Mitchell v G and M Childcare Centres Pty Ltd

[2015] FCCA 718

FEDERAL CIRCUIT COURT OF AUSTRALIA

MITCHELL v G & M CHILDCARE CENTRES PTY LTD [2015] FCCA 718

Catchwords:
INDUSTRIAL LAW – Fair Work Act 2009 – small claims procedure – unavailability of pecuniary penalties in proceedings governed by the small claims procedure.

Legislation:

Workplace Relations Act 1996, ss.717, 719, cls.32, 34, 43 of sch.8
Fair Work (Transitional Provisions & Consequential Amendments) Act 2009, item 11 of sch.2, items 2, 29 of sch.3, item 6 of sch.4,
Fair Work Act 2009, ss.43, 44, 45, 87, 89, 90, 117, 285, 323, 539, 545, 548, 570
Annual Holidays Act 1944 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW), s.199

Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW)

Cases Cited:

Armory v Delamirie (1722) 1 Stra 505; 93 ER 664

Houghton v Immer (1997) 44 NSWLR 46

Applicant: RENEE JADE MITCHELL

Respondent: G & M CHILDCARE CENTRES PTY LTD ABN 34 122 675 601 T/AS THE PINES ACADEMY CHILD CARE CENTRE

File Number: SYG 2670 of 2012

Judgment of: Judge Cameron

Hearing date: 10 March 2014

Date of Last Submission: 8 April 2014

Delivered at: Sydney

Delivered on: 7 April 2015

REPRESENTATION

Counsel for the Applicant: Mr L. Tyndall, by leave

Solicitors for the Applicant: Coutts Solicitors & Conveyancers

Counsel for the Respondent: Mr L. Fermanis, by leave

Solicitors for the Respondent: Pserras Lawyers

ORDERS

1. Judgment for the applicant for $2,379.28.      

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2670 of 2012

RENEE JADE MITCHELL

Applicant

And

G & M CHILDCARE CENTRES PTY LTD ABN 34 122 675 601 T/AS THE PINES ACADEMY CHILD CARE CENTRE

Respondent

REASONS FOR JUDGMENT

(As Corrected)

INTRODUCTION

1. The applicant, Ms Mitchell, was employed by the respondent (“G & M Childcare”) at its Pines Academy child care centre (“Pines Academy”) from 2006 until May 2012.  Ms Mitchell alleged that during her employment, in breach of the Children’s Services Award 2010 (“Award”), G & M Childcare failed to pay all her wages owed to her, the minimum rate of pay applicable to her job classification, a higher duties allowance, accrued annual leave entitlements, overtime entitlements, termination pay and also failed to make superannuation contributions on her behalf.

2. Ms Mitchell sought payment to her of her allegedly outstanding entitlements.

ALLEGATIONS

1. Ms Mitchell’s allegations were contained in her amended Form 5 claim form and in the particulars to her claim filed on 4 September 2013.  They are relevantly summarised below.

Underpayment of wages

1. Ms Mitchell alleged that in August 2010 she completed a Diploma in Children’s Services and consequently became a level 3.4 (Diploma) children’s services employee under the Award.  She alleged that as a level 3.4 (Diploma) employee:

   a)between 9 August 2010 and 12 June 2011 (1,672 hours) she was entitled to be paid $19.66 an hour but was only paid $19.50 an hour, which represented an underpayment of $0.16 an hour; and 

   b)from 13 June 2011 until the cessation of her employment (1,872.5 hours) she was entitled to be paid $20.33 per hour but she continued to receive $19.50 an hour which was an underpayment of $0.83 per hour. 

2. She alleged that G & M Childcare still owed her $1,127.82 in unpaid wages, having already paid her $693.88 towards those underpayments.

Annual leave

1. Ms Mitchell alleged that due to various administrative errors in her pay slips, her accrued annual leave was not accurately recorded and on some occasions had been reduced in circumstances when she had not taken annual leave.  She alleged that of the annual leave she had accrued during her employment, 407.301 hours had not been paid to her (upon termination).  She alleged that G & M Childcare owed her $4,564.51 for unpaid annual leave entitlements.

Higher duties allowance

1. Ms Mitchell alleged that in January 2012, following the resignation of the Pines Academy’s nominated supervisor and room leader, she took over that person’s duties.  She alleged that she had shared the role with a co-worker and therefore conducted the higher duties for 2.5 hours each day.  The rate of pay for an authorised supervisor under the Award was at classification level 4.1, being $21.27 an hour.  Ms Mitchell alleged that as she undertook those higher duties for 255 hours and was paid $19.50 an hour, she had been underpaid $1.77 an hour for 2.5 hours per day over twenty weeks and two days, which amounted to a total underpayment of $451.35.

Unpaid overtime

1. Ms Mitchell alleged that from 4 December 2006 until the cessation of her employment she was not paid 10.94 hours in overtime.  Calculated at the different rates of hourly pay, to which she claimed she was entitled during her employment, she alleged that she was owed $300.27 in unpaid overtime.

Termination payments

1. On 22 May 2012 Ms Mitchell gave written notice to G & M Childcare and stated that her last day of work would be 1 June 2012.  In a further letter, dated 28 May 2012, she gave her last day of work as 2 June 2012 and provided a medical certificate which recorded that she was unfit for duties from 28 May 2012 to 1 June 2012.  Ms Mitchell alleged that she had not been paid termination pay for the period from 22 May 2012 to 5 June 2012 which was 73 hours.  She alleged that she was owed $1,484.09.

Superannuation

1. In her Form 5 claim form Ms Mitchell alleged that after 21 October 2011 G & M Childcare failed to make superannuation contributions on her behalf amounting to $18,159.46.

Other

1. Ms Mitchell also claimed a figure of $957.18.  She alleged that her bank receipts were $957.18 less than the amounts which her pay slips purported had been paid to her.

RESPONSE

1. G & M Childcare denied Ms Mitchell’s allegations.  It alleged that Ms Mitchell had been paid the correct rates of pay and that she had been paid all her annual leave entitlements.  G & M Childcare alleged that Ms Mitchell had not undertaken any higher duties.  In that connection, it alleged that there was no specified allowance for room leaders and that whilst Ms Mitchell had once been offered the position of authorised supervisor, she had declined it due to her lack of knowledge of the “childcare operational system”.

2. G & M Childcare alleged that overtime worked by employees was offset by time off in lieu.  It alleged that arrangements in relation to Ms Mitchell’s net pay had been made between her and previous management.  G & M Childcare also alleged that Ms Mitchell had resigned from her employment and was therefore not entitled to termination pay.

3. G & M Childcare also alleged that Ms Mitchell could not claim superannuation entitlements in this jurisdiction.

4. By the time of the hearing G & M Childcare had conceded the claim made by Mr Mitchell that the pay amounts shown in her pay slips did not match the amounts she received in her bank account. 

RELEVANT LEGISLATION

2006 - 30 June 2009 – Workplace Relations Act

1. The provisions of the Workplace Relations Act 1996 (“WRA”) relevant to these proceedings were repealed by sch.1 to the Fair Work (Transitional Provisions & Consequential Amendments) Act 2009 (“FW(TPCA) Act”) effective 1 July 2009. Nevertheless, item 11 of sch.2 to the FW(TPCA) Act provides that the WRA continues to apply on and after its repeal in relation to conduct that occurred before the repeal. Consequently, the WRA continues to apply to the causes of action arising under that Act alleged in these proceedings.

Annual leave

1. In respect of the period of Ms Mitchell’s employment before the commencement of the Fair Work Act 2009 (“FWA”), the Annual Holidays Act 1944 (NSW) relevantly provided employees with four weeks’ paid annual leave.

2. Clause 34 of sch.8 to the WRA preserved the Annual Holidays Act 1944 (NSW) as a notional agreement preserving state award (“Annual Holidays NAPSA”). Clause 32 of sch.8 to the WRA had the effect that G & M Childcare was bound to observe the terms of the Annual Holidays NAPSA.

Overtime loadings

1. The WRA made no express provision for overtime loadings and Ms Mitchell did not identify any industrial instrument applicable to her under the WRA which might have made such provision.

Compensation

1. Clause 43 of sch.8 to the WRA provided that a NAPSA might be enforced as if it were a collective agreement.

2. Section 719 was the provision of the WRA relevant to the breaches of that Act alleged in these proceedings and it relevantly provided:

   Section 719  Imposition and recovery of penalties

   …

   (6)Where, in a proceeding against an employer under this section, it appears to the eligible court that an employee of the employer has not been paid an amount that the employer was required to pay under an applicable provision … , the court may order the employer to pay to the employee the amount of the underpayment.

   (7)Where, in a proceeding against an employer under this section, it appears to the eligible court that the employer has not paid an amount to a superannuation fund that the employer was required, under an applicable provision … , to pay on behalf of a person, the court may order the employer to make a payment to or in respect of that person for the purpose of restoring the person, as far as practicable, to the position that the person would have been in had the employer not failed to pay the amount to the superannuation fund.

3. Section 717 provided:

   In this Part:

   applicable provision, in relation to a person, means:

   (a)  a term of one of these that applies to the person:

   …

   (iv) a collective agreement.

1 July 2009 – 31 December 2009, FWA “bridging period”

1. The FWA commenced on 1 July 2009 but modern awards and the National Employment Standards (“NES”) did not commence until 1 January 2010, the “FW (safety net provisions) commencement day”. While many provisions of the FWA applied on and from 1 July 2009, as far as minimum employment standards and industrial instruments were concerned it was also a transitional (“bridging”) period during which pre-FWA provisions continued to apply until the FW (safety net provisions) commencement day.

Annual leave

1. Upon the repeal of the WRA on 1 July 2009, the Annual Holidays NAPSA became a transitional instrument referred to in item 2 of sch.3 to the FW(TPCA) Act and continued in force until the commencement of the Award on 1 January 2010: item 29, sch.3 to the FW(TPCA) Act.

2. Item 6 of sch.4 to the FW(TPCA) Act relevantly provided in respect of any annual leave entitlements which Ms Mitchell may have accrued under the WRA:

   6   Accruing entitlements: leave accrued immediately before the FW (safety net provisions) commencement day

   (1)This item applies if, immediately before the FW (safety net provisions) commencement day, an employee has an accrued entitlement to an amount of paid annual leave or paid personal/carer's leave, whether the leave accrued under Part 7 of the WR Act, a transitional instrument or otherwise.

   (2)The provisions of the National Employment Standards relating to taking that kind of leave (including rates of pay while taking leave), or cashing-out that kind of leave, apply, as a minimum standard, to the accrued leave as if it had accrued under the National Employment Standards.

Overtime loadings

1. The FWA made no express provision for overtime loadings and Ms Mitchell did not identify any industrial instrument applicable to her during the transitional period which might have made such provision.

1 January 2010 – 2012, FWA – operation of modern awards and NES

Annual leave

1. Section 87 of the FWA relevantly provides that for each year of service with his or her employer, an employee is entitled to four weeks of paid annual leave which accrues progressively during a year of service according to the employee’s ordinary hours of work.

2. Sections 89 and 90 of the FWA provide:

   89         Employee not taken to be on paid annual leave at certain times

   Public holidays

   (1)If the period during which an employee takes paid annual leave includes a day or part‑day that is a public holiday in the place where the employee is based for work purposes, the employee is taken not to be on paid annual leave on that public holiday.

   …

   90         Payment for annual leave

   (1)If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

   (2)If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.

3. Section 117 relevantly provides:

   117   Requirement for notice of termination or payment in lieu

   Notice specifying day of termination

   (1)An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).

   Amount of notice or payment in lieu of notice

   (2)The employer must not terminate the employee’s employment unless:

   (a)the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or

   (b)the employer has paid to the employee (or to another person on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.

   …

4. Division 2 of pt.2-9 of the FWA contains provisions dealing with the payment of wages. Relevantly, s.323 provides:

   323   Method and frequency of payment

   (1)An employer must pay an employee amounts payable to the employee in relation to the performance of work:

   (a)     in full … ; and

   (b)in money by one, or a combination, of the methods referred to in subsection (2); and

   (c)     at least monthly.

   …

Award

1. The minimum weekly and hourly rates of pay payable to persons covered by the Award are set out in a table in cl.14.1 of the Award. Those rates are modified on an annual basis pursuant to s.285 of the FWA. During the period following the grant of Ms Mitchell’s Diploma of Children’s Services, the hourly rates payable to a level 3.4 (Diploma) children’s services employee were as follows:

   a)from 9 August 2010 (first full pay period after Ms Mitchell obtained her Diploma) to 9 July 2011 – $19.66; and

   b)from 10 July 2011 (the first full pay period after 3 July 2011) to 27 May 2012 (last pay slip date) – $20.33.

2. At all relevant times the wage rates for other level 3 children’s services employees was less than $19.50 an hour.

3. In January 2012, and until May 2012, the hourly rate of pay for a level 4.1 children’s services employee was $21.27.

4. The other clauses of the Award relevantly provide:

   10.Types of employment

   …

   10.4Part-time employment

   …

   (f)A part-time employee who agrees to work in excess of their normal hours will be paid at ordinary time for up to eight hours provided that the additional time worked is during the ordinary hours of operation of the early childhood service. No part-time employee may work in excess of eight hours in any day without the payment of overtime paid for at the rates prescribed in clause 23—Overtime and penalty rates.

   …

   18         Higher duties

   18.1An employee engaged in duties carrying a higher rate than their ordinary classification for two or more consecutive hours within any shift or day will be paid for the time so worked at the higher rate provided that:

   (a)the greater part of the time so worked is spent in performing duties carrying the higher rate; …

   19         Payment of wages

   …

   19.3Where an employee lawfully leaves their employment they will be paid all moneys due at the time of leaving by cash, cheque or electronic funds transfer. Alternatively, the employee may be paid on the next working day where this is reasonable.

   20         Superannuation

   …

   20.2  Employer contributions

   An employer must make such superannuation contributions to a superannuation fund for the benefit of an employee as will avoid the employer being required to pay the superannuation guarantee charge under superannuation legislation with respect to that employee.

   …

   23         Overtime and penalty rates

   23.1  Entitlement to overtime rates

   (a)A full-time employee is paid at overtime rates for any work performed outside of their ordinary hours of work.

   (b)A part-time employee is paid at overtime rates in the circumstances specified in clause 10.4(f). …

   23.2  Overtime rates

   (a)Overtime will be paid at the rate of time and a half for the first two hours and double time thereafter. In calculating overtime, each day’s work will stand alone.

   (b)Where, due to a genuine and pressing emergency situation, an employee is required to remain at work after their normal finishing time such time will be paid at the ordinary rate for the employee’s classification. Provided that such emergency overtime does not exceed one hour per week. For the purposes of this subclause an emergency situation may include a natural disaster affecting a parent, another employee or the centre/service, the death of a child or parent, or a child requiring urgent hospitalisation or medical attention.

   (c)     Time off instead of payment for overtime

   An employee and an employer may agree that an employee will be provided with time off instead of being paid an overtime payment for all authorised work performed outside of or in excess of the ordinary or rostered hours …

   …

   24         Annual leave

   24.1  Annual leave is provided for in the NES.

   …

   24.3  Annual leave loading

   In addition to the payment provided for by the NES an employer is required to pay leave loading of 17.5% of that payment.

   24.4  Taking annual leave

   (a)Where a workplace is closed during a vacation period, other than Christmas vacation, and no work is available, an employee will be paid the ordinary rate of pay during such a period.

   …

   SCHEDULE B – Classification Structure

   …

   B.1.4         Level 3

   This is an employee who has completed AQF Certificate III in Children’s Services or an equivalent qualification or, alternatively, this employee will possess, in the opinion of the employer, sufficient knowledge or experience to perform the duties at this level. An employee appointed at this level will also undertake the same duties and perform the same tasks as a CSE Level 2.

   (a)    Indicative duties

   ·   Assist in the preparation, implementation and evaluation of developmentally appropriate programs for individual children or groups.

   ·   Record observations of individual children or groups for program planning purposes for qualified staff.

   ·   Under direction, work with individual children with particular needs.

   ·   Assist in the direction of untrained staff.

   ·   Undertake and implement the requirements of quality assurance.

   ·   Work in accordance with food safety regulations.

   (b)    Progression

   Subject to this award, an employee at this level is entitled to progression to Level 3.3.  An employee at this level who has completed an AQF Diploma in Children’s Services or equivalent, and who demonstrates the application of skills and knowledge acquired beyond the competencies required for AQF Certificate III in the ongoing performance of their work, must be paid no less than the rate prescribed for Level 3.4.  …

   …

   B.1.6          Level 4

   This is an employee who has completed a Diploma in Children’s Services or equivalent (e.g. Certificate IV in Out of School Hours Care) as recognised by licensing authorities and is appointed as the person in charge of a group of children in the age range from birth to 12 years or an employee who is appointed as an Authorised Supervisor (as defined in the Children and Young Persons (Care and Protection) Act 1998 (NSW)).

   An employee at this level will also take on the same duties and perform the same tasks as a CSE Level 3.

   Indicative duties

   ·     Responsible, in consultation with the Assistant Director/Director for the preparation, implementation and evaluation of a developmentally appropriate program for individual children or groups.

   ·     Responsible to the Assistant Director/Director for the supervision of students on placement.

   ·     Responsible for ensuring a safe environment is maintained for both staff and children.

   ·     Responsible for ensuring that records are maintained accurately for each child in their care.

   ·   Develop, implement and evaluate daily care routines.

   ·     Ensure that the centre or service’s policies and procedures are adhered to.

   ·   Liaise with families.

Penalties and compensation

1. By virtue of s.43(1)(a) of the FWA, ss.87, 90 and 117 are provisions of the NES. Section 44(1) provides that an employer must not contravene a provision of the NES. Section 539 provides that s.44(1) is a civil remedy provision.

2. The Award is a modern award. Section 45 provides that a person must not contravene a term of a modern award and s.539 provides that s.45 is a civil remedy provision.

3. Section 539 also provides that s.323(1) is a civil remedy provision.

4. Section 545(2)(b) of the FWA provides that the Court may award compensation for loss suffered because of a contravention of any of the FWA’s civil remedy provisions referred to above.

EVIDENCE

Renee Mitchell

1. On 18 July 2006 Ms Mitchell commenced employment as a child care worker at the Pines Academy and on 5 August 2010 she obtained a Diploma of Children’s Services.  Ms Mitchell deposed that during her employment at the Pines Academy she worked in various rooms and carried out duties which included observing the children, supervising indoor and outdoor activities, daily cleaning, preparing food, completing children’s portfolios, setting up arts and crafts activities, changing nappies and toileting the children. 

Responsibilities

1. From December 2011 Ms Mitchell worked as the room leader for whichever room she was assigned to.  She deposed that in addition to her normal duties, as a room leader she was also given the responsibility of setting the program.  This involved her observing the children, listening to and interacting with them in order to assess their needs, wants and strengths and then using the information she gained to set a curriculum of activities.  Ms Mitchell deposed that the program was set on a weekly basis and that she was responsible for implementing it.  She deposed that she also evaluated the plan each day and modified the activities depending on the interest the children displayed in them.

2. Ms Mitchell said that a room leader is in charge of the children in a particular room and a nominated supervisor is in charge of running the centre. 

3. Ms Mitchell said that it was not a requirement that room leaders had to use the Quick Kids system and use of that system was not a pre-requisite for becoming a room leader.  She said that after another employee left in December 2011, she was asked whether she wished to be the nominated supervisor and elected not to do so, instead becoming the “2IC” to Ms Adriana Tozzi who assumed that role.  She said that she worked as a room leader from December 2011 to 22 May 2012.

4. Ms Mitchell deposed that as “2IC” from January 2012 she interviewed potential staff with Ms Tozzi, provided input on appointments and provided orientation to new parents.  She deposed that she was also in charge of the centre when Ms Tozzi was not present, which involved dealing with staffing issues, answering the telephone, issuing receipts and contacting parents who owed fees.

Recording of hours and underpayments

1. Ms Mitchell said that the child care centre was shut on weekends and for two weeks over the Christmas period.  She said that she recorded her hours at work on a timesheet and also in her own diaries from 2011 because she had worked overtime on occasion. 

2. Ms Mitchell said that she would usually receive her pay slips each fortnight after she had been paid, although sometimes it would be a little later.  She said that the end of the pay period usually fell on a Sunday and that she had not received all her timesheets from G & M Childcare.

3. Ms Mitchell was unable to recall whether she had taken leave between 28 January 2008 and 10 February 2008 or had taken leave between 16 June 2008 and 29 June 2008.  She had not approached G & M Childcare about those leave entries on her pay slip as she was only 20 years old and did not understand her pay slips at that point. 

4. Ms Mitchell said that she had been paid some of her overtime and agreed that it was not unusual for an employee to be given time off in lieu of the overtime they had worked. 

Resignation

1. Ms Mitchell said that she gave Ms Tozzi her letter of resignation at 11:00am on 22 May 2012 and left the premises for the last time at that time.  She said that after she left the centre she went to the doctor who diagnosed her with depression.  She said that she took sick leave from the date of her second resignation letter until 2 June 2012.

Loan and advanced payments

1. Ms Mitchell said that she had never borrowed money from Mr George Assad, who formerly ran the business, or from the Pines Academy.  She further denied that she had, from time to time, approached Mr Assad for an advance on her wages.

Carly Starr

1. Ms Starr was employed as a child care worker at the Pines Academy from March 2012 until August 2012.  She deposed that when she applied for a job at the Pines Academy in March 2012 her sister, who worked there at the time, told her that Ms Mitchell was the “2IC”.  Ms Starr deposed that in March 2012 she had attended an interview which was conducted by Ms Tozzi and Ms Mitchell and that Ms Mitchell had telephoned her and offered her a job. 

2. Ms Starr deposed that when she commenced work she was placed in the same room as Ms Mitchell who, before showing her around the room, identified herself as the room leader and as being in charge.

Suzanne Reader

1. Ms Reader’s children attended the Pines Academy and Ms Mitchell cared for them.  Ms Reader deposed that in 2011 or 2012 she observed that Ms Mitchell was listed as the room leader.  She deposed that when she attended the Pines Academy in around 2012 she observed that Ms Mitchell sat in the office, gave incident reports to parents and received money from them.  Ms Reader deposed that Ms Mitchell had also taken money from her for the payment of her children’s fees and on one occasion had telephoned her to enquire about arrears in her payments.  She deposed that in 2012 Mr Mitchell had told her:

   I am now 2ic so I will be in the room less.

Mona Assad

1. Ms Assad was the sole director of G & M Childcare.  She deposed that she took over the management of the business from her brother, Mr Assad, on 9 January 2012. 

2. Ms Assad deposed that Mr Assad had advised her that Ms Mitchell, at her request, had occasionally been paid partly in cash and partly by direct deposit into her bank account.  Ms Assad deposed that her husband, Sam Marzouk, was responsible for the day to day management of the Pines Academy and that his duties included calculating wages, organising staff and liaising with employees about their entitlements, including wages, holiday pay and sick leave pay.  Ms Assad deposed that G & M Childcare used an MYOB system to manage its staff payments and that the figures entered into that system were checked and confirmed by their accountant.  She deposed that G & M Childcare had never received any complaints from staff concerning payment of their entitlements.

Sam Marzouk

1. Mr Marzouk deposed that he was the manager of the Pines Academy and responsible for its day to day management.  His duties include calculating wages and annual leave entitlements from timesheets provided by employees, organising staff and liaising with employees about their entitlements, including wages, holiday pay and sick leave pay.  Mr Marzouk deposed that Ms Mitchell’s calculations of her entitlements were incorrect because:

   a)G & M Childcare had taken over the business of the Pines Academy on 27 November 2006 instead of July 2006 as alleged by Ms Mitchell;

   b)Ms Mitchell had resigned a week before June 2012; and

   c)Ms Mitchell’s calculations were based on her having worked thirty-eight hours a week but G & M Childcare’s employees were employed on a permanent part time basis and worked about thirty to seventy-six hours a fortnight.

2. Mr Marzouk alleged that on 9 August 2012 he paid Ms Mitchell an amount for which included her wages and the annual leave entitlements with loading owing to her.  Annexure A to his affidavit identified that amount to have been $5,060.08 gross made up as follows:

Back pay	$693.88
Holiday Leave Loading	$650.28
Unused Holiday Pay	$3,715.92

1. Mr Marzouk deposed that the Fair Work Ombudsman had conducted an investigation and concluded that all of Ms Mitchell’s superannuation entitlements had been paid but that she had been paid wages at $19.51 an hour instead of her entitlement of $20.33 an hour.  He deposed that it was determined that Ms Mitchell had been underpaid $693.88 which was paid to her in the 9 August 2012 payment.  According to Mr Marzouk’s calculations, based on her hours of work, Ms Mitchell had been entitled to 810.85 hours of annual leave.  He deposed that she had only been paid 613 of those hours but that the remaining 197.85 hours owing were paid to her on 9 August 2012.

2. Mr Marzouk deposed that for the purposes of paying wages he used an MYOB system and generated pay slips weekly.  He deposed that their accountant reviewed all his work in respect of payments to employees. 

3. Mr Marzouk deposed that Ms Mitchell had never undertaken any higher duties as she could not use all of the Pines Academy’s operating systems.  Following the resignation of the Pines Academy nominated supervisor, Mr Marzouk held a meeting with Ms Mitchell and Ms Tozzi on 19 January 2012.  He deposed that he told Ms Mitchell and Ms Tozzi that he wanted one of them to become the nominated supervisor as they were the longest serving employees at the centre.  He deposed to the following conversation:

   Mr Marzouk:         Which one of you would be capable of operating the Quick Kids system and attending to all of the filing and related duties in the centre?

   Ms Mitchell:          I do not know how to operate the Quick Kids system and I do not want to take on the responsibility.

   Ms Tozzi:I am familiar with Quick Kids, taking payments, filing and willing to learn whatever is required for the position.

   Mr Marzouk:         [to Ms Mitchell after stating that Ms Tozzi would be the nominated supervisor] If you are willing to learn under Adriana’s supervision, I may make you second in charge.

4. Mr Marzouk said that Ms Mitchell was a room leader from the end of January or the beginning of February 2012.

5. Mr Marzouk deposed that during her six year employment with G & M Childcare Ms Mitchell had never made a claim for overtime and had regularly taken time off in lieu.  He deposed that G & M Childcare adopted the industry standard that staff would stay back when required to do so for short periods and would finish earlier when the number of children on that day was low, with no overtime paid to them.

6. Mr Marzouk deposed that Ms Mitchell had resigned her employment after her partner abused Ms Tozzi in the presence of children at the centre and other employees.  He deposed that Ms Mitchell left the centre immediately after the incident without giving notice.  He deposed that when he arrived at the centre that day Ms Mitchell was not there but returned later to hand in her resignation.  Mr Marzouk deposed he was advised by Fair Work Australia that he was entitled to deduct one week’s pay from an employee who left without giving reasonable notice.  He deposed that he did not believe that Ms Mitchell was entitled to be paid two weeks in lieu of notice as she had resigned in a letter dated 28 May 2012. 

Adriana Tozzi

1. Ms Tozzi deposed that she had been appointed the nominated supervisor of the Pines Academy at a meeting with Ms Mitchell and Mr Marzouk on 19 January 2012.  In that role she became responsible for the day to day management of the Pines Academy with respect to the care provided to the children.

2. Ms Tozzi deposed that Ms Mitchell had been a room leader, had had day to day care of the children and had sometimes taken payments from parents.  She deposed that those duties were classified under B.1.6 Level 4 and B.1.8 Level 5 of the Award and that Ms Mitchell had been paid the correct rate of pay.

3. Ms Tozzi deposed that at approximately 11am on Ms Mitchell’s last day at work, Ms Mitchell’s partner approached her, Ms Tozzi, outside the Pines Academy premises.  She deposed that he abused her in a loud voice with his fist raised and pointed towards her.  Ms Tozzi deposed that when she re-entered the centre Ms Mitchell was packing her belongings and left shortly thereafter.  Ms Mitchell did not return to work.

4. Ms Tozzi deposed that she worked under Mr Marzouk’s direction.  She calculated the hours worked by staff and checked them with Mr Marzouk before entering them into the MYOB system.  She deposed that Mr Marzouk would then organise the payments into each employee’s account via internet banking.

5. Ms Tozzi deposed that before she commenced as supervisor, the previous supervisor had paid Ms Mitchell $19.50 an hour.

CONSIDERATION

Rate of pay  

1. Ms Mitchell submitted that G & M Childcare had failed to pay her the correct rate set out in the Award.  She submitted that G & M Childcare had admitted that it had paid her $19.50 an hour from 5 August 2010 until the end of her employment on 2 June 2012.  Ms Mitchell submitted that her evidence and that of Ms Reader, as well as that of G & M Childcare’s witnesses, confirmed that she had performed the role of room leader. 

2. To be entitled to receive the level 3.4 rate of pay it is insufficient for an employee to demonstrate only that they have obtained an AQF Diploma in Children’s Services or an equivalent qualification.  The employee also has to demonstrate “the application of skills and knowledge acquired beyond the competencies required for AQF Certificate III in the ongoing performance of their work”. 

3. In her affidavit of 11 December 2013 Ms Mitchell said that prior to 2012 her duties had included observing the children, supervising indoor and outdoor activities, daily cleaning, preparing food, completing children’s portfolios, setting up arts and crafts activities, changing nappies and toileting the children.  She has not demonstrated that attending to those tasks amounted to the application of skills and knowledge beyond the competencies of her qualification.

4. However, G & M Childcare did concede that from January 2012, which I take to be the first working week in that month, until 22 May 2012 Ms Mitchell was entitled to be paid the level 3.4 rate of pay. 

5. Consequently, I find that Ms Mitchell has not made out her claim to be entitled to be paid at the level 3.4 rate of pay prior to January 2012 but that she was entitled to be paid at that rate during her employment with G & M Childcare in 2012.  I accept Mr Marzouk’s evidence that Ms Mitchell was paid $693.88 in respect of this period which, on my calculations, was sufficient to compensate her for any underpayment of ordinary time wages in that period.  She is not entitled to any compensation in respect of the period before 2012 as she was paid more than the Award wage in that period.

Higher duties

1. Ms Mitchell alleged that she had performed higher duties from 1 January 2012 until 22 May 2012 and observed that Ms Tozzi had conceded that her duties had been equivalent to those of a level 5 classification under the Award.  Ms Mitchell submitted that she had contributed to the development of the centre, coordinated centre operations, including programme planning and staff training, was responsible for the day to day management of the centre in the temporary absence of the director and assisted in administrative functions, including making rosters, communicating with staff members and managing parents.  Ms Mitchell also submitted that her performance of the second-in-charge duties was sufficient to meet the Award classification even though she had not been appointed to the role.

2. G & M Childcare submitted that Ms Mitchell had never been the second in charge at the centre.  It referred in this regard to Mr Marzouk’s evidence that he had offered the role to Ms Mitchell on the proviso that she fulfilled certain conditions.  G & M Childcare also pointed to Ms Tozzi’s concessions that Ms Mitchell’s duties had fallen under the B.1.6 level 4 and B.1.8 level 5 classifications of the Award.

3. Although it is plain that Ms Mitchell had some supervisory responsibilities, her evidence did not go so far as to say that she was an “Authorised Supervisor (as defined in the Children and Young Persons (Care and Protection) Act 1998 (NSW))” as referred to in cl.B.1.6 of the Award. In that regard, at the commencement of the Award in 2010, s.199(1) of that Act relevantly provided:

   “authorised supervisor”, in relation to a children’s service, means the person specified as the authorised supervisor in the licence for the service

   and no evidence was adduced which indicated that Ms Mitchell had been so specified in the Pines Academy licence.  In any event, that provision was repealed by the Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW) with effect from 1 January 2012. I therefore find that she was not an authorised supervisor.

4. In any event, I did not understand Ms Mitchell to allege that she had been the “authorised supervisor” of the centre and thus deputy to Ms Assad or Mr Marzouk.  Rather, her case was that she was second to Ms Tozzi in the centre’s hierarchy and so performed duties of some complexity and took charge in Ms Tozzi’s absence.  Ms Tozzi did not contradict those claims.

5. I am satisfied that Ms Mitchell fulfilled the other duties set out in cl.B.1.6 of sch.B to the Award and also that her duties exceeded those described in cl.B.1.4 of sch.B to the Award.  In particular, I accept that Ms Mitchell was in charge of a room and that she was “responsible … for the supervision of students …”. 

6. Ms Mitchell’s allegation was that she performed higher duties for 2.5 hours per day, and I am prepared to accept that allegation in the absence of evidence from Ms Tozzi to the contrary.  I therefore find that from the first working week in January 2012, the week commencing 16 January 2012, until her departure on 22 May 2012, a period of 17 weeks and one day, Ms Mitchell was entitled pursuant to cl.18 of the Award to be paid at the rate of $21.27 per hour for 2.5 hours a day, being $0.94 per hour more than the amount which she should have been paid at level 3.4.  The underpayment in question was $200.69.

Annual leave

1. Ms Mitchell’s “Scott Schedule” set out a comparison of her leave hours as recorded on G & M Childcare’s payroll, in her timesheets and in her diary notes.  She submitted:

   Where the evidence is only supported by the fact that it was a public holiday when it is recorded on the payslip that being leave is taken or that a diary note is the only support to the contention that leave was not taken on that day; it is not through the failure of Renee Mitchell to provide such evidence, but that the continued inability of the Respondent to provide timesheets to enable Renee Mitchell to reconcile the timesheet against the payslip.

   Where there is doubt on the calculation due to lack of timesheets to support the allegation, the court should find in favour of Renee Mitchell because it is the Respondent’s failure to provide timesheets that this has occurred and it is obliged to hold these records for 7 years.  If they cannot provide rebuttal evidence, this evidence should be accepted.  Notably the timesheet for the period 25 December 2006 to 31st December 2006 was produced on the day of the hearing in clear contravention of the Notice to Produce order on 14 February 2013.

2. G & M Childcare submitted that Ms Mitchell had not challenged the accuracy of her pay slips at any time prior to the end of her employment.  It submitted that she had been aware that she was paid holiday pay in accordance with the pay slips provided to her. 

3. Ms Mitchell questioned the accuracy of the pay slips which were admitted into evidence.  However, in respect of a number of leave entries in the pay records, her evidence did not rise above statements in Annexure B to her “Scott Schedule” that she believed she had not taken leave on days she was recorded as having been on leave and that G & M Childcare had not provided copies of her timesheets to contradict her assertions.  I am not persuaded that Ms Mitchell’s uncorroborated memory is to be preferred over the payroll records or that I should resolve the dispute on these elements of Ms Mitchell’s claims in her favour pursuant to the principle in Armory v Delamirie (1722) 1 Stra 505; 93 ER 664; considered in Houghton v Immer (1997) 44 NSWLR 46 at 59. In my view, that principle does not apply in this case.

1. Of the remaining allegedly inaccurate entries in Annexure B to the “Scott Schedule”, I have drawn inferences from the payroll records and have compared those records with Ms Mitchell’s timesheets where these have been relevant:

Period	Holiday hours taken			Reasons
According to:		Assess-ment
Payroll records	Applicant
17/12/07 – 30/12/07	38	23	23	The payroll records treat the Christmas and Boxing Day holidays as annual leave.
31/12/07 – 13/01/08	76	30.5	68.5	The payroll records treat the New Year holiday as annual leave.
15/12/08 – 28/12/08	22	0	22	The payroll records record 54 hours’ ordinary time and 22 hours’ leave.  This reflects a working week from 15 to 19 December, three days’ annual leave from 22 to 24 December and two days’ public holidays on 25 and 26 December.
01/01/09 – 14/01/09	38	45	30	The payroll records record 38 hours’ ordinary time and 38 hours’ leave.  I infer that the centre was closed during the first week of January but open during the second.  I conclude that the payroll records wrongly treat the New Year holiday as annual leave.
30/11/09 – 13/12/09	7.5	0	7.5	The payroll records state that in this fortnight Ms Mitchell had one day’s sick leave and one day of annual leave.  No documentary evidence contradictory of that record was adduced.
28/12/09 – 10/01/10	70	63	63	The payroll records treat New Year’s Day as annual leave.
12/07/10 – 25/07/10	12.5	0	12.5	The payroll records state that Ms Mitchell worked 63.5 hours that week and took 12.5 hour’s leave.  However, her timesheet records that she worked 8.5 days.  It appears that Ms Mitchell was paid for the time when she did not work and on the basis that it was annual leave.  The evidence does not persuade me that it was inappropriate of G & M Childcare to have done this.
04/10/10 – 17/10/10	4.5	7.5	7.5	The payroll records state that Ms Mitchell worked 71.5 hours and took 4.5 hours’ annual leave.  The timesheets for that fortnight record that there was one public holiday, that Ms Mitchell took one day of annual leave and that on another day she only worked for 2 hours.
13/12/10 – 26/12/10	1	0	1	The payroll records state that Ms Mitchell worked 75 hours and took 1 hour’s annual leave.  Her timesheets record that on one day she worked one hour less than usual. It appears that Ms Mitchell was paid for the time when she did not work and on the basis that it was annual leave.  The evidence does not persuade me that it was inappropriate of G & M Childcare to have done this.
07/03/11 – 20/03/11	9	0	15	The payroll records state that Ms Mitchell worked 67 hours and had 9 hours’ annual leave.  Ms Mitchell’s diary records that she had two days off and one sick day during that fortnight.  I accept her diary as the more accurate record.
16/05/11 – 29/05/11	15.5	15	15	The timesheets recorded that Ms Mitchell took 2 days’ leave in this fortnight.  As she worked 7.5 hour days she should have been recorded as having taken 15 hours’ leave not 15.5 hours’.
05/09/11 – 18/09/11	8	7.5	7.5	Ms Mitchell’s diary records that she took 1 day’s leave in this fortnight.  As she worked 7.5 hour days she should have been recorded as having taken 7.5 hours’ leave not 8 hours’.
19/03/12 – 01/04/12	3	0	0	Ms Mitchell’s diary records that she took no  leave in this fortnight.
16/04/12 – 29/04/12	0	22.5	15	Ms Mitchell’s diary records that she took 2 days’ leave in this fortnight.
305	214	287.5

1. Based on the table above, G & M Childcare recorded Ms Mitchell as having taken 17.5 hours’ of annual leave when she had not taken it and, I infer, decreased her accrued leave entitlement accordingly.

2. At the time Ms Mitchell left G & M Childcare, she was entitled to be paid at the rate of $20.33 per hour.  Her unpaid leave entitlement upon the termination of her employment was thus $355.78 to which should be added a 17.5% leave loading of $62.26, giving a total compensation figure in respect of this claim of $418.04.

3. I accept Mr Marzouk’s evidence that he calculated the time worked by Ms Mitchell and, based on that calculation, paid her for accrued annual leave.  However, because of the basis of the relevant calculation, that payment did not address inaccuracies and errors of the sort identified in the above table.  Consequently, the amount paid did not reduce G & M Childcare’s liability to compensate Ms Mitchell for the 17.5 hours of untaken leave referred to above.

Overtime

1. Ms Mitchell submitted that she had worked 7.5 hours a day and that her timesheets and the payroll advices indicated that she had not been paid 10.94 hours of overtime.  Ms Mitchell did not identify any statutory or award entitlement to overtime in respect of the period prior to the commencement of the Modern Award.  Consequently, to the extent that her claims concern work performed before 1 January 2010, they are not made out.

2. G & M Childcare submitted that Ms Mitchell had conceded in cross-examination that it was its policy that employees took time off in lieu rather than being paid overtime.

3. In respect of full-time employees the Modern Award provided for a 38 hour working week and for ordinary hours of work to average 38 hours per week over a one, two or four week cycle.  It also provided in respect of full-time employees that overtime rates applied to work performed outside an employee’s ordinary hours of work which, according to the Award, fell between 6:00am and 6:30pm.  No attempt was made to show that Ms Mitchell worked more than 38 hours per week over any particular cycle or that she worked outside the hours of 6:00am and 6:30pm.  I will assume that overtime was calculated on a fortnightly basis. 

4. Having compared the timesheets and the payroll records applicable to Ms Mitchell, for the purposes of determining whether she was owed any overtime payments I have preferred information contained in the timesheets because those documents contained more detail and most of the relevant entries were initialled by her.  Interestingly, the timesheets record less time at work than do the payroll records for the equivalent periods. 

5. I have concluded that Ms Mitchell was not owed any amount in respect of overtime.  The following table sets out the basis for that conclusion:

Period	Hours worked according to payroll records	Overtime		Assess-ment	Reasons
		Paid overtime according to payroll records	Allegedly unpaid overtime
08/03/10 – 21/03/10	68.75	0	0.5	0	In this fortnight, the timesheets say that Ms Mitchell had one day’s sick leave and two days with no time recorded.  The payroll records say that Ms Mitchell was paid for 68.75 ordinary time hours and 7.5 sick leave hours in this fortnight and the timesheets record that she worked 63.5 hours, either 9 or 9.25 hours per day, all between 6:00am and 6:30pm.  I infer that Ms Mitchell’s long days were balanced in this pay period by two days’ time off in lieu when she was not at work.
20/09/10 – 03/10/10	76	0	0.5	0	Although the payroll records say for this fortnight that Ms Mitchell was paid for 76 ordinary time hours, the timesheets record that she worked 70.5 hours, either 7 or 7.5 hours per day.
10/01/11 – 23/01/11	38	0	0.5	0	In this fortnight, the timesheets and the payroll records say that Ms Mitchell had one week’s annual leave.  Although the payroll records also say that Ms Mitchell was paid for 38 ordinary time hours and 38 annual leave hours in this fortnight, the timesheets record that she worked 35.5 hours, either 7 or 7.5 hours per day.
24/01/11 – 30/01/11	76	0	1	0	In this fortnight, the timesheets say that Ms Mitchell had one public holiday.  Although the payroll records also say that Ms Mitchell was paid for 76 ordinary time hours in this fortnight, the timesheets record that she worked 64 hours, either 7 or 7.5 hours per day.
07/02/11 – 20/02/11	61	0	1	0	In this fortnight, the timesheets say that Ms Mitchell had two days’ sick leave.  Although the payroll records also say that Ms Mitchell was paid for 61 ordinary time hours and 15 sick leave hours in this fortnight, the timesheets record she worked 57 hours, either 7 or 7.5 hours per day.
04/04/11 – 17/04/11	76	0	1	0	Although the payroll records say for this fortnight that Ms Mitchell was paid for 76 ordinary time hours, the timesheets record that she worked 71 hours, either 7 or 7.5 hours per day.
18/04/11 – 01/05/11	68.5	0	0.5	0	In this fortnight, the timesheets say that Ms Mitchell had three public holidays and took one day’s sick leave.  Although the payroll records say that Ms Mitchell was paid for 68.5 ordinary time hours and 7.5 sick leave hours in this fortnight, the timesheets record that she worked 43 hours, either 7 or 7.5 hours per day.
02/05/11 – 15/05/11	76	0	1	0	Although the payroll records say for this fortnight that Ms Mitchell was paid for 76 ordinary time hours, the timesheets record that she worked 71 hours, either 7 or 7.5 hours per day
16/05/11 – 29/05/11	60.5	0	0.5	0	In this fortnight, the timesheets say that Ms Mitchell had two days’ annual leave.  Although the payroll records say that Ms Mitchell was paid for 60.5 ordinary time hours and 15.5 annual leave hours in this fortnight, the timesheets record that she worked 56.5 hours, either 6.5, 7 or 7.5 hours per day.
30/05/11 – 12/06/11	69.5	0	0.5	0	Although the payroll records say for this fortnight that Ms Mitchell was paid for 69.5 ordinary time hours and 6.5 sick leave hours, the timesheets record that she worked 65 hours, either 7 or 7.5 hours per day
13/06/11 – 26/06/11	76	0	1.33	0	In this fortnight, the timesheets say that Ms Mitchell had one public holiday.  Although the payroll records say that Ms Mitchell was paid for 76 ordinary time hours in this fortnight, the timesheets record that she worked 64.34 hours, either 7, 7.17 or 7.5 hours per day.
0	8.33	0

Incorrect pay amounts in pay slips

1. The table below contains the difference in the pay amounts set out in Ms Mitchell’s pay slips and in her bank statements as alleged by her:

Pay period	Pay slip	Bank Statement	Balance owing
08/01/07 – 14/01/07	$556.40	$478.20	$78.20
09/04/07 – 15/04/07	$485.90	No payment	$485.90
23/04/07 – 06/05/07	$956.40	$825.47	$130.93
02/07/07 – 15/07/07	$1,153.95	$1,151.95	$2.00
15/06/09 – 28/06/09	$1,198.40	$1,064.00	$134.40
05/10/09 – 18/10/09	$1,201.45	$1,105.45	$96.00
19/10/09 – 01/11/09	$1,201.45	$1,193.45	$8.00
02/11/09 – 15/11/09	$1,201.45	$1,193.45	$8.00
16/11/09 – 27/12/09	$1,201.45	$1,193.45	$8.00
27/06/11 – 10/07/11	$1,288.00	$1,282.25	$5.75
$10,444.85	$9,487.67	$957.18

1. I have examined Ms Mitchell’s pay slips and compared them with her bank records and have found the above figures to be correct.  I again note G &M Childcare’s concession on this claim.  I therefore find that G & M Childcare owes Ms Mitchell $957.18 in respect of underpaid wages.

Unpaid notice period

1. Ms Mitchell submitted that she had initially sought to tender her resignation on 22 May 2012 but had been told by Mr Marzouk to rethink her position.

2. G & M Childcare submitted that the Court ought to find that:

   a)on 22 May 2012 Ms Mitchell gave less than two weeks’ notice of her resignation.  It submitted that if she had given two weeks’ notice, that notice would have expired on 5 June 2012 and not on 2 June 2012 as she asserted;

   b)on 22 May 2012 Ms Mitchell did not return to work;

   c)Ms Mitchell’s decision not to return to work was unilateral;

   d)on 28 May 2012 Ms Mitchell confirmed her two week notice period; and

   e)on 28 May 2012 Ms Mitchell obtained a medical certificate certifying her as unable to attend work from 28 May 2012 to 1 June 2012.

3. G & M Childcare submitted that Ms Mitchell had abandoned her employment by failing to serve out her notice period.

4. Ms Mitchell claimed pay for the period between her notice on 22 May 2012 and her 2 June 2012 separation date.  She did not attend work in that period and so would be entitled to no payment for it absent other factors.  Ms Mitchell did submit a medical certificate on 28 May 2012 in respect of the remaining period of her notice but I conclude that, by then, she had abandoned her employment.  I find that Ms Mitchell is entitled to no amount in respect of wages for the period commencing on 22 May 2012.

Superannuation

1. Ms Mitchell alleged that she was entitled to compensation in relation to underpaid superannuation contributions.  Clause 20 of the Modern Award provides that employers must make at least the statutory minimum superannuation contributions for an employee.  At all relevant times, the minimum rate was 9% of wages.  In this case, superannuation contributions should have been made in respect of the wages for higher duties and the unpaid accrued annual leave which I have found to be owing to Ms Mitchell.  They total $617.79.  The underpaid superannuation contributions therefore total $55.60.

2. The amounts which Ms Mitchell was underpaid considered above at [91] and [92] do not form part of this calculation because I infer that superannuation was paid on the amounts recorded on the relevant pay slips, rather than on the incorrect amounts paid into Ms Mitchell’s bank account.

Costs

1. Ms Mitchell submitted that G & M Childcare had defended this proceeding when it had had no reasonable prospects of success. She sought her costs under s.570 of the FWA on the basis that G & M Childcare’s unreasonable acts and omissions had led her to incur those costs. She also submitted that G & M Childcare sought to make good certain of her entitlements without facing any repercussions for its failure to pay her. She submitted that in those circumstances, if her claim was successful she would have incurred significant costs seeking the payment of her entitlements and those costs would effectively rob her of her entitlements.

2. Ms Mitchell has not been successful on several aspects of her claims.  In those circumstances, I find that it was not unreasonable for G & M Childcare to defend this proceeding.  The fact that it was not successful in all aspects of its defence does not alter that conclusion.

Penalties

1. Ms Mitchell acknowledged that I had ruled at the hearing of this application that she could not seek the imposition of pecuniary penalties in a small claims proceeding but submitted that the Court could, on its own initiative, make orders pursuant to s.545(4)(a) of the FWA, including pecuniary penalty orders. She submitted that the Court should make the findings of fact she sought and also order G & M Childcare to pay pecuniary penalties.

2. Section 548 of the FWA relevantly provides:

   548 Plaintiffs may choose small claims procedure

   (1)Proceedings are to be dealt with as small claims proceedings under this section if:

   (a)a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Circuit Court; and

   (b)the order relates to an amount referred to in subsection (1A); and

   (c)the person indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.

   (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); …

3. The proceeding was, at all times until the hearing, brought as a small claim proceeding and no pecuniary penalties sought.  It was only at the hearing that the issue of penalties was raised for the first time.  A party may not utilise the small claim procedure, which is not governed by the rules of evidence and is required to proceed in an informal manner without regard to “legal forms and technicalities”, and seek the imposition of penalties, which is a most serious matter.  If a party is to be exposed to the imposition of penalties, that party is entitled to have its liability for such penalties determined following a hearing which has observed the rules of evidence and which has not proceeded in an informal manner.  In this matter no application was made to abandon the small claims procedure and, amongst other things, apply the rules of evidence in the conduct of the hearing.

4. It would not be fair to consider the imposition of penalties in such circumstances. 

CONCLUSION

1. I find that G & M Childcare is liable to pay compensation to Ms Mitchell of $1,631.51 plus interest of $747.77.

I certify that the preceding one-hundred and five (105) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  7 April 2015

CORRECTIONS

1. Paragraph 85 line 6 – delete “25” insert “17.5”.