100422851

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES CLIVE DAVID PALMER

CLAIMANT

 -v-

 PERTH HOSPITALITY PROFESSIONALS PTY LTD ABN 58 009 369 797 T/A AUSTRALIAN SCHOOL OF TOURISM AND HOTEL MANAGEMENT

RESPONDENT

CORAM MAGISTRATE G CICCHINI IM

DATE  THURSDAY, 22 APRIL 2004

CLAIM NO M 186 OF 2003

CITATION NO. 2004 WAIRC 11477

_______________________________________________________________________________ 

Representation

Claimant Mr TCP Solomon of Crossley-Solomon Industrial Relations Consultants.

Respondent Mr W Loffelman (of Counsel) instructed by Corsers, Barristers & Solicitors.

_______________________________________________________________________________

Reasons for Decision

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

1         The Claimant is a chef, and he holds the relevant qualifications.  He has extensive experience within the hospitality industry, and particularly within the culinary area.  He has managed and owned various culinary establishments, both overseas and in Australia.  The Claimant has a penchant for teaching his particular trade, and is currently a secondary school teacher, teaching cooking.

2         In about April or May of 1999, the Claimant approached Mr Williams, the Respondent's Director, who he knew, with a view to gaining a teaching position with the Respondent.  As a consequence of that, he later met Mr Max Tangermann, the Respondent's Director of Culinary Arts, who offered him a position of Chef Lecturer (casual) subject to the Claimant undertaking, at his expense, a trainer's course, which the Claimant in fact did.

3         The Claimant accordingly was appointed to his position, and commenced working for the Respondent on 10 May 1999.  The Claimant testified that he did not sign a contract of employment.  However, he was given a job description document, which outlined the conditions of the employment and the employer's expectation.  He was given what has now become exhibit 13.

4         The Claimant readily concedes that he was initially employed as a casual on the basis that there was no entitlement to paid leave and that he was informed of those conditions of employment before he was engaged.  Indeed, that oral agreement between himself and Mr Tangermann on behalf of the Respondent, together with the conditions of employment which were produced in the form of exhibit 13, constitute the contract of employment between the parties.

5         The Claimant remained as a casual employee until 5 November 2001, at which time he became a full-time employee until such time as he ultimately finished working for the Respondent on 24 January 2003.

6         The Claimant alleges that, although the Respondent employer classified him as a casual lecturer, the hours that he worked, the nature and the pattern of the employment was not that of a casual worker, and that, in fact, it was more consistent with that of a full-time employee.

7         The Claimant says that his duties as a lecturer included the following:

1. The delivery of practical and theoretical lessons;
2. The conducting of practical and theoretical assessments;
3. The training and assessment of apprentices at the workplace;
4. Attending upon open days at the school;
5. Preparing lessons;
6. Marking student exam papers;
7. Setting student assessments;
8. Maintaining the kitchen at the school premises;
9. Being involved in the placement of students at workplaces; and
10. Liaising with industry for student employment.

8         The Claimant also says that his hours of work in performing those tasks were governed by the operative “term schedule” and “time table”.  That meant that he worked Monday through to Friday for a period of ten weeks per term.  During the term breaks he was also required to work up to forty hours per week visiting students and apprentices in the workplace in order to conduct assessments.  He also at those times sought new business for his employer.  The structure of his employment consisted of regular hours.  It was subject to a time table structured over the whole academic year, although delineated into terms.  Accordingly, the Claimant says that he had the expectation of ongoing and continuous employment; indeed, the Respondent fostered the perception of such.  The Claimant says that throughout his employment he worked on a continuous and ongoing basis.  He was never employed in a series of separate or distinct contracts of employment, as would be the case with a casual employment relationship.

9         Given that his employment was not governed by an award or agreement, the Claimant says that he is entitled under the Minimum Conditions of Employment Act 1993 to the payment of annual leave and public holidays for the material period during which he was categorised as a casual employee when, in fact, he should have been categorised as a permanent employee.  The amount he seeks in that regard is $9643.19.  He also claims pre-judgment interest thereon.  He also seeks the imposition of a penalty.

10     The Claimant's case rests upon his testimony and that of his witnesses, namely Mr Roche and Mr Smith, both of who were former colleagues of the Claimant, and who worked for the Respondent at the material time.  It is fair to say that each of Mr Roche and Mr Smith gave corroborative evidence concerning the nature of the duties performed by the Claimant.  They also testified concerning the perception fostered by the Respondent that the Claimant was an integral part of the teaching staff and an important member of the Respondent's business activity, that being inconsistent with the concept of casual employment.

11     Much of the evidence given by the Claimant, as supported by both Mr Roche and Mr Smith, was not seriously challenged by the Respondent.  Indeed, the Respondent's director, Ms Leslie, being the only witness called by the Respondent, did not take issue with much of the evidence given by the Claimant or that given by the Claimant's witnesses.

12     It is therefore the case that much of the evidence is not in dispute.  The factual matrix remains largely constant across both the Claimant's and the Respondent's cases.  The matter, to a very large extent, is to be determined on the uncontested factual circumstances alleged by the Claimant.

13     Accordingly, accepting the Claimant's view of the evidence, can it be found that his claim is made out?

14     In the consideration of this matter, the starting point must be the recognition that the claim is brought pursuant to the provisions of the Minimum Conditions of Employment Act 1993.  The Claimant says that at all material times he was a permanent full-time employee.  The Respondent contends that the Claimant was, during the said time, a casual employee.

15     Section 3(1) of the Minimum Conditions of Employment Act 1993 (hereinafter referred to as “the Act”), defines what is meant by “casual employee”.  It provides that:

“casual employee” means an employee who is employed on the basis that-

(a) the employment is casual; and

(b) there is no entitlement to paid leave,

and who is informed of those conditions of employment before he or she is engaged;

16     That definition is enunciated for the purposes of the Act unless the contrary intention appears.  There does not appear to be any contrary intention expressed in the Act for the purposes of my consideration of this matter.  It will be obvious, therefore, that the Court is not called upon to construe the meaning of “casual employee” at common law, because the legislation explicitly tells the Court what the meaning of “casual employee” is.  If the facts permit the inclusion of the Claimant within the definition, that then is the end of the matter.  There is simply no need to go outside the provision.  The issue for the Court is whether, as a matter of fact, the Claimant falls within the definition.  If he does, he is a casual employee for the purposes of the Act.  If he does not, then he is not a casual employee within the meaning of the Act.

17     In this matter the evidence overwhelmingly dictates that the Claimant is a casual employee within the meaning of the Act.  That conclusion is achieved on the Claimant's own admission that:

(1) His employment was casual; and

(2) There was no entitlement to paid leave;

and that he was informed of those conditions of employment before he was engaged.  Indeed, exhibit 13 is reflective of the Claimant's position, and evidence, in that regard.

18     Irrespective of what the common law appraisal of the Claimant's situation might conclude, the fact remains that, applying the relevant statutory definition, he is a casual employee for the purposes of the Act.  It is the Act that I am concerned with in the determination of this matter.  The common law principles cannot assist, and do not assist, in that regard.

19     The Claimant, through his agent, has, in submissions, laboured the point that he may not have been a casual by virtue of the failure to pay a loading pursuant to section 11 of the Act, or, alternatively, that there has been a failure to disclose the payment of a loading.  In that regard, it will be evident that nothing in the definition of casual employee in section 3(1) requires that an employee be expressly informed of the amount which is to be paid which is said to represent the loading component.  Indeed, all section 11 of the Act requires, by reference to section 10, is that there is a payment of a minimum rate of pay plus twenty per cent, or fifteen per cent as it previously was.

20     In this matter before me it is implicit, if not explicit, that the Claimant was paid a casual loading.  Based on his rates of pay as referred to in exhibits 10 and 11, there can be no doubt that the Claimant was paid a loading and that there was compliance with section 10 and section 11 of the Act.

21     The pivotal element to be proved by the Claimant in this matter is that at all material times he was an employee who was entitled to payment for annual leave and public holidays.  To do that, he necessarily has to exclude the applicability of the “casual employee” definition.  Rather than exclude it, the evidence that he has given goes to prove his inclusion within that definition.  A casual employee within the meaning of the Act is not entitled to be paid annual leave or public holidays.  The Claimant, as a casual employee is accordingly not entitled to such payment.  It follows that the Claim is not made out.  In view of my finding, it becomes unnecessary to consider the other submissions that have been made.

22     The claim is dismissed

G Cicchini

Industrial Magistrate