100315472

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES KAREN JEAN BROADFOOT

CLAIMANT

 -v-

 ANDREW HA and TRAN HA

RESPONDENTS

CORAM G CICCHINI IM

DATE WEDNESDAY, 7 AUGUST 2002

FILE NO/S M 56 OF 2002

CITATION NO. 2003 WAIRC 07652

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Representation

Claimant The claimant appeared in person

Respondents Mr A Ha appeared in person and on behalf of the second named respondent

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Reasons for Decision

(Given extemporaneously at the conclusion of the hearing, extracted from the transcript of proceedings and edited by His Worship)

1         The matter before me is a claim by Karen Jean Broadfoot as against Andrew Ha and Tran Ha.  Together, Mr and Mrs Ha are the owners of a business at Wangara being the Paramount Lunch Bar and Cafe.  It is common ground that the Respondents employed the Claimant, Ms Broadfoot, and that her employment commenced in about early February 2001.  It is also common ground that the Claimant was paid during the course of her employment as a casual employee pursuant to the Restaurant, Tearooms and Catering Workers Award No R48 of 1978.

2         The Claimant worked for the Respondents for the period leading up to 18 January 2002, at which time she had a disagreement with Mr Ha’s wife and left the employment of the Respondents of her own accord.  It seems that she took some advice in relation to her employment situation and as a result of advice received she then made a claim for the payment of annual leave.  The Respondents rejected that claim on the basis that the Claimant was not a person to whom annual leave was payable in that she was a casual employee.

3         The issue in this case is one that is to be determined simply on whether or not the Claimant was a part-time employee or a casual employee.  Mr Ha says she was a casual employee, as evidenced by the pay rate that she received in respect of her payment for hours worked.  The Claimant says that although she was paid a casual rate, she in fact was a part-time employee as evidenced by the regular hours, the continuous employment and the rosters that she was required to work. 

4         Whether or not a person is a casual employee or a part-time employee is a matter to be determined by the Court.  Whatever the parties may consider their respective positions to be, the question is one that only this Court can determine.  There is ample authority to say that it matters not how the parties classify the position or, indeed, label the position.  The Court must look at the evidence objectively to determine what was the true nature of the employment contract between the parties.

5         In this case the evidence generally is not in dispute, although there is one major issue of dispute.  That major issue is whether or not at the time that the employment commenced or just prior to the employment commencing, that is at the time that the discussion took place in respect to the employment conditions, the Claimant was advised that she would be a casual employee.  On her evidence, the Claimant says that she was never told that she was a casual employee.  On Mr Ha ’s evidence, he says it was made clear to her, because of the rate of pay that she was to receive, that she was a casual employee.  So there is a dispute on the facts in relation to that matter.  But otherwise and generally, the evidence is not in dispute.

6         It is clear that the Claimant was engaged by the Respondents and commenced her employment in or about early February 2001.  That employment continued through to January 2002.

7         It is also clear from the documentary evidence before me, particularly exhibit 4, that she generally commenced her duties at 9.00am but sometimes earlier. Sometimes she commenced as early as 7.30am; sometimes she commenced at 8.00am and sometimes at 10.00am.  It seems from the documentary evidence before me that she always finished her work at 2.30 in the afternoon.

8         It is also apparent from the documentary evidence before me and indeed from the evidence given by both the Claimant and Mr Ha that she also worked every second Saturday.  The Claimant tells me that her pay for the Saturday work was received in cash and did not form part of the payment that she received otherwise for her duties.

9         She told me that she initially commenced working 5 days a week but, because of personal circumstances, that arrangement changed and she ultimately worked 4 days a week on a regular basis for the Respondents.  Indeed, the documentary evidence supports the fact that she worked for the Respondents on a regular basis, that is, she worked 4 days a week, and the evidence dictates that her hours of work generally were quite consistent, in or around the 22 or 23 hour mark, sometimes more, sometimes less, but generally speaking about that time was worked by the Claimant.

10     It is also the case that she worked in accordance with rosters that were prepared by the Respondents and, indeed, the rosters or some of them are before the Court in exhibit 4.

11     The Respondents’ position is that although the Claimant did work for them on a regular basis, the hours of work changed dramatically to suit the needs of the business and that although there were rosters in place, the rosters were changed to reflect the needs of the business.  The Respondents put to the Court that the hours of work of the Claimant were not as regular as the Claimant would lead the Court to believe.

12     The Respondents essentially oppose the Claimant's claim because they say that she was a casual employee.  She knew she was being paid a casual rate and she cannot have the benefit of being paid at a casual rate and now seek to claim holiday pay as well.  Had she wanted holiday pay, she should have been receiving the part-time rate which was significantly lower and she would have, in fact, been paid less for her employment during that particular point in time.  That is essentially what the defence is in relation to the matter.

13     I am called upon to determine what was the relationship between the parties and to determine the true nature of the employment agreement.  That is, whether it was a casual employment relationship or whether it was a part-time employment relationship.

14     In determining the matter, I go to the evidence of the Claimant firstly.  She has testified that she was aware that she was being paid at a casual rate.  There is no question about that at all.  However she maintains that she was not told she would be put on as a casual.  I accept her evidence in that regard.  The Respondents says that she knew that she was a casual because she was being paid at a casual rate.  There can be no doubt that the Claimant knew she was being paid at a casual rate but the fact that that occurred did not necessarily mean that she was told upon appointment or immediately prior that she was a casual employee.  I find, in fact, accepting the Claimant's evidence in preference to that of Mr Ha, that she was not told that she was a casual employee.

15     Leaving that aside, the Respondents’ position is that because the Claimant was paid at a higher hourly rate than a part-time employee, then the rate compensated for the lack of other entitlements and in those circumstances the rate at which she was paid was indicative of the fact that she was a casual employee.  However, the fact that the employer may have paid her at the higher casual rate does not of itself necessarily mean that the person is a casual employee.  Furthermore, the fact that she was paid at a higher rate does not offset an employee's right, under the relevant legislation.  In other words, the payment of a higher rate does not of itself diminish any liability the employer might have in the event that this Court finds that the Claimant was a part-time worker.

16     It is important, of course, that persons be classified correctly.  There are a number of indicators that go to the issue of whether a person is part-time or casual.  Generally speaking, casual employees are employed on an irregular basis with no set design or routine to their work and there is no particular expectation that there will be regular ongoing employment.  They are employed on an “as-needed” basis, often to meet the changing workloads within a business.  Often casual employees work on an irregular basis for example one particular day one week, two days the next week, four days the next, the whole of the next week and maybe no days at all the following week.  There is no pattern of work in that situation.  That is only an example, of course.  The fact that they are casuals is recognised from the beginning of their employment and it is usually indicative of the fact that they work for short periods on an irregular basis with their actual hours varying from week to week.  They are employed on that basis and they do not receive any other benefits.  They do not generally have consistent starting times or finish times or regular hours of work and they are generally contacted by their employer to ascertain whether they can work at a particular time or a particular day.  There is no semblance of regularity to it.  There is no particular expectation of work being made available.  The main factor is that casual employees are free to refuse work.  They can come and go as they please.  They are not committed to their employer.  They do not have to be there every particular day.  If they want not to work a particular day, they can say, "Look, I don't want to work that day" and the employer is bound by that.

17     A part-time employee, on the other hand, is in a different situation.  It is the part-time employee who is involved in regular and systematic work and normally it is fixed.  Such an employee may work a certain number of hours per week or per fortnight as the case may be.  There is a certain expectation on both sides in relation to the work.  The employee expects to work and the employer expects the employee to go to work for those particular hours.  Usually, with part-time situations, there is a regular set roster whereby the employee knows which particular days he or she is to go in to work and generally speaking there are set times as well.  There are a number of other factors that show whether a person is part-time; for example, that the job is ongoing work.  If the work is ongoing and regular then that is indicative of a part-time situation.

18     Now what was the case here in this particular case?  It is clear to me that the Claimant worked on a very regular basis, that is, she worked weekly.  Initially five days a week and then four days a week.  Her start time was generally 9.00am, although it is conceded and it is accepted that sometimes she started earlier, sometimes later, but generally she started at 9.00am.  Further, it is the case that she finished at 2.30pm every day that she worked.  That is all indicated by the rosters that I have before me in exhibit 4.  It is also clear that she had ongoing regular employment upon that basis and there was an expectation on her part to be working with the Respondents.  It is clear from the evidence that the Respondents had an expectation that the Claimant would attend work upon that basis.

19     The evidence before me overwhelmingly dictates that the Claimant in this particular case was working as a part-time employee.  Notwithstanding the fact that she was paid at a casual rate, it does not matter what the Respondents may have classified her as or what they paid her as, the reality is, because of the circumstances, that she was a part-time employee although classified by the Respondents to be a casual employee.  The Respondents had no greater obligation than to pay her the award rate for a part-time employee and strictly speaking they should have paid her less during the time of her employment there.  That is a matter for the Respondents.  There is nothing I can do about that.  The fact is, because they failed to properly categorise the employee as a part-time employee, they have effectively caused themselves to expend more in the payment of her hourly rate.  They have failed to recognise that the person was, in fact, a part-time employee because of the circumstances.

20     Given that the Claimant is a part-time employee and, as I said, the evidence overwhelmingly dictates that that is the case based on what I have before me, then she is entitled to annual leave.  Section 23(1) of the Minimum Conditions of Employment Act 1993 excludes casual employees from entitlement to annual leave, but others, such as full-time employees and part-time employees are entitled to annual leave or pro-rata annual leave.

21     It is clear that the Claimant ought to have been paid her pro-rata annual leave at the time of termination.  I appreciate that that did not occur for various reasons.  Firstly, she did not know she was entitled to the payment and secondly, because the Respondents did not think she was entitled to the payment.  It is simply a situation where she was ignorant of her rights and the Respondents, because of the view that they took that she was a casual employee, did not think she was entitled to the payment of holiday pay.  Clearly she was entitled to holiday pay.  The Claimant’s ignorance caused the delay in her making a claim for holiday pay.

22     The Claimant is entitled to be paid at the rate for her last week's pay, but she has not claimed upon that basis.  She has claimed at a lesser rate.  The rate for her last week's pay, according to the evidentiary materials that I have before me, was that comprised for having worked 25½ hours.  She could have claimed on that basis but did not do so. She has calculated her claim at an average of 23 hours.  In my view, the claim for 23 hours on an average of the hours that she ordinarily worked for the Respondents is probably fair notwithstanding that it is not strictly in accordance with the legislation.  The Claimant has claimed the 23 hours per week worked as being the basis upon which the calculation is made.  Therefore she claims to be entitled to 23 hours multiplied by 4 weeks, which equates to 92 hours.  The 92 hours is to be multiplied by the applicable hourly rate of $13.56 per hour.  That produces an amount of $1247.57 less the tax leaving a net sum of $991.52.  That is what she claims.

23     The position in relation to her claim is that she is entitled to annual leave for the period that she worked. Her entitlement is notionally greater than what she has claimed strictly speaking because she has limited herself to 23 hours where, in fact, she should have claimed a higher amount.  I note that she is just short of the 12-month period and strictly speaking she would not be entitled to 4 weeks.  But the calculation that she has made still brings her under the amount to which she is entitled in any event by virtue of a claim pursuant to the legislation for the 25½ hours that she worked during her final week.  Upon that basis I take the view that the amount that she has sought is appropriately claimed.

24     For the reasons that I have stated, I find that the claim made by the Claimant has merit.  In fact, she has proven on the balance of probabilities that she was a part-time employee.  She was not paid in accordance with the Minimum Conditions of Employment Act 1993 and she is entitled to annual leave.  The amount that she has claimed is within that to which she is entitled.  Accordingly, I find against the Respondents in relation to this matter.  There will be judgment for the Claimant as against the Respondents in the net amount of $991.52.

25     I propose in consequence of the reasons that I have given to make the following orders:

1. That the claim is proved; and
2. That there be judgment for the Claimant as against the Respondents in the sum of $991.52 net.

26     The amount stated in order 2 is comprised of the gross sum of $1247.57 less tax.

G Cicchini

Industrial Magistrate