Zylstra v Nocera Group Pty Ltd
[2017] FCCA 2289
•20 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZYLSTRA v NOCERA GROUP PTY LTD | [2017] FCCA 2289 |
| Catchwords: INDUSTRIAL LAW – Set-off – whether set-off agreement proved – none proved – post office worker – various entitlements sought – no evidence from respondent beyond evidence in relation to set-off – sum claimed ordered. |
| Legislation: Fair Work Act 2009 (Cth) Federal Circuit Court Rules 2001 (Cth), Div.45.4 General Retail Award 2010 |
| Cases cited: Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 Toyota Motor Corp Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106 Joshua D Wilson, ‘Contractual Composition, Construction and the Matrix of Fact’ (March/April 2003) 89 Australian Construction Law Newsletter 36 |
| Applicant: | ROSLYN ZYLSTRA |
| Respondent: | NOCERA GROUP PTY LTD |
| File Number: | MLG 1039 of 2017 |
| Judgment of: | Judge Wilson |
| Hearing date: | 12 September 2017 |
| Date of Last Submission: | 12 September 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 20 September 2017 |
REPRESENTATION
| Applicant in person |
| Counsel for the Respondent: | Ms S. Kelly |
| Solicitors for the Respondent: | Goddard Elliot |
I DECLARE THAT the respondent contravened the Postal Services Award 2003 and the General Retail Award 2010 by failing to pay the applicant wages, overtime, penalty rates, allowances and superannuation.
I ORDER THAT
by no later than 4.00 p.m. on 4 October 2017,
the respondent pay the applicant the sum of $6,702.79.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1039 of 2017
| ROSLYN ZYLSTRA |
Applicant
And
| NOCERA GROUP PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
By application filed 22 May 2017 the applicant Roslyn Zylstra
sought an order directing the respondent Nocera Group Pty Ltd to pay her $6,780.79. This was a “small claim” for the purposes of the
Fair Work Act2009 (Cth) and for the purposes of Division 45.4 of the Federal Circuit Court Rules 2001 (Cth).
The amount sought by the applicant was made up of a collection of separate claims for –
a)unpaid wages of $3,346.55;
b)unpaid overtime of $770.00;
c)penalty rates of $145.64;
d)allowances of $680.50; and
e)
unpaid superannuation of $1,838.10 over the period
5 October 2016 to 9 May 2017.
The applicant asserted that she was entitled to payment of those amounts pursuant to the terms of various awards, each covering a different period of time. In the period August to September 2012,
the applicant said the terms of the Postal Services Award 2003 applied. She said that in the period from September 2012 and August 2014 the same award applied but she was then no longer a casual employee as she had been in August and September 2012 and instead was a
part-time postal services employee from September 2012 to August 2014. The applicant said that in the period from August 2014 until May 2016 she was a part-time postal services employee but then under the provisions of the General Retail Award 2010, classification level 5 as well as the Fair Work Commission award, classification level 1.
When this proceeding was first returnable, Paul Nocera of the respondent said he was not ready to commence the trial and sought a short adjournment which I granted until 12 September 2017. On the latter date, Ms S. Kelly of counsel sought leave to appear on behalf the respondent. She required leave to do so. She contended that the respondent wished to raise a threshold point that she said was determinative of all but a very small portion of the claims made, namely, that by reason of an agreement reached in June 2014,
the parties had agreed to a set-off pursuant to which the applicant agreed to an hourly rate and in the process agreed to forego the entitlements she claimed in this case.
Synopsis
For the reasons that follow, I reject the contention that any agreement in the nature of a set-off was reached in June 2014. In my judgment all but one of the amounts claimed by the applicant are immediately payable.
Relevant factual setting of this dispute
It was common ground that from the date of her commencement of employment with the respondent until June 2014, the applicant worked in a non-managerial capacity. The respondent at all relevant times carried on business as a franchisee conducting a post office and postal services from premises in Karingal, Victoria. Mr Nocera of the respondent gave evidence that the business was sold in March 2017.
It was common ground that in June 2014 the contractual arrangements between the applicant and the respondent were modified but only in relation to the applicant’s job description, her duties, the hourly rate at which she was to be paid and the hours she was required to work.
Each of those is detailed in the passages that follow.
The so-called set-off agreement
On an unspecified date in June 2014, a meeting took place between the applicant and Mr Nocera of the respondent. The place and subject matter of the discussions were disputed between the parties.
The applicant said the discussion took place at a coffee shop in a shopping centre away from her place of employment. Mr Nocera contended that the discussion took place in a room at the rear of the post office at which the applicant worked. The place at which the meeting took place was unimportant, except insofar as it bore upon broader issues of credit and credibility, especially whose version of the discussion I should prefer.
Let me state at the outset that I accept the version of those discussions as given by the applicant. Insofar as her version is at odds with the version given by Mr Nocera, I reject Mr Nocera’s version of those discussions. I say that the several reasons. First, in my view the applicant’s command of the details of the conversation was vastly more reliable than was Mr Nocera’s. To that end, the applicant spoke with precision, identifying who said what to whom during the course of the conversation. She was consistent in the version that she gave, speaking with real conviction. Conversely, Mr Nocera spoke in generalities, often using the phrase “I would have said” a particular thing, thereby demonstrating to me that he had no precise recollection of the event at best or, at worst, he was guessing about his evidence.
Next, in many respects Mr Nocera was argumentative when giving his evidence. I had to pursue him many times to focus on the question that he was being asked rather than his making a speech on a subject of his choosing that he considered best enhanced his case in this litigation.
Next, on several subjects, after stating a point with seeming authority, Mr Nocera retreated from the position when pressed on the point.
The same could not be said of the applicant who gave her evidence consistently, authoritatively and without deviation from the main thesis she was advancing on any particular point.
Next, Mr Nocera struck me as a person focused on big picture items rather than the detail. Conversely, for the applicant it was of particular significance to her that in June 2014 she was being asked to assume a much broader role than hitherto she had undertaken, that the hourly rate for which she sought compensation was greater than the rate at which she had been previously paid and that the hours that she was being asked to work were greater than those that she had worked up until that point. I found that on the balance of probabilities it was more probable that she was more focused on the subject of discussions than was Mr Nocera. He spoke in generalities, as I have already said.
For example, he indicated that on matters relating to his salary payments and outgoings he deferred to his bookkeeper. Yet when pressed about the need for the proprietor of any small business to keep attuned to the relationship between revenue and outgoings at any point in time, Mr Nocera spoke in precise percentage terms and with seemingly accurate command of the details. I was suspicious of his answer that he deferred to his bookkeeper concerning all details relating to outgoings and that he was unable to speak about those details. Conversely, if he was correct in that regard, he was derelict in his obligations as a company director and as a proprietor of a commercial entity that employed staff.
In short, I was left in the position that I was unable to trust the evidence given by Mr Nocera. In saying that I carefully examined not only what Mr Nocera said but his behaviour in the witness box. I watched and observed him closely when giving his responses to questions put by the applicant as well as by me. I listened carefully to the way he feigned an inability to answer the question on occasions while concurrently making speeches that he considered best advanced his case. He had to be brought back many times to the question being asked of him.
He was a difficult witness and on occasions, borderline obdurate.
The applicant was the reverse as a witness. I was impressed by her evidence. I was unimpressed by Mr Nocera’s evidence.
Before turning to the contentious subject of the discussions in
June 2014, it is desirable to put this case in context.
The applicant said her work involved performing all duties associated with the daily running of a post office. More specifically, she said her tasks involved sorting mail, balancing terminals, banking, issuing passports, undertaking stock control, undertaking stock reconciliation, processing tax file numbers, the transfer of land titles, selling merchandise, supervising three to four staff at all times and calculating staff weekly timesheets. In all, she worked in that capacity for almost
five years. On Monday and Wednesday, her hours were between
8:55 a.m. to 5:10 p.m. On Thursday her hours worked were 8:55 a.m. to 12:55 p.m. On Friday her hours were 8:55 a.m. to 5:35 p.m. She did not work on any Sunday and she took a rostered day off on Tuesday.
The applicant’s documentation to commence this proceeding included detailed particulars of the various bases of her claims. She attached to the Form 5 filed 22 May 2017 appendices A to F so as to substantiate her claims to unpaid wages, overtime, penalties, allowances and superannuation.
Despite the prohibition on legal representation in a small claim without leave of the court, the respondent sought legal assistance from a firm of solicitors (without first obtaining leave to do so) and produced a document entitled “Respondent’s outline of submissions”[1] as well as a document entitled “Statement of Paul Nocera”.[2]
[1] Filed 8 September 2017.
[2] Ibid.
When this proceeding was called on for trial on 12 September 2017, Ms Kelly announced her appearance representing the respondent for which she sought leave. After discussion, it became apparent that she wished to agitate what she described as the “set-off point”,
a proposition that involved a legal submission as well as an examination of certain facts. The applicant was opposed to my granting Ms Kelly leave to appear. It struck me that the set-off point may have had far reaching consequences to the applicant’s claim and that it was best for me to understand it in detail. After I heard from Ms Kelly the applicant said she was unable to provide any meaningful response to the propositions of law that Ms Kelly advanced.
I gave Ms Kelly leave to argue the legal points in relation to the set-off point. However, I did not grant her leave to cross-examine the applicant with a view to establishing the factual basis upon which the legal submissions could have been advanced.
As it transpired, in view of the evidence Mr Nocera gave about the conversation in June 2014, I concluded that no agreement was reached in the nature of the set-off as contended for by Ms Kelly.
By reason of that finding, it then became necessary to examine each of the separate elements of claim agitated by the applicant.
At this stage I must record that Mr Nocera appeared to have adopted the position in this case that he was content to rely on the success or failure of the set-off point. He adduced no meaningful evidence that answered any of the claims agitated by the applicant. In the dying moments of this case, Mr Nocera said he wanted to put before me a bundle of documents that addressed the uniform claim and other bank statements. He said he had not shown those documents previously to the applicant. I told him that this was not trial by ambush and that if he wanted to rely on any documentation he ought to have, but failed to, adduce that documentation in a proper way upon notice to the applicant. He admitted he had not given advance notice to the applicant of the documents upon which he wanted to rely. The applicant said her eyesight was failing and she was unable to read whatever documents Mr Nocera brought to her attention.
It struck me as a peculiar position that the respondent consulted solicitors, incurred the expense involved in the preparation of the outline of the respondent’s submissions, and the costs associated with the preparation of Mr Nocera’s statement yet his statement did not proceed upon the footing that the set-off point may not succeed and that evidence of factual matters may have been required. At all events,
very little in the way of factual information was put forward by
Mr Nocera in his statement. He did that at his peril. I was not willing to permit him to ambush the applicant in the way he intended by relying upon documents not previously disclosed. At all events, he made the request to rely on extra documents after this small claim had been proceeding for over two and a half hours of court time. A high degree of disproportion existed between permitting the respondent to rely on a bundle of documents not previously disclosed or identified, especially after expending two and a half hours of court time in a case where a little under $7,000.00 was being claimed.
I refused Mr Nocera’s application.
Let me now turn to the details of the meeting in June 2014.
The applicant said that the meeting took place in a coffee shop in the centre of the Karingal Hub. She said she told Mr Nocera that she had spoken with the previous manager saying that the post office was large with five terminals and therefore the applicant felt an appropriate remuneration rate was $25.00 an hour. She said Mr Nocera said he would not pay that. She said he responded by suggesting $21.00 per hour. He said he might stretch that to $22.00 per hour. The applicant said she responded by telling him that he was already paying the existing manager $23.00 per hour, a proposition he disputed.
The applicant said that eventually Mr Nocera said that he would pay her $23.00 per hour.
The content of paragraph 13 of Mr Nocera’s witness statement was specifically put to the applicant. She was asked whether he said –
Okay, Ros. But that $23 will encompass (a) any training you might have to stay back for; (b) any overtime you have to do to run the shift in my absence; and (c) all other entitlements.[3]
[3] Transcript of proceedings, 12 September 2017 at p.33.
In response the applicant said –
Absolutely incorrect. It never – was never a part of the discussion.[4]
[4] Ibid.
The applicant said the discussion in the overall at the coffee shop took about half an hour. She affirmed that Mr Nocera and her were discussing no more than a variation as to the role and an increase in her remuneration and that all other terms of her contract would remain.
When questioned by Mr Nocera, the applicant admitted she had no prior experience as a manager. She said she was told by the previous manager that the applicant should not take on the role lightly and that she should not do it for anything less than the previous manager had done it for.
Mr Nocera put to the applicant in his own words that the rate of $23.00 per hour would incorporate any training or staying back that she had to do with staff and any extra work that she may have had to take home,
to which she answered –
No, absolutely not.[5]
[5] Transcript of proceedings, 12 September 2017 at p.36.
Mr Nocera gave evidence about the meeting in June 2014. He said the meeting took place at the back of the post office shop. He said the applicant asked for $25.00 per hour. He responded by saying that he could only afford $21.00 or $22.00 per hour and that he was surprised when she asked for $23.00 or $22.00 per hour. He said he told the applicant –
Okay, I will give you 23 an hour … Ros, if you have to come back, and sometimes come back for training after work where the other staff have to come back for an hour just to keep them abreast of new policies and new things, if you have to come back or if you have to do anything out of the ordinary, that would all be incorporated in the $23 above-award rate.[6]
[6] Transcript of proceedings, 12 September 2017 at p.44.
According to Mr Nocera, she said she would do it.
When asked whether by her agreeing to $23.00 an hour the applicant was limiting her daily entitlement in any way, Mr Nocera said
“not completely”.[7] He said he was offering her an extra two dollars over the award. When asked whether in staying back after work the additional hours were incorporated into the rate of $23.00 an hour,
he said he did not discuss the spread of hours. When asked whether he expected her to render a fee to Mr Nocera if she worked for many hours beyond the hypothetical one extra hour after her prescribed hours of work, Mr Nocera said that was not discussed.
[7] Ibid.
Mr Nocera was specifically asked for the precise terms
of the conversation about $23.00 per hour encompassing
“all other entitlements”to which he said he did not single out any specific entitlement for discussion. He specifically said he did not single out uniform allowances for discussion. Mr Nocera said that when he spoke to the applicant about coming back to work after the close of the shop or taking work home, they were all overtime and penalties in the broader sense. However he said there was no specific discussion about it.
It seemed to me that in key critical respects, various matters were not expressly discussed in the way for which Mr Nocera contended. Specifically, there was no express discussion about entitlements. Instead, Mr Nocera assumed that the discussion about entitlements incorporated such things as uniform allowances, overtime and penalties. However, those items were not expressly identified still less were they the subject of agreement. When comparing the general aspects of Mr Nocera’s evidence on the point as against the applicant’s emphatic denials that the words alleged were actually said, for reasons already given I prefer the applicant’s version of events.
In those circumstances, I reject the suggestion that anything in the nature of a set-off agreement was agreed.
As recently as 4 August 2017, Lee J of the Federal Court of Australia said the following about contractual composition and construction in Avenia v Railway & Transport Health Fund Ltd[8] –
The rights and liabilities under a contract are to be determined objectively, by reference to a textual as well as a contextual analysis (that is, by reference to the entire text of the contract as well as any contract or document referred to in the text) and purpose. Ordinarily, this process of construction is possible by reference to the contract alone but sometimes, where there is constructional choice, recourse to events, circumstances and things external to the contract is necessary (including the genesis of the transaction and the commercial background): see Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [2015] HCA 37; (2015) 256 CLR 104 at [46]-[52] per French CJ, Nettle and Gordon JJ; [107]-[113] per Kiefel and Keane JJ; [119]-[121] per Bell and Gageler JJ, and the observations of Kiefel, Bell and Gordon JJ in Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 91 ALJR 486 at [16]-[17], citing Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640.[9]
[8] [2017] FCA 859.
[9] [2017] FCA 859.
In debate with Ms Kelly I brought to her attention an ageing authority of the Honourable Justice Gillard of the Supreme Court of Victoria in Howtrac Rentals Pty Ltd v Thiess Contractors (NZ) Ltd.[10] There,
his Honour examined in extraordinary detail the proper legal analysis which a court must undertake when ascertaining the phenomenon of agreement. His Honour said that whether or not a binding concluded contract in law has come into existence is a question of fact.
His Honour said the plaintiff has the burden of persuading the court that the agreement was reached with respect to essential terms to effect the commercial purpose and that the parties intended to be bound by that agreement.
[10] [2000] VSC 415.
His Honour said that in determining the question, a court considers all relevant facts which include facts which occurred after the date
of the alleged contract, citing indisputable authority such as Hussey v Horne-Payne,[11] Howard Smith & Co Ltd v Varawa[12] and Toyota Motor Corp Australia Ltd v Ken Morgan Motors Pty Ltd.[13]
[11] (1879) 4 App Cas 311.
[12] (1907) 5 CLR 68.
[13] [1994] 2 VR 106.
Gillard J said the issue involved a three-fold enquiry. First, did the parties arrive at a consensus? Second, if they did, was the consensus such that it was capable of forming a binding contract in the circumstances? Third, did the parties intend that the consensus at which they arrived should constitute a binding contract? His Honour cited the decision of the Court of Appeal of the Supreme Court of New South Wales in Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd.[14]
[14] (1985) 2 NSWLR 309, 326.
During debate with Ms Kelly I referred to her an article I wrote some time ago called ‘Contractual Composition, Construction and the Matrix of Fact’.[15]
[15] Joshua D Wilson, ‘Contractual Composition, Construction and the Matrix of Fact’ (March/April 2003) 89 Australian Construction Law Newsletter 36.
I was not persuaded that an agreement in the nature of a set-off agreement was established. In view of my conclusions about there being no express agreement of the sort for which the respondent contended, it was unnecessary to examine the complex learning about the application of set-offs in an industrial context as canvassed in such cases as James Turner Roofing Pty Ltd v Peters[16] and Poletti v Ecob(No 2).[17] Helpfully, but as it happened unnecessarily, Ms Kelly brought to my attention the decision of the Full Court of the Federal Court of Australia in Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate.[18]
[16] (2003) 132 IR 122.
[17] (1989) 31 IR 321.
[18] [2015] FCAFC 99.
In view of my dismissal of the set-off point it became necessary to examine each of the separate claims brought by the applicant in this proceeding. As mentioned above, Mr Nocera and the respondent led no evidence on the substantive aspects of the claim. Having failed on the set-off point, the only material before me in relation to the substantive claims was the applicant’s.
Unpaid wages
The applicant claimed as unpaid wages –
a)the sum of $564.55 made up in accordance with appendix A of her detailed claim; plus
b)the sum of $2,782.00 made up in accordance with appendix F.
The total of those amounts was $3,346.55.
So far as the component of $564.55 was concerned, the applicant calculated that figure on the basis that the respondent had paid her for 996 hours in total. She said the total number of hours which she should have been paid was in fact 1008.5 hours. In other words, she said the respondent had understated the correct number of hours worked by 12.5 hours at the rate of $20.96 per hour.
The detail of the time records were set out in appendix A, a detailed, column-by-column recital of the days she worked, the total hours she worked, the total number of overtime hours she worked and the dates on which a 25% loading was payable. She totalled on a week-by-week basis the amount actually paid by the respondent and her calculations of amounts that were unpaid. The amount unpaid on a week-by-week basis varied in magnitude – in one week it was as small as $5.77,
in another $4.22 and in another still it was 53 cents. But in the main, each week the shortfall between the sum the applicant was paid and the amount she should have been paid was less than $50.00, according to the applicant. When aggregated, those amounts came to $564.55.
Mr Nocera on behalf the respondent told me the respondent denied owing any amount to the applicant. He said the applicant had been paid for the hours she worked. He rejected the component of the claim based on 12.5 hours worked but unpaid. So far as Saturday shift payments were concerned, the respondent stated in its notice of contention –
a)payments were made by the respondent to the applicant of $2.04 per hour which, when calculated against the number of hours worked of 996, produced a figure amount over the award the respondent paid to the applicant of $2,031.84; and
b)the respondent was entitled to an offset of the payments made over the award against shift penalties and when that offset was made, the respondent did not owe the applicant any amount.
Several things must be said about this component of the claim.
First, I have already ruled that no set-off agreement was made. In those circumstances the proposition advanced by the respondent that no amount is due is to be rejected. The amount claimed is properly due and payable.
In my judgment, based on the arithmetic set out in appendices A and F, the sum of $564.55 was owing as was the sum of $2,782.00 making in total $3,346.55. That amount must be paid by the respondent to the applicant.
Mr Nocera faintly advanced as a reason for not punctually paying amounts due that his accountant was overseas. I will not countenance that as a reason for non-payment of sums due. All amounts ordered pursuant to these orders must be paid within 14 days.
Overtime
Under this component of the claim, the applicant sought payment of the sum of $770.00. That amount was made up of two small amounts namely –
a)$650.00 for working while on rostered days off; and
b)$120.00 from mail sorting.
The factual setting of this component of the claim appeared in appendix C. Doing the best she could the applicant recognised that the amount of this component of the claim was not precisely accurate arithmetically because she had been unable to verify aspects against hard copy records. That said, in essence the applicant said that on her rostered day off she was required to attend work one hour prior to opening so as to sort the mail.
The respondent stated that the applicant worked for three hours on
5 January 2016 and for 5 hours on 16 February 2016, deriving the total amounts, so the respondent said, as follows –
a)$31.44 on 5 January 2016; and
b)$73.24 on 16 February 2016.
A factual dispute arose about the number of days the applicant performed the activity. The applicant said she worked for five Tuesdays for full eight-hour days making 40 hours in total but in respect of that time, 15 hours were at the rate of $10.00 per hour and 25 hours worked at $20.00 per hour, totalling $650.00 ($150.00 plus $500.00).
So far as mail sorting was concerned, the applicant said she was contacted on eight occasions by text messages and on four occasions verbally by which Mr Nocera of the respondent requested her to attend to sort mail. She said she applied 12 occasions, each of one hour, at the multiplier of $10.00 per hour to arrive at $120.00 for mail sorting.
The respondent said that if any sum had been payable for working on her rostered day off, or for sorting mail, the sum claimable had been extinguished by the applicant’s payment of above-award amounts.
The respondent also said that notwithstanding that contention, it paid the amounts the Fair Work Ombudsman (“FWO”) said were due.
Two things must be said about this relatively modest claim. First, as the applicant acknowledged, she had no detailed records of the claim and therefore applied a projection based on limited information. It must be remembered that the applicant said she received eight text messages and four verbal requests, making 12 requests in total to which applied the rate of $10.00 per hour being half the usual hourly rate making in total $120.00.
That much was unobjectionable and unexceptional.
So far as the respondent’s position was concerned, it argued that two, not 12, occasions were involved, different durations were involved, that it paid a particular amount (but it did not say how much) and that it did so on FWO’s advice although it said nothing of the details of that advice. Strictly speaking, I am required to assess this claim by scrutinising the details of the claim as presented by the applicant.
And while rules of evidence do not apply to small claim cases such as this, nevertheless I need to be satisfied that the claim is properly due.
A respondent is not required to disprove the claim. Here, I did not follow the details of the respondent’s explanation yet at the same time it struck me as peculiar that the applicant said she attended out of hours to sort mail 12 times whereas the respondent acknowledged only two such occasions and on those two occasions, the hours worked were three on one occasion and five on the other. In other words a significant factual dispute emerged on this modest claim.
An employer is required to keep records. The respondent did not produce any pay records. If I were to entertain the respondent’s contentions pay records should have been produced. None were.
The applicant had no access to pay records. She was unable to verify from the respondent’s records amounts that ought to have been verifiable. Against that state of affairs, I must make an informed assessment of the likelihood that one version of events is more probable than the other. I take into account the fact that to the applicant, the events of this case are most likely to have been important and so her ability to recite the number of occasions when she was called in to sort mail is likely to have been more meaningful to her than it was to the respondent. Further, the task of sorting mail was more likely to have been short periods, probably no more than an hour at a time, than was three hours on 5 January 2016 or five hours on
16 February 2016 as the respondent said.
The question is whether it is open for me to find on the balance of probabilities that this modest amount was proved. It was and I am satisfied the amount was proved.
Unpaid penalty rates
The applicant sought payment of $145.64. She said the details of the claim were narrated in appendix D. She said she was owed a
public holiday rate for working on Easter Saturday 2013, namely
30 March 2013. She claimed five and a half hours at double time and a half, making 5.5 hours multiplied by $46.48 thereby producing $255.64. She said she had been paid $110.00 of that sum so the balance due she said was $145.64.
The respondent acknowledged that the sum was due. I will order it to be paid.
Allowances
Although it took a little time to fully absorb this item of the applicant’s claim, when the details of appendix B and E were closely examined they revealed the applicant made a claim for –
a)$602.50 uniform and laundry allowances; and
b)$78.00 for driving to deliver items when filling customer orders.
The respondent rejected any liability for a uniform claim as it said the applicant was not required to wear a uniform.
The applicant relied on affidavits that appeared to have been prepared in another court where three deponents, all former employees of the respondent, stated the respondent required them to wear uniforms.
On balance, I am willing to proceed on the basis that the
four deponents who said the respondent required them to wear uniforms were preferable to the version given by the respondent to the contrary. Further, direct evidence was given by the applicant to the effect that she was required to wear a uniform, which I accept.
It follows then that the only issue was the costs associated with that requirement. The applicant claimed 86 weeks at $6.25 per week making $537.50. She also claimed the cost of the uniform of $65.00, making $602.50 in all. That calculation was in accordance with the award. I make an order for its payment.
So far as the driving cost totalling $78.00 was concerned, the applicant conceded that she would abandon that component of claim.
Unpaid superannuation
The applicant claimed $1,838.10 being 30 weeks of unpaid superannuation at the rate of $61.27 per week.
The respondent said superannuation was not paid for 10 weeks and that only $497.14 was payable. The respondent said that for a time,
the applicant was not paid while the applicant was on worker’s compensation. No details were given by the respondent.
The respondent said it would pay the sum of $497.14 when its bookkeeper returned. It also said the applicant was not entitled to superannuation after 4 November 2016 when she turned 65.
The applicant said the respondent last paid superannuation on
5 October 2016.
As a matter of law, the obligation of an employer to contribute to superannuation does not stop when an employee turns 65, as the respondent contended. The amount unpaid is due and I order it to be paid.
Conclusion
All amounts but the sum conceded by the applicant as not pressed are due. I order the respondent to pay the applicant the sum of $6,780.79 as claimed in the application, less $78.00 being the amount conceded, making in total $6,702.79.
That sum must be paid in 14 days.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 20 September 2017
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