WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2018 WAIRC 00834

DELIVERED : Thursday, 8 November 2018

FILE NO. : M 22 OF 2018

CLAIMANT

AND

New Accord Pty Ltd atft AMI Unit Trust t/a Global Maritime Data & Airtime Services

Respondent

Catch Words : Alleged contraventions of the Fair Work Act 2009 (Cth) – Failure to pay unpaid wages, annual leave, public holiday pay and personal leave – Status of ‘return of service’ clause in contract of employment – Unauthorised deductions contrary to s. 323 and s. 324 of the Fair Work Act 2009 (Cth) – Whether medical certificate issued constitutes satisfactory medical evidence under s. 107 of the Fair Work Act 2009 (Cth) – Alleged misconduct discovered after notice of termination

Legislation : Fair Work Act 2009 (Cth)
Fair Work Regulations 2009

Case(s) referred to

 in reasons : Anderson v Crown Melbourne Ltd [2008] FMCA 152

   Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Limited [2014] FCA 878

  Briginshaw v Briginshaw (1938) 60 CLR 336

  Construction, Forestry, Mining and Energy Union & ORs v RGN Mining Services Pty Ltd & Anor [2017] FCCA 1546

  Fair Work Ombudsman v Glasshouse Mountains Tavern Pty Ltd & Anor [2014] FCCA 1115

  Marshall v Commonwealth of Australia [2012] FMCA 1052

  Maslen v Core Drilling Service Pty Ltd & Anor [2013] FCCA 460

  Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908

  Tomvald v Toll Transport Pty Ltd [2017] FCA 1208

Result : Claim proven (in part)

Representation:

Claimant : Mr W Milward (of counsel)

Respondent : Mr V Tranchita (director)

REASONS FOR DECISION

1          Luke Smith was employed as a sales engineer by New Accord Pty Ltd ATFT AMI Unit Trust t/a Global Marine Date & Airtime Services (GMDAS) from 3 August 2015 to 29 December 2017.

2          Mr Smith signed a contract of employment on 28 May 2015 (contract of employment).

3          GMDAS is a division of the broader AMI Group which sells satellite communication equipment and undertakes after sales maintenance support of products sold by GMDAS.

4          Mr Smith claims GMDAS contravened: (1) s. 323 of the Fair Work Act 2009 (Cth) (FWA) by deducting without authorisation $7,675.85 from Mr Smith’s final payment processed on 29 December 2017; and (2) s. 44(1) of the FWA by failing to pay Mr Smith $3,605.77 in personal leave from 11 December 2017 to 22 December 2017 and 27 December 2017 and 29 December 2017 as required by s. 99 of the FWA.

5          GMDAS denies Mr Smith’s claim saying that all payments due to him were calculated in accordance with the employment contract and that Mr Smith is liable to pay $3,958.00 to GMDAS. Further, GMDAS says Mr Smith engaged in gross misconduct discovered after Mr Smith’s resignation precluding GMDAS from terminating him without notice and he failed to disclose a pre-existing medical condition which effected his ability to carry out his role while he was employed by GMDAS.

6          On the originating claim form Mr Smith referred to s. 550 of the FWA. Accessorial liability was not particularised in any further way in the statement of claim. Mr Smith’s counsel sought to amend the statement of claim on the day of the hearing explaining that it was a very recent oversight. I denied this amendment on the basis that notwithstanding reference was made to s. 550 of the FWA on the claim form, to allow Mr Smith to amend the statement of claim involved a substantial injustice to the other party where the claim was lodged in February 2018 and a directions hearing occurred on 16 August 2018. There was ample opportunity for Mr Smith to either fully particularise his claim or make an application to do so prior to the hearing. The directions hearing on 16 August 2018 was certainly an opportune time for his counsel to clarify Mr Smith’s claim if necessary, thus giving GMDAS an opportunity to respond to a claim for accessorial liability.

7          Section 551 of the FWA provides that a court must apply the rules of evidence and procedure for civil matters where hearing proceedings relating to a contravention or proposed contravention of a civil remedy provision. The onus of proving an allegation is upon Mr Smith and an allegation is not proved unless it has been proved on the balance of probabilities. An allegation of a contravention of a civil remedy provision is an allegation of ‘quasi-criminal’ conduct and regard must be had to the nature of the allegation when considering whether it has been proved on the balance of probabilities: Briginshaw v Briginshaw (1938) 60 CLR 336 at 662; Tomvald v Toll Transport Pty Ltd [2017] FCA 1208 [14].

Background facts

8          Save as otherwise indicated, the following background facts are not in dispute or is uncontroverted from evidence tendered by the parties.

9          The respondent is an Australian proprietary company limited by shares registered pursuant to the Corporations Act 2001 (Cth) that sells and maintains marine communication electronics and employs employees, including previously Mr Smith, for this purpose. Accordingly, the respondent is a constitution corporation within the meaning of that term in s. 12 of the FWA.

10       Mr Smith was employed by the respondent. Accordingly, the respondent is a national system employer within the meaning of that term in s. 14(1)(a) of the FWA. Further and as a result, Mr Smith is a national system employee within the meaning of that term in s. 13 and s. 15 and items one and 10 of s. 539(2) of the FWA.

11       As a result, s. 61(2) of the FWA applies to Mr Smith, namely the minimum standards of employment which cannot be displaced.

12       As part of his role with GMDAS Mr Smith was responsible for securing sales and for undertaking after sales maintenance support of product sold by GMDAS. GMDAS is a representative of NSSL Global, a United Kingdom (UK) based company whose products are sold principally by GMDAS. NSSL Global required all technicians working on NSSL Global products to have completed NSSL Global training.

13       During the interview for the position, Mr Smith accepts that NSSL Global training was discussed and he knew this was a requirement for the position. He undertook the training in the UK from approximately 6 September 2015 to 18 September 2015 (NSSL training).

14       In March 2017, Mr Smith undertook a seven-day training course held at the AMI Group offices in Perth for Kelvin Hughes navigational equipment. This course was run internally by an AMI sales service engineer (Kelvin Hughes training).

15       The purpose of the Kelvin Hughes training was to increase Mr Smith’s work capacity for AMI Sales by increasing the number of technicians available in the navigational communication area and to increase GMDAS revenue streams1.

16       Relevant to Mr Smith’s claim the contract of employment contained a ‘return of service’ clause:

xvi.  Training and Return of Service Provision – the company from time to time will provide training for Products or for Certification required to undertake your duties. The cost of the training will be paid for by the company and at no cost to the employee. In consideration of this training the employee hereby undertakes to either refund the training costs or to undertake to continue working with the company for a guaranteed minimum return of service period from the completion of the training. The guaranteed minimum return of service period will be based on the training costs and shall be as per below schedule.

17       The schedule referred to in the contract of employment provides that if course costs are: (1) less than $1,000, the guaranteed minimum return of service period is 12 months; (2) greater than $1,000, the guaranteed minimum return of service period is 24 months; and (3) greater than $5,000, the guaranteed minimum return of service period is 36 months.

18       Mr Smith accepts that at the time of signing the contract of employment he understood its terms, including the minimum return of service period, and agreed to the terms.

19       Mr Smith was previously employed by AMI Sales, another business within the AMI Group, from May 2006 to June 2008. During this time, he attended two courses and, on each occasion, signed a return of service document setting out the costs of the course and the amount he was required to repay2.

20       He did not sign a similar document prior to undertaking the NSSL training or the Kelvin Hughes training.

21       On 27 October 2017, Behram Irani, the General Manager for GMDAS and Mr Smith’s supervisor, and Mr Smith had an email exchange about undertaking a training course in America for O3b Networks (O3b training). At the time of the email the cost of attending the O3b training was estimated at US$9,000, but final figures could not be provided as the negotiations for the training had not been finalised3.

22       Mr Smith in response to Mr Irani’s email, and contrary to his more strident oral evidence and at most, queried the cost and requested a breakdown of the costs, but indicated a willingness to discuss a return of service agreement in more detail. I note, consistent with GMDAS oral submissions, Vince Tranchita, Managing Director of AMI Group, responded to the email chain saying ‘[t]he RSA is already part of the employment agreement. No new agreement required’4.

23       On 23 November 2017, Mr Smith submitted an annual leave form for eight days leave over the Christmas period. The reasons why or how this came about are irrelevant to the claim, but Mr Irani agreed to the leave being taken.

24       On 22 November 2017, Mr Smith received his usual fortnightly salary for the ending on 24 November 2017.

25       On 29 November 2017, Mr Smith emailed a letter of resignation to Mr Irani giving 30 days’ notice for his resignation.

26       Suffice to say the relationship between Mr Smith and GMDAS thereafter deteriorated.

27       The gravamen of the dispute, as evidenced in a series of emails, was Mr Tranchita informing Mr Smith that he owed money to GMDAS for the failure to complete the return of service for, at least, the NSSL training, Mr Tranchita cancelling Mr Smith’s approved annual leave and the withholding of Mr Smith’s salary on 6 December and 20 December 2017 in lieu of an exact calculation for training costs.

28       On 11 December 2017, Mr Smith attended his general practitioner and obtained a medical certificate stating that he was unfit for work from 11 December 2017 to 29 December 20175. On the same day Mr Smith submitted a sick leave form and had a discussion with Mr Irani. The content of the discussion is in part disputed, but, again, little turns on it because it is common ground Mr Irani did not sign the sick leave form and it was submitted to Maureen Barnaville, or at least placed in her in-tray by Mr Smith, for processing.

29       I accept Mr Irani’s evidence that on 11 December 2017 he did not appreciate Mr Smith had applied for 13 days sick leave. Mr Irani impressed me as an honest witness who harboured no ill will towards Mr Smith and by his own admission was an easy-going supervisor who was prepared to accept a person’s word. In addition, Mr Irani had returned from leave and wanted to organise a handover prior to Mr Smith’s leaving.

30       Between 11 December and 18 December 2017, there was an email exchange between Mr Tranchita and Mr Smith concerning the veracity of Mr Smith’s application for sick leave. It is common ground that Mr Smith did not attend a ‘company doctor’ or an ‘independent doctor’ so GMDAS could obtain a second opinion about the time off work and no such arrangement was made by GMDAS.

31       On or around 11 December 2017, Mr Smith’s company network access had been terminated. However, by this time Mr Smith had already accessed other employees’ email accounts, including Mr Irani’s email account, and using these email accounts forwarded emails to a private email account in his name6. This included, arguably, confidential reports prepared by Mr Irani to AMI Group directors7.

32       On 3 January 2018, Mr Smith received an email from Mr Tranchita and from GMDAS payroll attaching a payslip showing Mr Smith’s entitlements according to GMDAS8. In summary, according to the GMDAS payroll Mr Smith was owed $5,095.85 (inclusive of annual leave entitlement, public holiday and normal hours of work, minus taxation). GMDAS says it was owed $9,053.89 by Mr Smith for training expenses with the net result being Mr Smith owed GMDAS $3,958.04.

33       For the most part, Mr Smith’s claim and GMDAS’s response hinges on the applicability of return of services clause in the contract of employment.

Does the return of services clause in the contract of employment authorise deductions under the FWA?

34       Section 323(1)(a) of the FWA requires an employer to pay in full an employee amounts payable to the employee in relation to the performance of work, except for permitted deductions in s. 324 of the FWA.

35       Pursuant to s. 324(1) of the FWA an employer may deduct an amount from an amount payable to an employee in accordance with s. 323(1) if:

(a)     the deduction is authorised in writing by the employee and is principally for the employee’s benefit; or

(b)     the deduction is authorised by the employee in accordance with an enterprise agreement; or

(c)     the deduction is authorised by or under a modern award or an Fair Word Commission order; or

(d)     the deduction is authorised by or under a law of the commonwealth, a state or a territory, or an order of a court.

36       It is common ground that (b) to (d) does not apply in this case. Therefore, applicable to Mr Smith the deduction must be authorised in writing by him and be principally for his benefit.

37       But, an authorisation for the purposes of (a) must also specify the amount of the deduction and may be withdrawn in writing by the employee at any time: s. 324(2) of the FWA. Further, any variation in the amount of the deduction must be authorised in writing by the employee: s. 324(3) of the FWA.

38       Section 325(1) of the FWA provides that an employer must not directly or indirectly require an employee to spend, or pay to the employer or another person, an amount of the employee’s money or the whole or any part of an amount payable to the employee in relation to the performance of work, if the requirement is unreasonable in the circumstances and where the payment is directly or indirectly for the benefit of the employer or a party related to the employer. Section 325(1A) applies similarly in relation to prospective employment.

39       Section 326(1) of the FWA (relevantly) provides that a contract of employment has no effect to the extent that the term permits, or has the effect of permitting, an employer to deduct an amount from an amount that is payable to an employee in relation to the performance of work, if the deduction is directly or indirectly for the benefit of the employer or a party related to the employer and is unreasonable in the circumstances. The regulations may prescribe circumstances in which a deduction is not reasonable (I note regulation 2.12 of the Fair Work Regulations 2009 and note that this does not apply to Mr Smith’s circumstances).

40       Similar provisions in s. 326(2) of the FWA apply in relation to a contract of employment where a term permits or has the effect of permitting an employer to require an employee to spend or pay to the employer an amount of the employee’s money or directly or indirectly requires an employee to spend or pay an amount if there is a contravention of s. 325(1).

41       GMDAS relies on the return of service clause in the contract of employment to deduct monies from Mr Smith’s final pay stating that Mr Smith was always aware and agreed to the term prior to signing the contract of employment. Further, Mr Smith has been employed by another Respondent company in the past and was fully aware of the contractual requirement to repay the costs of training if he did not complete the requisite employment period post training.

42       GMDAS contends that in the communications industry employers and employees are contractually bound to maintain professional development and it is financially unfeasible for small companies to train employees and an employee thereafter take the knowledge to another company without giving something in return.

43       Further, GMDAS contends that Mr Smith received the benefit of the training and it was his choice to leave GMDAS even though he was encouraged to stay with the company for an additional nine to ten months so the ‘debt’ did not crystallise. There was no requirement for Mr Smith to pay back the training costs unless he decided to leave prematurely, which he did.

44       It is common ground that Mr Smith did not sign an individual agreement for deductions for each training course undertaken, but GMDAS rely upon the authority under the contract of employment to do so.

45       The claimant refers to two cases which he says discuss general authority clauses, namely Maslen v Core Drilling Service Pty Ltd & Anor [2013] FCCA 460 and Fair Work Ombudsman v Glasshouse Mountains Tavern Pty Ltd & Anor [2014] FCCA 1115.

46       I do not agree that Maslen comments on general authority clauses but referred to specific clauses in an award and contract of employment and made determinations in relation to the applicability of s. 326 of the FWA.

47       Glasshouse Mountains discussed the application of s. 324 of the FWA to a term of an employment contract requiring the employee to pay for certain qualifications or licence fees where the employer paid for the licence fees and then sought to deduct the monies from the employee pursuant to another term authorising the employer to deduct monies owing to them from their pay.

48       Judge Burnett noted at [119] to [121] that while there was nothing in principle contentious about the term of the contract, s. 324 of the FWA was directive insofar as it provides that an authorisation for deduction must (a) specify the amount of the deduction. Therefore, there can be no blanket authorisation but only an authorisation in writing that specifies the amount of the deduction. In Glasshouse Mountains there was a deduction of a certain amount, but it was not specified in the written authority constituted by the employment contract. No other written authority was put to the Court to satisfy the requirements of s. 324 of the FWA. Accordingly, in that case the deduction was unauthorised, and the contravention was established for want of form.

49       Like Glasshouse Mountains, GMDAS did not produce, because it could not produce, any written authorisation by the employee specifying the amount of the deduction for the cost of any training course he attended (namely, NSSL training and Hughes training). At best an email was sent to Mr Smith or to the GMDAS payroll with either an estimate of the training costs or the final costs and associated invoices9. This is further corroborated by an email from Mr Tranchita dated 4 December 2017 where he states ‘[a]s for training costs you have already been advised of the estimated amount and Maureen shall advise you of the actuals ASAP’10.

50       This contrasts with previous written authorities for deductions signed by Mr Smith in 2007 when he was employed by an associated AMI company11.

51       Accordingly, for the same reason as given in Glasshouse Mountains, in the absence of a written authority by Mr Smith authorising a deduction for a specified amount, GMDAS has contravened s. 324(2)(a) of the FWA as it relates to s. 324(1)(a) and the deductions from Mr Smith’s pay of the NSSL and Hughes training costs were unauthorised. The contravention being for want of form which cannot be cured by relying on the return of services clause in the contract of employment.

52       Given the absence of the essential requirement of form it is unnecessary to make any findings in relation to whether the training was principally for Mr Smith’s benefit. However, by way of general observation, having regard to the evidence, at best the training benefited both parties for different reasons, the likely result being the training was not principally (meaning predominantly) for Mr Smith’s benefit.

53       Having determined the return of services clause in the contract of employment did not authorise under the FWA the deduction of training costs, the next issue is whether Mr Smith is entitled to various payments and, if so, what is he entitled to?

What, if any, entitlements are Mr Smith owed?

Mr Smith’s contentions

54       Pursuant to s. 323 of the FWA, Mr Smith claims:

• $3,028.85 in unpaid wages for the period 27 November 2017 to 11 December 2017;
• $4,070.08 in annual leave; and
• $576.92 for public holidays on 25 December and 26 December 2017.

55       Pursuant to s. 44(1) and s. 99 of the FWA, Mr Smith claims:

• $3,605.77 in personal leave for the period 11 December to 22 December 2017 and 27 December to 29 December 2017.

56       Section 323(1)(a) of the FWA requires an employer to amounts payable in full to an employee in relation to the performance of work.

57       Section 545(3) of the FWA enables an eligible state court (of which the Industrial Magistrates Court (IMC) is an eligible state court) to order an employer to pay an amount to, or on behalf of, an employee of the employer if the court is satisfied that: (a) the employer was required to pay the amount under this Act or a fair work instrument; and (b) the employer has contravened a civil remedy provision by failing to pay the amount.

58       Therefore, there are three preconditions to an order by the IMC under s. 545(3): (1) an amount payable by the employer to the employee; (2) a requirement to pay the amount by reference to an obligation under the FWA or a fair work instrument; and (3) the failure to pay constitutes a civil remedy provision under s. 539(1) and s. 539(2) of the FWA.

59       Section 44(1) of the FWA provides that an employer must not contravene a provision of the National Employment Standards. Chapter 2, Part 2.2, Division 2 of the FWA refers to the national employment standards and s. 61(1) provides that Part 2.2 sets the minimum standards that apply to the employment of employees which cannot be displaced.

60       Section 61(2) of the FWA itemises the minimum standards on several matters. Relevant to Mr Smith’s claim this includes annual leave (d), personal/carer’s leave (e) and public holidays (h). Section 61(2) does not itemise normal payment of wages.

61       A contravention of s. 44 is a civil remedy provision which may be determined by the IMC: s. 539(2) of the FWA.

62       In terms of the failure to pay normal payment of wages, Mr Smith’s primary contention is that s. 323 of the FWA establishes the contravention of a civil remedy provision and provides the foundation or the statutory basis under the FWA for GMDAS to pay the contracted amount in full. Mr Smith further contends that s. 323 of the Act should not be read to limit the payment in full to only those amounts payable under the Act.

63       In Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Limited [2014] FCA 878, Buchanan J, at [37], determined that the ordinary language of s. 323 was sufficiently wide to enable an application that there have been breaches of s. 323 through a failure to pay contractually obligated amounts (referring also to Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908). This decision and the decision in Murrihy were followed in Construction, Forestry, Mining and Energy Union & ORs v RGN Mining Services Pty Ltd & Anor [2017] FCCA 1546.

64       Notably these three cases were determined in the Federal Court or the Federal Circuit Court where the orders made are broader than in the IMC: s. 545(1) and s. 545(2) of the FWA. In addition, in those cases the claimants sought recovery of the unpaid amounts as compensation for loss suffered because of a contravention of a civil remedy provision pursuant to s. 545 of the FWA. In Association of Professional Engineers, the underpayment of bonus and incentive-based payments were considered ‘safety net contractual entitlements’ of a kind referred to in s. 139(1) of the FWA.

65       Giving proper regard to those decisions, a failure to pay a contractual entitlement is capable of contravening s. 323 of the FWA and such a contravention if capable of an application to the IMC as a contravention of a civil remedy provision.

66       While s. 323 of the FWA reinforces a legal obligation to pay an amount in full for performance of work for which there are additional consequences on the employers if they do not pay employees in full, I do not accept that it provides the remedy or creates an underlying legal obligation to pay for which the employer is responsible. The words required to pay the amount ‘under this Act’ in s. 545(3) of the FWA must have work to do or meaning in the context of the amount required to be paid by the employer. These words in effect qualify what amount the employer is required to pay.

67       Therefore, in my view, Mr Smith’s claim for normal payment of wages under his contract of employment needs to be referrable to another section of, or obligation under, the FWA over and above the legal obligation to pay in full in s. 323 for any amount sought to be paid by GMDAS.

68       The IMC is not empowered under s. 545(3) of the Act to make an order for compensation and the failure to pay normal wages is not an amount required to be paid by GMDAS under the FWA or fair work instrument, but under a contract of employment only. The normal payment of wages is not a ‘safety net contractual entitlement’ as specified by the subject matter in s. 61(2) of the FWA and it is also not a minimum standard itemised in the same section.

69       While s. 323 of the FWA opens the door to a claim under the FWA capable of being heard by the IMC it does not, of itself, empower the IMC to make the order sought by Mr Smith in relation to the failure to pay normal wages.

70       Contrast this with the Federal Court and the Federal Circuit Court which are empowered to make an order for compensation which arguably arises from a breach of contractual entitlement.

71       Of course, it is open for Mr Smith to commence a breach of contract claim for payment of normal wages in the Federal Court or Federal Circuit Court or a state court (not the IMC) thus he is not locked out from bringing a claim in a jurisdiction which can make the order sought.

72       In the alternative, Mr Smith contends that pursuant to s. 293 of the FWA an employer must not contravene a term of a national minimum wage order.

73       A contravention of s. 293 of the FWA is a civil remedy provision capable of application to the IMC: s. 539(2) of the FWA.

74       Therefore, in the alternative, Mr Smith says that if he is not entitled to the full payment of normal wages owed under the contract of employment, he is at the very least entitled to the payment of the national minimum wage under the FWA for the period 27 November 2017 to 11 December 2017.

75       The applicable National Minimum Wage Order 2017 prescribing the national minimum wage for an award/agreement free employee for the period 1 July 2017 to 30 June 2018 was $694.90 per week.

76       I accept Mr Smith’s alternative contention as it relates to the non-payment of normal wages in the sense that it is an order capable of being made by the IMC under s. 545(3) of the FWA.

GMDAS’s contentions

77       GMDAS’s primary contention was Mr Smith was not owed any outstanding entitlements because he owed GMDAS for training costs associated with the return of service clause in the contract of employment.

78       For reasons already given, I found the deductions from Mr Smith’s final payment were unauthorised.

79       GMDAS’s alternative contentions are that Mr Smith engaged in ‘serious misconduct’, discovered after he submitted his notice of resignation, when he accessed other employees’ email accounts to send company emails to his private email address. Had this ‘serious misconduct’ been discovered earlier then Mr Smith’s employment would have been terminated immediately. Further, Mr Smith’s reason for taking personal leave was not bona fide and the medical certificate failed to demonstrate sufficient reasons for taking personal leave.

80       Mr Smith admitted accessing other employees’ email account to forward company emails to his private email address. He did so after he submitted his notice of resignation and without permission from any person in GMDAS. There is no doubt this conduct is reprehensible and maybe unlawful, and it is entirely understandable that GMDAS and its directors feel aggrieved.

81       However, to the extent that it is relevant to Mr Smith’s claim, s. 123(1)(b) of the FWA provides that Division 11 (Notice of Termination and Redundancy) does not apply to an employee whose employment is terminated for ‘serious misconduct’. Therefore, if Mr Smith’s conduct in accessing other employees’ email accounts was characterised as ‘serious misconduct’, GMDAS could have terminated Mr Smith without notice or payment in lieu of notice. This does not abrogate GMDAS’ obligation to pay those entitlements that have already accrued. Further, and relevantly, Mr Smith had already submitted his notice of resignation and his employment was not terminated by GMDAS.

82       Section 107 of the FWA provides that an employee must give his or her employer notice of taking personal/carer’s leave. The notice must be given to the employer as soon as practicable and must advise the employer of the period, or expected period, of leave.

83       Section 107(3) of the FWA provides that an employee who had given his or her employer notice of the taking of personal/carer’s leave must, if required by the employer, give the employer evidence that would satisfy a reasonable person that if it is paid personal/carer’s leave, the leave is taken for a reason specified in s. 97 of the FWA. Relevantly, s. 97(a) of the FWA provides that an employee may take paid personal/carer’s leave if the leave is taken because the employee is not fit for work because of a personal illness.

84       On 11 December 2017, Mr Smith provided a medical certificate dated 11 December 2017 signed by Dr Trevor Claridge. The content of the medical certificate is sparse stating ‘Mr Luke Smith has a medical condition and will be unfit for work from 11/12/2017 to 29/12/2017 inclusive’. On the same day Mr Smith also submitted a sick leave form and the form and medical certificate was left with Ms Barnaville or placed in her in-tray.

85       Coincidentally the period specified in the medical certificate covers, at least in part, the period previously the subject of approved annual leave which was revoked by Mr Tranchita on 4 December 201712 after Mr Smith resigned. As previously stated there was much email disagreement between Mr Smith and Mr Tranchita concerning the revocation of the approved annual leave.

86       Like in Glasshouse Mountains, GMDAS says, in effect, that a reasonable person would not be satisfied on the evidence of the medical certificate because Mr Smith’s annual leave application had been revoked following his notice of resignation and the period covered by the medical certificate coincided with the last two and a half weeks of his employment (some of which was originally part of the application for annual leave).

87       While not expressly stated, I infer from Mr Tranchita’s submissions, GMDAS contends that in the circumstances the medical certificate (of itself) was not sufficient to satisfy a reasonable person that the personal leave was for the reasons specified in s. 97 of the FWA. That is, the medical certificate did not provide enough information to satisfy a reasonable person against the background of other facts, namely Mr Smith’s annual leave had been revoked after he submitted his notice of termination and the disagreement over the payment/repayment of training expenses.

88       In his oral evidence, Mr Smith denied having a pre-existing medical condition which he failed to disclose prior to accepting employment with GMDAS. He stated he first saw a general practitioner in June 2016 and was placed on a mental health plan. In terms of his attendance upon Dr Claridge on 11 December 2017, Mr Smith stated this was in relation to work related stress and the medical certificate was given for a stress related condition. He denied refusing to attend ‘a company doctor’ for a second opinion, saying that no arrangements were made for him to attend any other medical practitioner. Further, Mr Smith said he gave permission for GMDAS to discuss his case with Dr Claridge if elaboration of his condition was required.

89       A medical certificate from a qualified medical practitioner within the practitioner’s area of expertise is prima facie to be accepted: Anderson v Crown Melbourne Ltd [2008] FMCA 152 [80] (referred to in Marshall v Commonwealth of Australia [2012] FMCA 1052).

90       This is not to say that a court or an employer is necessarily bound to treat a medical certificate as binding upon them where the facts and surrounding circumstances demonstrate an employer, or a court would not accept the validity of a medical certificate.

91       It is important to note that in Anderson, the claimant attended a medical practitioner and obtained a medical certificate to attend an AFL game in Western Australia because he was emotionally invested in the last game played by James Hird and coached by Kevin Sheedy. The facts of that case were highly unusual. In Marshall, the employer challenged the claimant’s claim that he was unfit for work, having regard to the claimant’s medical evidence and to declarations he made to be considered for a television game show. In both cases, the claimants’ medical practitioners gave evidence at the hearings.

92       Dr Claridge did not give oral evidence about the reasons for issuing the medical certificate (because no party, specifically GMDAS, summonsed him to do so). Thus, the question is whether other surrounding facts and circumstances could lead to a conclusion that the medical certificate should not being accepted?

93       There was work place tension between Mr Smith and Mr Tranchita, mainly concerning the repayment of training monies and revocation of annual leave. The emails between the two men demonstrate this. Further, Mr Smith stated in his oral evidence he had previously attended a general practitioner from June 2016 for stress related matters. There is no other evidence rebutting this statement.

94       While some scepticism might be expressed regarding the timing of Mr Smith’s attendance at his general practitioner, where the dates in the medical certificate coincided with revoked annual leave, the facts and surrounding circumstances were not such that they would displace the validity of the medical certificate.

95       The period of unfitness for work was lengthy, however Mr Smith accepted GMDAS’s request to refer him to the company’s doctor for review or to contact Dr Claridge for clarification of the medical condition. GMDAS did not make any arrangements to refer Mr Smith for an independent assessment. Dr Claridge or the medical notes were not summonsed and to that extent the prima facie status of the medical certificate is unchallenged.

96       Therefore, the medical certificate from Dr Claridge should be accepted and is sufficient to satisfy the reasonable person that the leave was taken because Mr Smith was not fit for work because of a personal illness.

Determination

Unpaid wages for the period 27 November 2017 to 11 December 2017

97       Pursuant to s. 293 of the FWA, an employer must not contravene a national minimum wage order.

98       I find that GMDAS failed to pay Mr Smith the national minimum wage pursuant to National Minimum Wage Order 2017 for the period 27 November 2017 to 11 December 2017 contrary to s. 293 of the FWA which is a civil remedy provision under s. 539(2) of the FWA.

99       Accordingly, I find GMDAS is required to pay the amount of $1,389.80 for unpaid normal hours of pay (under the national minimal wage).

Annual leave

100    Section 90(2) of the FWA provides that if, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employee must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave (payable at the employee’s base rate of pay for the ordinary hours worked).

101    I find that GMDAS failed to pay Mr Smith untaken paid annual leave entitlements when Mr Smith’s employment ended contrary to s. 90(2) of the FWA which is contrary to s. 44(1) of the FWA because of s. 61(2)(d) of the FWA and a civil remedy provision under s. 539(2) of the FWA.

102    Accordingly, I find GMDAS is required to pay the amount of $4,070.08 for untaken paid annual leave.

Public holiday pay for 25 and 26 December 2017

103    Section 115(1) of the FWA defines public holidays for certain days of the year, including 25 December and 26 December 2017, being Christmas Day and Boxing Day.

104    Pursuant to s. 116 of the FWA if an employee is absent from his or her employment on a day or part-day that is a public holiday, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work on the day or part-day.

105    I find that GMDAS failed to pay Mr Smith for public holidays on 25 December and 26 December 2017 at the requisite rate of pay contrary to s. 116 of the FWA which is contrary to s. 44(1) of the FWA because of s. 61(2)(h) of the FWA and a civil remedy provision under s. 539(2) of the FWA.

106    Accordingly, I find GMDAS is required to pay the amount of $576.92 for unpaid public holidays on 25 and 26 December 2017.

Personal Leave

107    Pursuant to s. 96(1) of the FWA for each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer’s leave.

108    Relevant to Mr Smith’s claim, pursuant to s. 97(a) of the FWA, an employee may take paid personal/carer’s leave if the leave is taken because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee. Pursuant to s. 99, if an employee takes a period of paid personal/carer’s 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.

109    As already discussed, s. 107 of the FWA refers to the notice and evidence requirements related to personal/carer’s leave.

110    I find that GMDAS failed to pay Mr Smith for personal leave for the period 11 December to 22 December 2017 and 27 December to 29 December 2017 at the requisite rate of pay contrary to s. 99 of the FWA which is contrary to s. 44(1) of the FWA because of s. 61(2)(e) of the FWA and a civil remedy provision under s. 539(2) of the FWA.

111    Accordingly, I find GMDAS is required to pay the amount of $3,605.77 for unpaid personal leave.

Result

112    Pursuant to s. 545(3) of the FWA, the court being satisfied to the requisite standard that GMDAS is required to pay the amount under the FWA and GMDAS has contravened a civil remedy provision in failing to pay the amount, it is ordered that GMDAS pay to Mr Smith $9,642.57 being:

1. $1,389.80 for normal hours of pay
2. $4,070.08 for untaken paid annual leave
3. $576.92 for public holidays
4. $3,605.77 for personal leave

113    I will hear from the parties in respect of any further application or order sought.

INDUSTRIAL MAGISTRATE

D. SCADDAN

1 Witness Statement of Luke Smith at annexures C and D (exhibit 1)

2 Witness Statement of Luke Smith at annexure B (exhibit 1)

3 Exhibit 1 at annexure F

4 Exhibit 1 - annexure F

5 Exhibit 1 – annexure M

6 Exhibit 3 – documents 46 to 56

7 Exhibit 3 – document 52

8 Exhibit 1 – annexure O

9 Exhibit 2 – documents 30 to 32

10 Exhibit 2 – document 57

11 Exhibit 2 – document 2

12 Exhibit 1 – annexure I