.
c)Ms Wills confirmed her signature on a tax file number declaration, signed by her on 26 November 2009, identifying the basis on which she was paid as being that of “Casual employment”;[32]
[32] Transcript, page 13; Exhibit 2.
d)payroll advice for the fortnightly periods from 23 November 2009 to 9 May 2010 for payment of wages to Ms Wills by Sea Breeze Resort indicate the following hours worked per fortnight:[33]
[33] Exhibit 4.
Fortnight commencing
Hours worked
23.11.2009
21.75
7.12.2009
14
21.12.2009
65.5
4.1.2010
70
18.1.2010
55.75
1.2.2010
51.5
15.2.2010
24
1.3.2010
56
15.3.2010
34.5
29.3.2010
10
12.4.2010
21
26.4.2010
8.5
e)an examination of timesheets[34] completed by Ms Wills shows significant variance in starting and finishing times, the number of hours worked each day, and the days worked on each week, which is consistent with the variation in hours shown in the payroll advice summaries set out above. For example:
[34] Exhibit 3.
i)in the fortnight commencing 23 November 2009 Ms Wills:
A.worked on six days (Tuesday, Friday and Sunday in the first week of the fortnight, and Tuesday, Thursday and Friday in the second week of the fortnight) and had four different starting times of 8.30am, 1.00pm (twice) and 12.00noon (three times);
B.had four different finishing times, being 3.00pm (twice), 3.15pm, 3.30pm (twice) and 4.30pm; and
C.worked variable hours on each day, within a range of two hours to six and three quarter hours, working two hours, three hours, three and a half hours (on three days) and six and three quarter hours on the six days on which she worked in the fortnight;
ii)in the fortnight commencing 4 January 2010 Ms Wills:
A.worked all 14 days and had ten different starting times of 7.30am, 8.30am, 9.00am (twice), 12.06pm, 12.30pm (twice), 1.00pm, 1.30pm (twice), 1.45pm (twice) and 2.00pm;
B.had 11 different finishing times being 12.00noon, 2.00pm, 4.20pm, 4.30pm, 5.00pm, 5.15pm, 5.25pm, 5.30pm, 6.00pm (four times), 6.15pm and 7.00pm; and
C.worked variable hours on each day, within a range of two hours to 11.5 hours with the working hours being two hours, two and a half hours, three and a half hours (twice), three and three quarter hours, four hours (twice), five hours (twice), five and three quarter hours, five hours fifty minutes, six hours, eight hours and 11.5 hours;
iii)in the fortnight commencing 15 February 2010 Ms Wills:
A.worked on six days (Monday, Tuesday and Thursday in the first week of the fortnight, and Wednesday, Thursday and Sunday in the second week of the fortnight) and had five different starting times being 9.00am, 12.30pm, 12.45pm (twice), 1.00pm and 1.45pm;
B.had five different finishing times being 3.30pm (twice), 4.00pm, 4.30pm, 4.45pm and 6.00pm; and
C.worked variable hours on each day within a range of two and three quarter hours to seven hours, working two and three quarter hours (twice), three and three quarter hours, four hours, four and a quarter hours and seven hours on the six days of the fortnight on which she worked;
iv)in the week commencing 15 March 2010 Ms Wills:
A.worked on two days (being Tuesday and Wednesday in the first week, and no days in the second week) with a starting time of 1.00pm on both days;
B.had two different finishing times of 4.30pm and 5.30pm; and
C.worked three and a half hours on one day and four and a half hours on the other day.
The timesheets for the other fortnights show similar variation in days worked, start and finish times, and the range of hours worked.
Based on the payroll and timesheet records it is clear that Ms Wills’ employment was the subject of significant fluctuation from week to week in:
a)the days on which she worked;
b)the starting and finishing times on the days on which she worked; and
c)the number of hours which she worked on the days when she worked.
Based on that fluctuation the Court concludes that the work, and hours of work, were irregular and uncertain. The payroll and timesheet records establish that sometimes there was as little as two hours work, but on one occasion as much as 11.5 hours work. In summary,
Ms Wills had no fixed hours, no fixed days, and no roster.
Ms Wills’ own evidence established that she worked at the Sea Breeze Resort on an as-required basis, to do whatever work it was necessary for her to do, on the days on which she worked in her capacity as a housekeeper. When asked, by the Court, whether there was “any particular arrangement in terms of days of the week and hours that you would work”, Ms Wills responded “Oh heavens no. Heavens no.”[35]
[35] Transcript, page 7; see also pages 8 and 15-16.
Together with the admission in Ms Wills’ oral evidence and the admission in the tax file number declaration form, that her employment was casual, the above factors are sufficient for the Court to conclude that Ms Wills’ employment with Sea Breeze Resort was on a casual basis.
The Court notes that the payroll advice indicates that Ms Wills was paid an hourly rate of $18.50 throughout her employment by Sea Breeze Resort in 2009 and 2010. It is not possible to tell from the evidence in this case whether that amount included any casual loading. Ms Wills said that the hourly rate did not include any casual loading.[36] However, irrespective of whether Sea Breeze Resort actually paid Ms Wills a casual loading, there is, for reasons set out above, no doubt that Ms Wills was a casual employee whilst employed by Sea Breeze Resort.
[36] Transcript, page 9.
It therefore follows that Ms Wills has no entitlement under s.117(3) of the FW Act to payment of notice in lieu on termination because she was a casual employee, and a casual employee is excluded, by reason of s.123(1)(c) of the FW Act, from any entitlement to payment in lieu of notice on termination.
Conclusion
The Court has concluded that because Ms Wills was a casual employee she has no entitlement to payment in lieu of notice on termination by Sea Breeze Resort, and her application will therefore be dismissed.
Having regard to:
a)the provisions of s.570(2) of the FW Act;
b)the fact that both parties were not represented by lawyers; and
c)the fact that at least part of the claim was within the Court’s small claims jurisdiction, albeit that it was not made out,
there will be no order as to costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date: 17 June 2011
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