Clifford v The Trustee for Healthy Hearing and BALANCE CARE

[2016] FCCA 322

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLIFFORD v THE TRUSTEE FOR HEALTHY HEARING & BALANCE CARE [2016] FCCA 322

Catchwords:
INDUSTRIAL LAW – FAIR WORK – SMALL CLAIM – dispute about payments on termination.

Legislation:

Fair Work Act 2009 (Cth), ss.546, 548, 570(2)(b)

Federal Circuit Court Rules 2001 (Cth), r.16.05
The Health Professionals and Support Services Award 2010 (Cth) [MA000027]

Kelly v Fitzpatrick [2007] FCA 1080

Applicant: KARINA CLIFFORD

Respondent: THE TRUSTEE FOR HEALTHY HEARING & BALANCE CARE

File Number: SYG 1358 of 2015

Judgment of: Judge Altobelli

Hearing date: 12 February 2016

Date of Last Submission: 12 February 2016

Delivered at: Sydney

Delivered on: 12 February 2016

REPRESENTATION

Solicitors for the Applicant: Santone Lawyers

The Respondent failed to appear.

DECLARATIONS

1. The Respondent contravened ss. 87 and 90(2) of the Fair Work Act 2009 (Cth), by failing to pay leave entitlements;

2. The Respondent contravened its agreement with the Applicant to give four week’s notice of termination, and by paying one week’s notice instead of four; and

3. The Respondent contravened Part 4 of The Health Professionals and Support Services Award 2010 (Cth) [MA000027] and s.45 of the Fair Work Act 2009 (Cth), by underpaying wages by $2.34 per hour during the Applicant’s period of casual employment between 18 December 2012 and 28 February 2013.

ORDERS

1. Subject only to the deduction of any PAYG taxation payment in relation to the below amounts and pursuant to s.545(2)(b) of the Fair Work Act 2009 (Cth), the Respondent pay the Applicant the sum of $9914.20 within 42 days of this order, as particularised below:

   (a)payment of the Applicant’s unused annual leave, being $3,138.46 (9 days);

   (b)payment in lieu of the Applicant’s notice period, being $5,230.76 (3 weeks);

   (c)underpayment of wages during the period of casual employment, being $698.72;

   (d)interest, being $1,136.64; and

2. Pursuant to s.570 of the Fair Work Act 2009 (Cth), the Respondent pay the Applicant’s costs in the sum of $6000.00 within 42 days of this order.

NOTATIONS

(A)There was no appearance by or on behalf of the Respondent when the matter was called at 2:09pm.

(B)These orders are made in the absence of the Respondent and she is at liberty to make such application as she may be advised pursuant to Rule 16.05 of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1358 of 2015

KARINA CLIFFORD

Applicant

And

THE TRUSTEE FOR HEALTHY HEARING & BALANCE CARE

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(settled from the transcript)

1. By way of the further amended claim on a Form 5 filed 9 September 2015, the Applicant, who is an audiologist, brings a claim against her former employer arising out of various breaches of the Fair Work Act 2009 (“the Act”), some of which manifested by way of a breach of an agreement between the parties that was partly in writing and partly oral. It is a small claim under s.548 of the Act.

2. It seems relatively uncontentious that, apart from any contractual issues, the relationship between the parties was governed by The Health Professionals and Support Services Award 2010 (Cth) [MA000027] (“the Award”), some of the relevant sections of that being in evidence (exhibit A3).

3. The Applicant commenced work for the Respondent on 29 November 2012 and resigned on 23 September 2014. She was in full-time employment for almost all of that period. The substance of her claim is that, contrary to the provisions of a modern award providing for minimum pay as varied by a written contract, she was not properly paid for her payment in lieu of notice and for her unused annual leave, and that she was underpaid in respect of a period of her employment. An adjustment is made by the Applicant in relation to an over-payment by the Respondent of her leave loading. The Applicant also seeks interest together with costs, as well as the imposition of a pecuniary penalty under s. 546 of the Act.

4. The evidence in the Applicant’s claim is contained primarily in her Affidavit that was filed on 14 August, together with the oral evidence that she gave before me this afternoon. 

5. The matter proceeded on an undefended basis today, notwithstanding the Respondent’s previous participation in the proceedings.  The Respondent, Dr Celene McNeill, the principal of the Respondent, caused to be filed a further Amended Response, in which she sought, in effect, dismissal and a cross-claim, supported by a number of Affidavits, including one that was filed 27 October 2015, 12 August 2015 and 10 June 2015. 

6. The Respondent did not appear.  I will make exhibit A9 the email correspondence between Ms McNeill, my Chambers and Mr Lestal, the Representative for the Applicant.  In effect, Dr McNeill, at 10.28 am, indicated that she was not fit to attend to this matter today, that she had been unwell for the past few days and was having medical intervention today.  She said that a doctor’s certificate would follow.  No doctor’s certificate did follow.  My Associate communicated with the principal of the Respondent at 12.01 pm, notifying her that any adjournment application would need to be made at the hearing, at 2:00pm;  that if she did not attend the matter could proceed in her absence;  and that if she wished to attend by telephone, all she needed to do was to advise my Associate by email of that effect.  Notwithstanding that, there was no appearance by her at 2:00pm.  I caused my Associate to ring the Respondent at her business, but she was not there.  I caused my Associate to then further ring the Respondent directly on her mobile phone, but there was no answer.

7. The matter has a relatively long history for what is, in many respects, a very simple claim.  There have been multiple appearances.  The parties have been encouraged to participate in negotiation, and, indeed, if I recall correctly, had the benefit of a Registrar Assisted Settlement Process.  Regrettably, they could not reach settlement.  During the time that the matter was before me, it was originally listed for hearing on 27 November last year, but that had to be vacated in favour of today’s date.  The lengthy procedural history of this matter was a major consideration in favour of declining any implied adjournment application by the Respondent.  It is a small claim, but, pursuant to the rules of this Court, it is important to deal with these matters as expeditiously as possible.  The Respondent will retain her rights under the Federal Circuit Court Rules (FCCR) to, in theory, apply to set aside these orders, subject to being able to convince the Court of the appropriateness of doing so: Rule 16.05 FCCR.

8. The case proceeded on the basis of the Applicant’s evidence, not just her Affidavit, but her oral evidence.  What is significant about her oral evidence this afternoon is the very systematic way in which Mr Lestal, representing her, addressed all of the concerns that were raised by Dr McNeill in the documents that were filed on behalf of the Respondent.  Thus, for example, I had evidence from the Applicant that satisfied me that her contention about the terms of any agreement between the parties is to be preferred over that of the Respondent.  Consequently, that means that where any contention made by the Applicant is opposed by the Respondent, the Court finds in favour of the Applicant, as it is well entitled to do in an undefended context in any event.  As a consequence of those findings, a number of things must follow. 

9. I should add that, during the course of the evidence, a substantial volume of documents were tendered in evidence, all of which were corroborative of the Applicant’s claim. The following documents were tendered:

   ·exhibit A1 – document evidencing days off;

   ·exhibit A2 – letter from Macquarie University dated 18 December  2015;

   ·exhibit A3 – extract from the Award;

   ·exhibit A4 – schedule C to the Award;

   ·exhibit A5 – unsigned employment contract;

   ·exhibit A6 – email from Ms McNeill dated 13 October 2014;

   ·exhibit A7 – email to Ms Clifford dated 8 February 2016 attaching Notification of Costs;

   ·exhibit A8 – document of calculations of underpayment and interest including notice period; and

   ·exhibit A9 – email correspondence between Chambers and the parties dated 12 February 2016; and

   ·exhibit A10 – letter to Mr Kellow dated 22 November 2014.

10. In the Applicant’s very helpful and, indeed, comprehensive outline of submissions, which the Court accepts and incorporates into these ex tempore reasons, he particularises the claims of the Applicant.  The Court finds that the agreed period of notice as between the Applicant and the Respondent was, in fact, four weeks, and not the two weeks as contended by the Respondent.  This means that, in effect, the Applicant was underpaid for three weeks.

11. The dispute between the parties about the payment of unused annual leave is resolved in favour of the applicant.  In this regard the Court accepts her evidence about the days claimed and the basis on which she was to be paid for the absences in question, which is reflected in exhibit A1.

12. The Court did not accept in its entirety the Applicant’s claim for underpayment of wages during the period of her casual employment.  The transcript will record that the Court formed the view that the Applicant did not become, for the purposes of the Award, a Masters entry level employee until, at the very least, the date of the evidence that she produces from Macquarie University that she had qualified for the Award of Master of Clinical Audiology (exhibit A2).  It is not the Court’s view that conferral at a graduation ceremony is the marker for or determinative of when an employee becomes entitled to be treated as having a Masters qualification.  That necessitated a recalculation of the Applicant’s claim for underpayment and a consequent reduction.  Appropriate credit has been given to the Respondent for what appears to be agreed over-payment of leave loading. 

13. The Court believes that, in the circumstances, the Applicant is entitled to interest on her claim.  The interest component of her claim is $1136.64 (exhibit A8).  It should be noted that the amount of $9914.20 ordered includes the interest component.

14. There were two contentious issues. Firstly, the Applicant’s claim for the imposition of a pecuniary penalty, under s.546 of the Act. The Court declined to invoke that section, in circumstances where the contraventions with the Act were relatively minor, and where the impression formed is that what was once a very cordial and effective working arrangement appears to have soured. This is not a case where there is a level of egregiousness in the behaviour of the Respondent that warrants the imposition of a pecuniary penalty (See Kelly v Fitzpatrick [2007] FCA 1080 at [14]).

15. The other contentious issue was in relation to costs. The costs in the sum of $6000 has, in fact, been awarded pursuant to s. 570(2)(b) of the Act. The Court had the benefit of separate written submissions as to costs, which the Court accepts and which it incorporates into these ex tempore reasons. The Court is concerned about the evidence of the Respondent, which does create an impression that her defence of these proceedings was motivated, at least to a substantial part, by irrelevant considerations having nothing to do with the relevant law or the facts, as the Court has ultimately found them. Accordingly, whilst costs orders in this jurisdiction should be rare, the Court believes that this is the case for the imposition of costs. The Respondent has acted unreasonably.

16. The Court had evidence about the actual costs to the Applicant (exhibit A7).  By ordering $6000 and, subject of course to recovery, it is clear from the evidence before the Court about costs, that she will not be fully indemnified, though it will go some way towards that.  The Court conducted its own assessment of costs, pursuant to the Schedule to the FCCR.  On a hypothetical application of that schedule, it is quite possible that the amount of costs would have been greater. The Court is satisfied that, in the circumstances, an order for $6000 is appropriate.

17. I am satisfied in the circumstances that these orders are appropriate, are consistent with the Act and the relevant provisions of the FCCR.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 18 February 2016