100422712

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES DOLLY HOLZINGER

CLAIMANT

 -v-

 MIDLAND INFORMATION, DEBT AND LEGAL ADVICE SERVICE INC

RESPONDENT

CORAM MAGISTRATE G CICCHINI IM

DATE WEDNESDAY, 28 APRIL 2004

CLAIM NO M 151 OF 2003

CITATION NO. 2004 WAIRC 11392

_______________________________________________________________________________ 

Representation

Claimant The Claimant appeared in person.

Respondent Ms J Auerbach (of Counsel) of The Chamber of Commerce and Industry of Western Australia.

_______________________________________________________________________________

Reasons for Decision

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

1         The Respondent employed the Claimant on 29 July 1999.  She was employed as a Welfare Rights Worker on a part-time basis working 36 hours per fortnight.  On 13 September 1999 she was appointed to the position of Financial Consultant Level 4.3 under the Social and Community Services Award - Western Australia Award 2002 (the Award), initially working 40 hours per fortnight.  On 4 June 2001 she was promoted to Level 4.4, working 60 hours per fortnight.  It is not in contention between the parties that the Award to which I have referred is the Award that applies to both parties.  Indeed, pursuant to that Award, in July of 2001 the Claimant's position was reclassified to the level of 5.1.

2         The Claimant alleges that for the period commencing the pay period ending 3 October 2001 and concluding in the pay period ending 16 July 2002 she worked 322.30 extra hours which was recorded as TOIL; that is, time off in lieu.  She accordingly claims payment of the same, which remains unpaid.  It remains unpaid because she has subsequently resigned from her employment with the Respondent and was not, at the time of termination, paid for the TOIL that was owed to her.

3         The Time off in lieu of overtime provision found in clause 22.4 of the Award (the Overtime clause), provides as follows:

22.4.1.    Subject to other provisions of this clause, by mutual agreement, time off may be granted in lieu of payment.  Employees in an establishment may generally agree that time off in lieu of overtime will apply.

22.4.1(a)   In such case any one employee may withdraw their agreement by advising the employer prior to undertaking the overtime required.

22.4.2    Time off in lieu of overtime will be calculated on a time for time basis.

22.4.3    An employee may accumulate time off in lieu to be taken at times agreed between the employer and the employee.

24.4.4    By mutual agreement, where an employee has accumulated time in lieu in accordance with clause 22.4.1, the employee may take the time off in conjunction with annual leave.  Such time off in lieu will not attract annual leave loading.

4         There can be no doubt that the Claimant has proceeded throughout, as is reflected in her pleadings, that any overtime worked would not be paid at overtime rates, but rather would be taken as TOIL.  Indeed, the Claimant's own evidence indicates that that is one of the reasons as to why she recorded the extra hours worked.  In fact she continued to record the extra hours worked until TOIL was eventually abolished in August of 2002.  The Claimant says that she has worked a total of 322.30 hours overtime, which has not been converted to TOIL and for which she has not yet been paid.  Accordingly, for that reason, she seeks the payment of $6381.54 representing the value of her TOIL entitlement.

5         The question is one of whether it could be said, on the best possible case scenario for the Claimant, in accepting her evidence that she worked the hours claimed and that at the time that she did so she had approval from the employer to work those hours, she is entitled to the amount sought.  In my view the answer is clearly no.  I say that because the Award makes no provision for the payment on termination of accrued time off in lieu (TOIL).  Once the agreement is reached for the taking of TOIL the employee’s entitlement becomes one only of taking time off.  That is, the employee is not entitled to payment but rather to time off.  In fact, clause 22.4.1 of the Award says exactly that “… time off may be granted in lieu of payment”.  Accordingly the employer in the circumstances is not required to make payment for overtime worked.  Any reversion to payment for overtime requires, pursuant to clause 22.4.1(a) of the Award, notice to the employer prior to that overtime being worked.  That is so that the employer is put on notice that payment will be required, whereas payment would not otherwise be required in a TOIL situation.  In this matter it is not suggested by the Claimant that she had put the employer on notice that she was seeking to be paid for overtime worked.

6         Having said that I acknowledge that in the past the Respondent has, upon termination of its employees' employment, paid such employees the value of their untaken TOIL.  The evidence of Miss Wolfgramm and Mr Paez establishes that.  However, notwithstanding that, it seems that the Respondent was not under any legal obligation to do so.  Such payments, it seems, were made because of a sense of good will and in the moral acceptance that employees in such situations ought to be paid.  However the Respondent's past practices do not bind it with respect to the Claimant. 

7         The question is purely a legal one as to whether, on a proper construction of the Award, it can be said that the Respondent employer is liable to the Claimant for the payment of untaken TOIL.  In that regard, the Award simply says nothing about that.  There is no provision in the Award that would require the Respondent to pay to the Claimant upon termination the value of untaken TOIL.  It is as simple as that.  On that basis alone the Claimant cannot succeed.

8         Even if that were not the case the Claimant suffers for other reasons in any event.  I say that because clause 22.4 of the Award is subject to the other provisions of clause 22 of the Award and specifically clause 22.1 – “Approval of Overtime” which provides:

22.1.1    Overtime will only be worked with the prior approval of the employer.

22.1.2    Employees may work overtime without specific prior approval in emergency situations.

22.1.3    An employee required to work overtime, other than in the case of emergency, will be given reasonable notice of the requirement to work overtime.

9         It will be seen therefore that the working of overtime, whether on a paid basis or on a time off in lieu basis, requires the specific prior approval of the employer.  It cannot be said, on the evidence that is before me, that there was at the material times any emergency situation arising.  Accordingly in the circumstances the overriding provision remains clause 22.1.1.

10     Accordingly in this instance the Claimant needs to prove on the balance of probabilities that she at all material times had approval from the Management Committee of the Respondent to work the extra hours that she did by way of overtime.  In that regard, she has not been able to establish specific approval.  To the contrary, the weight of the evidence given in this matter is that she did not receive express approval to work overtime or extra hours.  Indeed, the evidence of Mrs Duncan and Mrs Bender suggests the Claimant was told that she could not work overtime.  Any hours that she chose to work in addition to her normal hours were to be on a voluntary basis.  The evidence of Mr De Saubin supports their contention in that regard; that is, that the Claimant knew full well that the extra hours were to be worked on a voluntary basis.  Indeed, the evidence of Mr Provost who was an independent witness confirmed that in his meeting with the Claimant and others in November of 2001 that the Claimant acknowledged to him that the extra hours she was then working were worked on a voluntary basis.

11     Each of Mrs Bender, Mr De Saubin and Mr Provost were credible and reliable witnesses.  I accept their testimony.  The most impressive of all the witnesses in this matter was, in my view, Mrs Duncan.  She was able to clearly portray the circumstances surrounding the Claimant's work and her claim before this Court.  What is apparent from her evidence is that the Claimant chose to work more hours than that required.  She did so against the direction of the then Management Committee and, indeed, of individual members thereof.  The Claimant's view was that she had to help all of those in need who attended at the premises of the Respondent organisation.  She accordingly did not turn away anyone.  That resulted in her taking on too much.  In that regard it is evident that the Claimant is a good-hearted person. She cares about her clients, and in so doing could not bring herself to turn away anyone.  However as a consequence of that she did far more than she was required to do.  Given that and given the various roles that she undertook for the Respondent, her ordinary hours of work were insufficient to carry out her tasks.  She consequently worked extra hours to keep up.

12     The Respondent became concerned about the amount of time that the Claimant was spending with her clients and indeed generally about the amount of work that she was doing.  The Respondent was so much concerned about that situation that it, through its office bearers, advised the Claimant to desist in working the way that she was.  She was to limit the amount of clients she took on.  In fact, the Respondent’s concern about the extra hours worked is reflected in the minutes of Management Committee meetings.  Those minutes also portray that the Claimant continuously asked for more hours.  Indeed, Mrs Duncan also gave evidence to that effect.  The Respondent made clear to the Claimant that because of its own financial situation it was not in a position to pay for any extra hours worked.  Notwithstanding that, the Claimant continued to work far in excess of what was required of her.

13     The Respondent was aware that the Claimant and others were keeping a record of the hours worked in addition to their normal hours.  It seems that the Respondent had hoped to utilise such information in order to obtain greater funding from funding organisations.  Not in its wildest dreams did the Respondent expect that the information would be used for the purposes of an overtime claim because it well understood that all the hours worked in excess of normal hours were to be regarded as being voluntary hours.

14     Exhibit 28 (time sheets) reflects that the hours recorded as extra hours worked were not to be regarded as being paid hours.  Indeed, the note on the time sheets themselves reflects the following - "Extra unpaid hours can be put in pencil for record only".  That notation on the time sheets reflects that the hours were to be unpaid and their recording was clearly for record purposes only.

15     Indeed the Respondent's concern about the cost of its employees working extra hours is well reflected in the minutes of its Management Committee meetings held on 10 June 2002 (exhibit 20), 24 January 2002 (exhibit 25), 28 February 2002 (exhibit 15) and 2 May 2002 (exhibit 5).  A careful reading of each of those minutes indicates that there was a concern expressed by the committee about the extra hours worked and there was an attempt made at reducing the amount of extra hours being worked by staff members.

16     To a very large extent, the Claimant's claim is predicated upon the basis of what is contained in the minutes of the Management Committee's meeting on 2 May 2002.  It is said by the Claimant that those minutes evidence recognition of the taking of TOIL and the necessity to record the same.  With all due respect to the Claimant, the minutes do no more than to reflect recognition that the employees had some flexibility in hours worked.  There is no specific reference to TOIL in the context of overtime as is provided in clause 22 of the Award.  Further, and in the same vein, the abolishment of TOIL referred to in the minutes of the meeting for 22 August 2002 (exhibit 7) does not necessarily indicate the reference to TOIL in the context of clause 22 of the Award.

17     In any event, the weight of the evidence is against the Claimant on the issue.  I find that the working of extra hours did not attract the approval of the Respondent.  There is no explicit approval shown, as is required.  To the contrary, the evidence of disapproval is far more significant.

18     The Claimant's contention that the fact she previously took two days TOIL is reflective of the employer's approval of TOIL does not assist her either.  Again, that TOIL was not necessarily taken in the context of a TOIL entitlement pursuant to clause 22.4 of the Award.  Indeed, the evidence led by the Respondent is suggestive that such TOIL was allowed for other reasons, which had nothing to do with overtime.

19     For the Claimant to be successful in her claim she must, at the very least, demonstrate pursuant to clause 22.1.1 of the Award she had approval from the employer to work overtime.  That is a fundamental precondition to her claim.  She has failed to establish that precondition.  For that reason, therefore, the claim cannot succeed and it follows that the claim ought to be dismissed.  The claim is dismissed upon both grounds of defence submitted by the Respondent in this matter.

20     The Claimant has been unsuccessful with respect of her claim and accordingly the Respondent's Counsel, on instructions from the Respondent, now seeks costs.  In that regard I recognise that this is a claim made pursuant to the Workplace Relations Act 1996, which is a Commonwealth Act.  Section 347 of that Act governs the issue of costs. It provides in subsection (1) that:

A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 170CP) (and this is not one of those matters) shall not be ordered to pay costs incurred by any other party to the proceedings unless the first-mentioned party instituted the proceedings vexatiously or without reasonable cause.

21     That provision is different to the relevant state provision that refers to proceedings “frivolously or vexatiously instituted.”  The decision in Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch v Falcon Investigations and Security Pty Ltd (2001) 81 WAIG 2425 referred to by Counsel for the Respondent in support of her submissions for costs dealt with the State provision.

22     The Workplace Relations Act 1996 provision expressly prohibits the award of costs unless the proceedings have been vexatiously instituted or have been instituted without reasonable cause.  There is absolutely nothing in the evidence before me, which would indicate that the proceedings have been vexatiously instituted. That is the first point to be made.  Secondly, the issue next to be considered is whether the proceedings were instituted without reasonable cause.  That is an objective assessment to be made on the part of the Court, and in the end, of course, whether or not costs are to be awarded is a discretionary matter based on that objective assessment.

23     In regards to this matter it is the case that the Claimant has been unsuccessful upon both limbs cited by the Respondent as being the basis for its denial of the claim.  Having said that, however, it is the fact that the Claimant took the view that she had a claim as against the Respondent based on the matters contained within the minutes of the meeting of the Management Committee and also by virtue of the particular circumstances that prevailed at her workplace.  In that regard it cannot in my view be said that the Claimant was without reasonable cause.  The Claimant, in her own mind, took the view that she had a legitimate claim.  The fact that she has been unsuccessful is immaterial.  The fact is that she has embarked upon this claim in the belief that she had a reasonable cause and she did so genuinely.  Upon that basis if one applies the provisions of section 347 of the Workplace Relations Act 1996, it cannot be the case that a costs order ought to be made.  I decline to order costs against the Claimant.

24     The claim is dismissed and there is no order as to costs.

G Cicchini

Industrial Magistrate