| [2017] FWC 1937 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal (consent arbitration)
Mr Dalton Crawford
v
A. Halid & J. Memedovski T/A Goodys Charcoal Chicken
(C2017/538)
COMMISSIONER ROE |
MELBOURNE, 6 APRIL 2017 |
Application to deal with contraventions involving dismissal – consent arbitration.
[1] A certificate confirming that the matter was not able to be resolved through conciliation at the conference convened by the Fair Work Commission was issued on 16 January 2016. The parties agreed to arbitration within 14 days.
[2] Mr Dalton Crawford made an application under Section 369 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a general protections dismissal related dispute. Mr Dalton Crawford alleged that A. Halid & Memedovski T/A Goodys Charcoal Chicken (Goodys) had dismissed him because he exercised his workplace right to challenge the underpayment of his wages.
[3] A conference was conducted by the Fair Work Commission but the parties were unable to reach an agreement and a certificate was issued under Section 368(3)(a) of the Act.
[4] Within fourteen days of the issue of the certificate the parties gave notice under Section 369(1)(b) by using the appropriate forms that they had reached an agreement for the Commission to deal with the dispute by arbitration.
[5] The matters to be decided:
1. Did Mr Crawford exercise a workplace right? (Section 341)
2. Did Goodys take adverse action against Mr Crawford? (Section 342)
3. Did Goodys take the adverse action because of a prohibited reason or reasons that included that reason? (Section 340)
[6] The parties agree and I am satisfied that Mr Crawford was employed by Goodys on a casual basis from 14 March 2016 until his dismissal on 27 September 2016. I am satisfied from the uncontested evidence of Mr Crawford that he worked at least one regular shift throughout this period and that shift was 5 hours on a Saturday. In addition Mr Crawford worked up to two additional shifts of between 3 and 5 hours in some weeks as required by the employer. The parties agree and I am satisfied that Mr Crawford was dismissed at the initiative of the employer on 27 September 2016. In response to a request from Mr Crawford’s mother requesting advice as to further work Ms Memedovski replied by text message that “Dalton no longer works for us and I don’t need to send any info about me… its my day off and I need to rest”.
[7] I am satisfied by the uncontested evidence of Mr Crawford and Ms Crawford that on 15 September 2016 Ms Crawford raised a complaint with Ms Memedovski about why Mr Crawford was being paid less than the minimum wage for a 16 year old casual worker under the Fast Food Industry Award 2010. I also accept that on 17 September 2016 Ms Memedovski told Mr Crawford that the pay issue was none of his mother’s business and denied that there was an underpayment. On 19 September 2016, after consulting the Fair Work Ombudsman, Ms Crawford wrote to the employer and outlined the alleged underpayment and the basis for that allegation. I accept the evidence of Mr Crawford and Ms Crawford that shortly after this Ms Memedovski rang Mr Crawford and asked “what is your mother’s problem”. Ms Memedovski did not respond to the letter.
[8] It is not contested that on Saturday 24 September 2016 Mr Crawford turned up for his Saturday shift and was told by Ms Memedovski’s sister, the other partner in the business, that Ms Memedovski had told her that Mr Crawford would not be returning to work and therefore his shift had been covered and he was not needed. Mr Crawford said that this was not true. Ms Memedovski then phoned Mr Crawford and said that there had been a misunderstanding and claimed that Ms Crawford had said that he would not be coming back. Mr Crawford and Ms Crawford deny that this was ever said. Ms Memedovski then said that if a tax file number was provided then “maybe we can come to some arrangement”. Ms Memedovski agrees that the issue of the tax file number was raised at that time.
[9] On Monday 26 September 2016 Mr Crawford sent a text about his shift for the coming Saturday but did not receive a reply.
[10] All parties agree that on Tuesday 27 September 2016 Mr Crawford rang Ms Memedovski to inquire about his Saturday shift and Ms Memedovski told Mr Crawford that he would not be working until the issues were worked out with his mother. The issue of the claim concerning underpayment of wages and the issue of the requirement to provide a tax file number were raised as the outstanding issues by Ms Memedovski.
[11] Later in that day Ms Crawford corresponded with Ms Memedovski and Ms Memedovski dismissed Mr Crawford from his employment by the text message earlier referred to.
[12] It is incumbent on Mr Crawford to prove he exercised a workplace right.
[13] Section 341 of the Act defines a workplace right as follows:
“341 Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.
[14] I am satisfied that Mr Crawford exercised a workplace right when he and his mother complained that he had been underpaid when compared to his entitlements under the Fast Food Industry Award 2010.
[15] I am satisfied that Mr Crawford was underpaid. Mr Crawford was paid $8 per hour (Monday to Friday) when he was 15 years of age and this increased to $9 per hour when he turned 16. Mr Crawford was paid $10 per hour on Saturday. Mr Crawford also received food from the take away shop on occasion. Mr Crawford’s employment was covered by the Award and not by an enterprise agreement. Mr Crawford also worked at least one public holiday and he was not paid additional penalty payment for work on that day. Mr Crawford was paid an even lower rate during his first three shifts of employment on the grounds that he was being trained or seeing if the work was suitable.
[16] Ms Memedovski said that employees were told that work on a public holiday was voluntary and that this explained why they were not paid penalty rates.
[17] Ms Memedovski said that a lower rate of pay was justified because it was a small business and because the performance of some new employees was lower.
[18] I am satisfied that the Award does not provide for a lower rate to be paid because an employee is inexperienced or less productive or because of the size of the business or because work on a public holiday is voluntary or because food is provided on occasion.
[19] I am satisfied that the rates paid to Mr Crawford during his period of employment were significantly below the award rates for a casual junior employee of his age. In requesting directly and through his mother that he be paid the Award rates Mr Crawford was exercising a workplace right.
[20] It is not disputed that termination of employment is adverse action. I therefore find that Goodys took adverse action against Mr Crawford.
[21] Whether Goodys took adverse action against Mr Crawford is a question of fact. As the Full Bench said in Neil Keep v Performance Automobiles Pty Ltd 1 the Fair Work Commission’s task is:
“to determine, on the balance of probabilities, ‘why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason.’”
[22] Evidence of the decision maker is clearly relevant to determining the answer to this question. As the Full Bench also said:
“It is apparent from the above extract that evidence from the decision maker which is accepted as reliable ‘is capable’ of discharging the burden of proof cast on the employer by s.361. But this does not mean that evidence by a credible decision-maker that adverse action was not taken because of any prohibited reason will necessarily always discharge the statutory onus. It is open to the FWC to accept as honest and credible a decision maker’s explanation of the decision for taking adverse action, then to weigh all the evidence and the overall facts and circumstances of the case, and not be satisfied that the employer has discharged the statutory onus.” 2
[23] In this case the decision maker was Ms Memedovski. It was her evidence that there were three reasons why she dismissed Mr Crawford.
1. She was frustrated at Mr Crawford’s consistent failure to provide his tax file number despite frequent requests.
2. She was frustrated that Mr Crawford did not raise any complaint about his pay rate immediately after he completed his three days of trial or training at the start of his employment.
3. She was frustrated at Ms Crawford’s persistent complaints about alleged underpayment of her son including her raising the matter with other employees and their parents.
[24] Ms Crawford on behalf of her son disputed that these were the real motivating reasons and submits that the proximity of the dismissal to the verbal and written correspondence concerning the underpayment should lead to a finding that the complaint concerning underpayment was the real and operative reason for the dismissal.
[25] Having considered all the evidence I am satisfied that the second and the third reasons given by Ms Memedovski are taken together an admission that the reasons for dismissal included that Mr Crawford, through Ms Crawford, was complaining about underpayment of wages and actively seeking to rectify that underpayment. I am satisfied that reasons for dismissal therefore included a prohibited reason. An employee has a right to be paid their entitlements under the Award and there is no requirement for an employee to raise any concerns about that matter at the time of engagement and the right exists even where an employee has acquiesced to the underpayment.
[26] I accept the evidence of Ms Memedovski that this was not the only reason for the dismissal and that the other reason for the dismissal related to the failure to provide the tax file number. Mr Crawford gave evidence that he was asked to fill in the “employee tax file number declaration form” for the first time in June 2016. Ms Memedovski says that she first made the request in mid April 2016. Mr Crawford accepts that he delayed completing the form for several weeks. Ms Crawford and Ms Memedovski agree that they had conversations in June 2016 about completion of the form. Ms Crawford says that Ms Memedovski had said that the form needed to be completed but she did not need the actual TFN. Ms Memedovski says that she said that she was not requiring Mr Crawford to apply for a new TFN she was only requiring him to fill in the form. Mr Crawford completed the form and filled in all details required except the actual TFN. Ms Memedovski says her tax advisor told her that she needed to get the TFN. However, I am not satisfied that after June 2016 Ms Memedovski followed this matter up further until around the time of the dismissal in late December 2016. In this respect I found the evidence of Ms Crawford and Mr Crawford more consistent and credible. Ms Crawford gave evidence that she could not understand why the TFN issue was relevant to the resolution of the underpayment claim when it was raised at that time.
[27] I accept that there was some misunderstanding and some miscommunication concerning the tax file number issue. I accept that Ms Memedovski was frustrated about this issue and that it was part of the motivation for her decision to dismiss Mr Crawford. However, this was not the sole operative reason for the dismissal.
[28] I have found that the reasons for dismissal included that Mr Crawford, through Ms Crawford, was complaining about underpayment of wages and actively seeking to rectify that underpayment. I am satisfied that reasons for dismissal therefore included a prohibited reason.
[29] I turn to consider any orders that may be suitable in this matter.
[30] The orders that may be made by the Commission when dealing with a general protections dismissal dispute are set out within Section 369(2) as follows:
“369 Dealing with a dismissal dispute by arbitration
(1) This section applies if:
(a) the FWC issues a certificate under paragraph 368(3)(a) in relation to the dispute; and
(b) the parties notify the FWC that they agree to the FWC arbitrating the dispute; and
(c) the notification:
(i) is given to the FWC within 14 days after the day the certificate is issued, or within such period as the FWC allows on an application made during or after those 14 days; and
(ii) complies with any requirements prescribed by the procedural rules; and
(d) sections 726, 728, 729, 730, 731 and 732 do not apply.
Note: Sections 726, 728, 729, 730, 731 and 732 prevent multiple applications or complaints of a kind referred to in those sections from being made in relation to the same dispute. A notification can only be made under this section where there is no such other application or complaint in relation to the dispute at the time the notification is made. Generally, once a notification is made no such application or complaint can be made in relation to the dispute (see section 727).
(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:
(a) an order for reinstatement of the person;
(b) an order for the payment of compensation to the person;
(c) an order for payment of an amount to the person for remuneration lost;
(d) an order to maintain the continuity of the person’s employment;
(e) an order to maintain the period of the person’s continuous service with the employer.
(3) A person to whom an order under subsection (2) applies must not contravene a term of the order.
Note: This subsection is a civil remedy provision (see Part 4-1).”
[31] Mr Crawford does not seek reinstatement as a consequence of a finding that the general protections provisions of the Act have been contravened in respect of his dismissal. In any event, I do not consider it appropriate. Mr Crawford has now found more satisfactory employment.
[32] Notwithstanding this situation, Mr Crawford seeks compensation both for economic and non-economic loss, that is, orders to be made respectively under Section 369(2)(c) and (b). The issue of the underpayment of wages has or is being determined in another jurisdiction and the parties agree I should not include that matter in assessment of any compensation or loss.
[33] In relation to the assessment of compensation in general protections matters in the Courts, and noting there are differences in the basis of orders that may be made by a Court and this Commission, the following observations have been made about the purpose of compensation:
“The calculation of compensation under s.545 of the Act is approached in accordance with ordinary principles. The fundamental purpose of damages or compensation under s.545 of the Act is to provide a monetary sum to put the employee in the position he or she would have been in if the employer had performed the contract or not contravened the act. As a majority of the High Court stated in Haines v Bendall (1991) 172 CLR 60:
“The settled principle governing the assessment of compensatory damages, whether in actions of tort or contract, is that the injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been in if the contract had been performed or the tort had not been committed.”” 3
[34] While the provisions of Section 545(2) of the Act allow for an order for “compensation for loss that a person has suffered because of a contravention”, the provisions of Section 369(2), which must be applied in this matter, refer to the making of “an order for the payment of compensation”.
[35] In application of these principles the following has also been observed:
“8. The authorities reveal that the assessment of compensation under ss.545(1) and (2) of the Fair Work Act can include both economic and non-economic loss. Insofar as economic loss is concerned, the approach that seems to find favour is that stated in Re Bostik Australia Proprietary Limited v Gorgevski [1992] FCA 209; [1992] 36 FCR 20. The relevant passage is as follows:◦ Where an employee is wrongfully dismissed, he is entitled, subject to mitigation, to damages equivalent to the wages he would have earned under the contract from the date of the dismissal to the end of the contract. The date when the contract would have come to an end, however, must be ascertained on the assumption that the employer would have exercised any power he may have had to bring the contract to an end in the way most beneficial to himself; that is to say, that he would have determined the contract at the earliest date at which he could properly do so.
9. Bostik was a different case to this one. It was dealing with wrongful dismissal, and there are some other factual differences. But the principle remains apposite. It has been applied, most recently, by Barker J of the Federal Court in Australian Licensed Aircraft Engineers Association v International Aviation Assistance Pty Ltd [2011] FCA 333. It is the principle that I intend to apply in this case.” 4
[36] Mr Crawford seeks payment of $583.20 as compensation for economic loss. The basis for this claim is:
● Although Mr Crawford commonly worked additional shifts, the only shift he worked each week was the five hour Saturday shift. Under the Award he was entitled to $14.58 per hour on a Saturday. There were eight weeks between the time of the dismissal and the time when Mr Crawford succeeded in obtaining a new job. The total loss is therefore conservatively put at $583.20.
● Mr Crawford gave evidence, which I accept, that he vigorously sought new employment during the period commencing immediately after the dismissal. He applied on line, he distributed his resume and he visited various workplaces.
● Mr Crawford gave evidence that he earns more, but not a lot more, in his new job than in his old job.
[37] I consider that Mr Crawford has arguably understated the amount he could claim for economic loss. Goodys did not contest this element of the compensation calculation. I am prepared to accept his claim in full in respect to this matter.
[38] Mr Crawford seeks compensation for non-economic loss. He gave evidence that he suffered significant stress and upset as a result of the loss of employment. I have no doubt that this is correct. This was Mr Crawford’s first job and its loss in these unjust circumstances caused hurt and humiliation. However, there was no evidence of psychological damage or treatment.
[39] Goodys argued that there should be no compensation for hurt and humiliation because Goodys had suffered distress and harassment from Ms Crawford. I am not satisfied that this is particularly relevant to my assessment for compensation. Furthermore, I am not satisfied that Ms Crawford did anything other than vigorously defend her son’s rights. If Ms Memedovski had shown a willingness to respect her obligations under the Award then there might have been some basis for criticism of the manner in which Ms Crawford proceeded but I am satisfied by Ms Memedovski’s own evidence that she failed to consider her obligations under the Award and instead decided that because she was a small business she should not be required to follow the Award.
[40] In all of the circumstances I consider that there should be some modest compensation for the hurt and humiliation suffered by Mr Crawford.
[41] I consider that $600 is the appropriate amount.
[42] The factors which I have taken into account in my assessment of non-economic loss include that:
● This was Mr Crawford’s first job and that as an employer Ms Memedovski had a particular responsibility to Mr Crawford.
● The Award provides significantly discounted rates to junior employees like Mr Crawford partly in recognition of the duty of care which employers have to such young persons.
● Mr Crawford gave evidence that earning an income was particularly important to him because he is engaged in a sport in which it is expensive to participate.
● The potential and likely damage to future employment prospects as a result of Mr Crawford’s unlawful termination.
● The serious nature of the breach of workplace rights involved. Employees have a right to be paid at least the minimum Award rates and to be able to raise concerns about these matters without fear of retribution. In this case the level of underpayment was significant and the employer failed to respond to a number of complaints.
[43] These matters are balanced against the following factors:
● There was limited evidence concerning details of the hurt and humiliation suffered by Mr Crawford.
● Mr Crawford succeeded in getting a better job in a relatively short period of time.
[44] For the reasons set out above, I have found that:
● Mr Crawford’s dismissal was a contravention of the general protections set out in Chapter 3, Part 3-1 of the Act;
● It is not appropriate to make an order under Section 369(2)(a) for his reinstatement, and that consequential orders are not necessary under Section 369(2)(d) and (e) respectively for continuity of employment or maintenance of continuous services;
● It is appropriate in all the circumstances to make an order under Section 369(2)(b) for the payment to him of compensation for his non-economic loss; and
● It is appropriate in all the circumstances to make an order under Section 369(2)(c) for the payment to him for remuneration lost, in respect of his economic loss.
[45] An order requiring Goodys to make payments to Mr Crawford in the amounts of $583.20 for remuneration lost, together with $600 compensation for his non-economic loss is issued at the same time as this decision. The order will require payment of these amounts within 14 days of the date of this decision.
[46] In relation to the order for $583.20, the order will specify that the amount is to be taxed as wages according to law.
COMMISSIONER
Appearances:
Ms K Crawford appeared for the Applicant.
Ms J Memedovski appeared for the Respondent.
Hearing details:
2017
Melbourne
April 3
2 [2014] FWCFB 8941 at [51].
3 Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875 at [351].
4 Heriot v Sayfa Systems Pty Limited (No.2) [2014] FCCA 1627 at [8] - [9].
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