WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2015 WAIRC 00500

DELIVERED : THURSDAY, 9 JULY 2015

FILE NO. : M 92 OF 2014

CLAIMANT

AND

Ashani Holdings Pty Ltd

RESPONDENT

Catchwords : Alleged contravention of Children’s Services Award 2010 (MA000120); Alleged payment of incorrect rate of pay; Alleged failure to pay annual leave entitlement upon termination.

Legislation : Fair Work Act 2009

  Fair Work Regulations 2009

  Industrial Magistrates Courts (General Jurisdiction) Regulations 2005

Instruments : Children’s Services Award 2010 (MA000120)

Result : Claim proven in part

Representation:

Claimant :  In Person

Respondent : Ms D Parbat (Director) of the Respondent

REASONS FOR DECISION

Overview

1          Ashani Holdings Pty Ltd (the Respondent), runs a child care centre known as Bright Sparks Early Learning Centre.  In 2013 the Respondent employed Ms Pratyasha Gungabissoon (the Claimant) as a part-time Child Care Support Worker.  It is not in dispute that the Children’s Services Award 2010 (MA000120) (the Award) governed her employment.

2          Although the Claimant was not able to articulate the commencement date of her employment, payslips and payroll journals produced by the parties indicate that she commenced her employment with the Respondent in or about early February 2013. She remained in that employment until she resigned on 16 October 2013.

3          Upon appointment, the Respondent’s director, Ms Dhana Parbat informed the Claimant that she would be paid at the rate of $16.32 per hour and that the number of hours she would be required to work would be dependent on the needs of the Respondent. The Claimant initially worked two hours per day (3:00pm to 5:00pm), but was soon asked to work extra hours. By the second week of her employment she was working five to six hours per day and then in March 2013, she was asked to work seven and a half hours per day from 7:00am to 3:30pm Monday to Friday with a one hour lunch break.

4          From about March 2013 onwards the Claimant worked in the kitchen commencing at 7:00am each morning for between one and one and a half hours.  She was required to prepare morning tea, lunch and afternoon tea. She worked alone in the kitchen, save for the first couple of days when trained. Apart from preparing food, she was also required to check and record fridge and food temperatures. Her duties also included the monitoring of stock levels and ordering of food supplies as required. She was also required to clean the kitchen and food utensils.

5          After completing her kitchen duties, the Claimant would assist child care workers, mainly in the babies and toddlers’ rooms. On some occasions she assisted in the kindy room. It was her duty to replace the qualified child-care worker whilst that person was at lunch for an hour. During that time she worked unsupervised. Her duties in those areas included preparing baby bottles, cleaning food spills, changing nappies and participating in children’s activities such as painting and reading. At the end of each day, she was required to wash all of the dishes in the kitchen. That pattern of work continued until her employment ended.

6          On 12 August 2013 the Claimant’s pay rate was increased to $16.75 per hour. The Claimant was paid at that increased rate until her employment ended.

7          The Claimant’s employment ended in October 2013. The Claimant had intended to give Ms Parbat one weeks’ notice of her resignation by personally handing her the notice on Monday 14 October 2013, however as things turned out, Ms Parbat did not attend work that day. Consequently, she gave Ms Parbat her resignation letter the following day. The next day (Wednesday) Ms Parbat asked the Claimant not to come to work for the remainder of the week. The Claimant accepted that. On the available evidence it appears that there was a mutual agreement reached between the parties that the Claimant’s employment would end on Wednesday, 16 October 2013 rather than Friday, 18 October 2013.

8          Soon after her employment came to an end the Claimant confronted Ms Parbat about annual leave entitlements not paid to her on termination. The two of them became involved in a verbal altercation in which the Claimant was warned to leave the Respondent’s premises and not return. Consequently the Claimant complained to the Fair Work Ombudsman (FWO) about her unpaid leave entitlements.

9          As a result of the investigation into the complaint, the FWO determined that Respondent owed the Claimant $3,456.31. That amount is comprised of underpaid wages in the sum of $1,741.08, and $1,715.23 in outstanding annual leave entitlements. The FWO determined that the Claimant had been paid the incorrect hourly rate of pay rate for her position as a Level 1.1 Support Worker.

10       The Claimant adopted that determination and commenced this action on 24 June 2014, in which she seeks to recover $3,456.31.  As a consequence of the Respondent’s submissions that followed the institution of the proceedings, the FWO reviewed his findings and on 9 September 2014 wrote to the Claimant. I have regard to that letter pursuant to regulation 35(2) of the Industrial Magistrates Court (General Jurisdiction) Regulations 2005. In that  letter, dated 9 September 2014, the FWO said, inter alia:

“According to the documents provided you were classified by the Company as a Level 1.1 employee and were being paid your ordinary hours at the rate of $16.75 per hour.

While this rate of pay was correct for a Level 1 employee, the FWO has determined that the Company had incorrectly classified your Level of employment under the Award. Based on your indicative duties the Company should have classified you as a Level 2.1 employee and subsequently this resulted in the underpayments identified in the Determination of Contravention.”

11       It is clear that the FWO resiled from his previous position that the Claimant had been paid at the incorrect rate.  Indeed the FWO accepted that the Claimant had been paid her correct hourly rate. The basis for the FWO alleging underpayment had changed. 

Issues

12      The following issues require resolution:

1. Was the Claimant paid her correct rate of pay as a Level 1.1 Support Worker?
2. In any event should she have been classified as a Level 2.1 Support Worker and if so, what was her correct rate of pay at that level?
3. Was the Claimant, on the termination of her employment, paid her annual leave entitlements, and if not, what is she owed?

Was the Claimant Paid Her Correct Rate of Pay as a Level 1.1 Support Worker?

13      The Claimant was initially paid an hourly rate of $16.32 which was increased to $16.75 on 12 August 2013. She continued to receive $16.75 per hour until her employment ended.

14      Although the FWO in his initial findings suggested that the Claimant was entitled to higher hourly rates, he later accepted that the Claimant had been paid at her correct hourly rates. That concession was rightly made. Indeed there is no evidentiary material before me which contradicts that conclusion. I find that the Respondent had in fact paid the Claimant her wages at the correct applicable hourly rate, save that as a consequence of the 2012 Annual Wage Review, the Claimant’s hourly rate increased from $16.32 to $16.75 with effect from 1 July 2013. The Respondent delayed the implementation of that increase until 12 August 2013. It follows that the Claimant was underpaid as Level 1.1 Support Worker in the period between 1 July 2013 and 11 August 2013.

Should the Claimant have been classified at a higher level?

15      The indicative duties for Level 1 and Level 2 employees are contained in Clause 3.2 (Support Worker) of Schedule B of the Award, which provides:

“B.2 Support Worker

 B.2.1 Level 1

This is an untrained, unqualified employee. Employees at this level will work under supervision with guidance and direction.

(a)   Indicative duties

• Assisting a qualified cook and/or basic food preparation and/or duties of a kitchen hand.
• Laundry work.
• Cleaning.
• Gardening.
• Driving.
• Maintenance (non-trade).
• Administrative duties.

(b)   Progression

An employee will progress to Children’s Services Support Employee (CSSE) Level 2 after 12 months, or earlier if the employee is performing the duties of a children’s Services support employee Level 2.

 B.2.2 Level 2

 An employee at this level will possess skills, training and experience above that of a CSSE Level 1 and below that of a CSSE level 3. An employee at this level works under routine supervision and exercises discretion consistent with their skills and experience.

 Indicative duties

• Assisting a qualified cook and/or basic food preparation and/or duties of a kitchen hand.
• Laundry work.
• Cleaning.
• Gardening.
• Driving.
• Maintenance (non-trade).
• Administrative duties.”

16      Relevantly Clause B.1.2 of Schedule B of the Award sets out the criteria and indicative duties of a Level 2 Children’s Services Support Employee.  It provides:

“B.1.2 Level 2

This is an employee who has completed 12 months in Level 1, or a relevant AQF Certificate II, or in the opinion of the employer has sufficient knowledge and experience to perform the work within the scope of this level. An employee at this level has limited knowledge and experience in children’s services and is expected to take limited responsibility for their own work.

Indicative duties

• Assist in the implementation of the children’s program under supervision.
• Assist in the implementation of daily care routines.
• Develop awareness of and assist in maintenance of the health and safety of the children in care.
• Give each child individual attention and comfort as required.
• Understand and work according to the centre or service’s policies and procedures.
• Demonstrate knowledge of hygienic handling of food and equipment.”

17      The evidence before me, much of which in uncontroversial, establishes that the Claimant had the responsibility to run the kitchen on a daily basis preparing morning tea, lunches and afternoon tea. She generally worked alone and unsupervised in cooking meals. She was responsible for monitoring the temperature of both food and equipment. She was also responsible for keeping an eye on stock levels and ordering stock when required. When not working in the kitchen, she performed duties in the children’s rooms both supervised and unsupervised. Notwithstanding that the Claimant had no formal qualifications and had less than 12 months experience in the industry, she performed daily duties indicative of a Level 2 employee.

18      Ms Parbat, on behalf of the Respondent, submitted that the kitchen duties performed by the Claimant were a minor and incidental part of her duties. Indeed, such duties were such a minor part of her work generally, that she ought not to be classified as a Level 2 worker.

19      With respect, I disagree with Ms Parbat. The evidence indicates that the Claimant worked alone in the kitchen on a daily basis for one to one and a half hours each day. She had responsibility for the kitchen and effectively ran it. In doing so, she demonstrated knowledge of hygienic handling of food and equipment. Her duties and responsibilities were greater than that of a Level 1 employee. In arriving at that determination I have accepted the Claimant’s testimony. I found her to be an honest witness.

20      It follows from what I have said that the Claimant was not paid at the correct rate. From March 2013 until 30 June 2013 she should have been paid at an hourly rate of $16.95, which was the correct Award rate for a Level 2.1 Support Worker.   From 1 July 2013, the Claimant should have been paid at an hourly rate of $17.39. The Claimant was underpaid 63 cents for each hour worked from March 2013 to 30 June 2013.  From 1 July 2013 until 11 August 2013, she was underpaid $1.07 for the 130.5 hours she worked.  Thereafter, the Claimant was underpaid 64 cents for each hour worked until her employment ended.

21      Working from the Respondent’s payroll journal, which is annexed to the Claimant’s Claim, I am able to determine the hours worked by the Claimant. It appears from the information therein, that her hours increased from around mid-March 2013. I find therefore, that the Claimant commenced working in the kitchen from around that time. I find that the Claimant worked a total of 492.75 hours from mid-March 2013 until 30 June 2013. She was underpaid 63 cents for each of those hours, amounting to $310.43. Between 1 July 2013 and 11 August 2013, the Claimant was underpaid a total of $139.64.  Thereafter, she worked a total of 339.25 hours and was underpaid 64 cents for each of those hours, amounting to $217.12.

22      The Respondent has, in breach of Clause 14 of the Award, underpaid the Claimant $667.19. That occurred as a result of the Respondent applying the incorrect classification to her.

Annual Leave Entitlements

23      The Claimant asserts that she was not paid her annual leave entitlements upon the termination of her employment. The Respondent initially suggested that payment had been made, but did not produce any evidence showing that payment. The party asserting payment bears the onus of proving the same on the balance of probabilities. During the course of the Trial, Ms Parbat indicated that she does not know whether the annual leave payment was made.

24      In that regard, the Claimant produced her bank statements of the account into which the Respondent deposited her pay (Exhibit 1). It suffices to say that Exhibit 1 does not disclose the payment of annual leave entitlements to the Claimant. In view of that, and the Claimant’s testimony that she has not been paid her annual leave entitlements, I find that to be the case. Indeed, the non-payment of her annual leave entitlements gave rise to the Claimant’s complaint to the FWO and this Claim. If payment had been made, the matter is unlikely to have progressed to this point.

25      Having determined that the Claimant was not paid her annual leave entitlements, I move to consider the quantum of that entitlement.

26      Ms Parbat suggested in her testimony and submissions that the Claimant is entitled to only 71 hours of annual leave. She said that although the Claimant would have been entitled to 78.5 hours of annual leave, an amount of seven and a half hours (equivalent to one day) had been deducted from her entitlements on account of the Claimant not having given sufficient notice of her resignation.

27      In my view, that deduction was both inappropriate and impermissible. On her own case, Ms Parbat contends that the Claimant’s employment was terminated by mutual agreement. That being the case, the requirement for notice to be given fell away. The Respondent cannot have it both ways. In the particular circumstances, the Respondent was not entitled to deduct seven and a half hours from the Claimant’s annual leave entitlement.

28      On Ms Parbat’s reckoning, the Claimant was owed 78.5 hours of annual leave, however Exhibit 1 indicates an entitlement of 78.655 hours.

29      The Claimant claims to be entitled to 80.89 hours of annual leave. That is based on what the FWO determined her entitlement to be. She has, however, not produced any evidence that would substantiate that figure. On the available evidence (Respondent’s payroll journal) I can go no farther than to find that she is owed 78.655 hours of annual leave entitlements. The Respondent has failed to comply with Clause 24 of the Award by failing to pay the Claimant those annual leave entitlements and annual leave loading thereon.

30      I find that the Claimant is entitled to annual leave entitlements, and 17.5% annual leave loading as follows:

• annual leave -  78.655 hours @ $17.39 = $1,367.81; and
• leave loading -  $1,367.81 x 0.175 = $239.37

The total amount payable with respect to the Claimant’s annual leave and leave loading is $1,607.18.

Conclusion

31      I find that the Claimant is owed $2,274.37 ($667.19 plus $1,607.18). I order that the Respondent pay her that amount.

32      In addition, I order, pursuant to section 547 of the Fair Work Act 2009, that the Respondent pay to the Claimant interest on that amount. The appropriate interest payable is 6% per annum calculated from 17 October 2013 until Judgement. The interest payable is at 0.374 cents per day. The total of interest payable is for 631 days totalling $235.99.

33      I order the Respondent to pay to the Claimant $ 2,510.36, which is inclusive of interest.

G. CICCHINI

INDUSTRIAL MAGISTRATE