PR924571 PR924571 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170CE application for relief in respect of termination of employment Kylie Louise Catheray and Walter's Wine Bar (U2002/4797) COMMISSIONER SMITH MELBOURNE, 22 JANUARY 2003 Termination of employment. DECISION Introduction and Background [1] Ms Kylie Catheray seeks relief pursuant to section 170CE (1) of the Workplace Relations Act 1996 (the Act). It is argued by Ms Catheray that she was dismissed from her employment at Walter's Wine Bar (Southgate) Pty Ltd (Walter's) on 16 August 2002. [2] On 31 October 2001 Ms Catheray commenced employment on a casual basis at Walter's. However, Ms Catheray approached Walter's and advised that her earnings were exceeding her limit for social security purposes. 1 Arrangements were then made for her to convert to full time employment and this occurred on or about 23 January 2002. During mid May 2002 there were further negotiations to reduce hours of work for reasons associated with social security benefits and family responsibilities. It was the evidence of Ms Catheray that she thought she was moving to part-time employment, whereas Walter's submitted that it was a return to casual employment. [3] On this aspect the jurisdiction matter arises. [4] Walter's, pursuant to section 170CE A, moves that the application be dismissed on the ground that it is not within the jurisdiction of the Commission. In particular, it is argued that firstly, Ms Catheray was a casual employee and secondly, and in any event, she was not terminated at the initiative of the employer. [5] I turn firstly to consider the nature of the contract of employment. Casual or Part-time? [6] From Ms Catheray's perspective she was a part-time employee from about mid May 2002 when she understood that she would work a minimum of 25 hours a week at a weekly rate of $450. In addition she would be paid $18 per hour for any hours work over 25 per week. Further, Ms Catheray relied upon the fact that the word "casual" did not appear on her pay slips and that a letter was given to her which confirmed her appointment but did not indicate that her employment was casual. The letter was in the following terms: " This is to confirm that Kylie Catheray has been employed at Walter's Wine Bar since 31st October 2001 till present. Kylie works a guaranteed 25 hours per week and is on a salary of $450 Gross per week. Her salary is paid into her son's bank account XXXXX. If you have any further enquiries please do not hesitate to contact me on XXXXX." 2 [7] The letter was signed by the payroll officer Ms Rebecca Palman. [8] However, Walter's argued that Ms Catheray agreed to change from full-time employment to casual employment 3 but that negotiations took place on the amount to be paid and worked. It was the evidence of Ms Cheffins: " And was there, however, some further negotiations required on how much she would be paid for less hours?---Yes. As has often been the case with Kylie's situation, we have had to make changes to our payroll in order to accommodate for her, whether it be for submitting letters for the bank or so that she can receive the full entitlements and not cut entitlements, and we have been very flexible because we had the understanding that she is a single mother and we try to look after our employees as best as possible. Whilst these negotiations were going about, there was an agreement that was reached. She would receive $450 gross for the 25 hours. However, this was as a casual employee; correct?---That is correct." 4 and further: " Yes. Did you mention the term "casual" at all?---Absolutely. Absolutely. In those discussions?---Yes, definitely. I mean, obviously she was a full time employee and this was changing to a casual amount and that is why we had offered her an amount of $18 per hour. Although she was happy with the amount we were going to pay her, she was not happy with it being a casual rate on the books because it would mean she would have to go in to - and change her Social Security details on a weekly basis, which is how we do our pays. I see?---And also because the bank required for her to have an income that was guaranteed every week. So for that reason we agreed to accommodate for her by putting her on the books for 450 per week. Even though we had agreed to this amount for 25 hours, the 25 hours were barely ever met." 5 [9] It was the evidence of Ms Cheffins that two weeks notice was given of the change to the contract of employment. 6 On 16 May 2002 a letter was placed in Ms Catheray's pay envelope 7 which stated: " As of the 29/5/02 Walter's Wine Bar will employ you as a Casual employee. As requested by you for Centrelink and Home Loan purposes we agree to pay you a set amount of 450 per week for 25 hours." 8 [10] Ms Catheray stated that she never received this correspondence. [11] On the question of whether or not Ms Catheray was a part-time or casual employee it appears to me that the evidence given by Ms Cheffins and Ms Palman 9 has a greater synergy with the position adopted by Walter's that Ms Catheray was a casual employee compared with the position advanced by Ms Catheray that she was a part-time employee. It seems to me that Ms Catheray was more concerned to ensure that her social security benefits were not jeopardised by her earnings, whilst at the same time, seeking to put forward an impression to her bank which would facilitate obtaining a home loan with the first home buyers grant. [12] From the evidence it appears that Walter's assisted Ms Catheray in trying to meet her competing objectives and it would now be inequitable for it to be in some way penalised for arranging the outward appearance of Ms Catheray's employment to suit her objectives. [13] It follows that I find that Ms Catheray, at the relevant time, was a casual employee. Termination at the Initiative of the Employer? [14] For eight weeks when Ms Catheray started to work the new roster as a casual employee she only twice worked 25 hours or more. 10 This was of concern to Walter's and as business had dropped and financial losses were being experienced, again another two weeks notice was given that Ms Catheray's shifts would change and that her payment for such work would revert to an hourly rate. [15] The evidence of Ms Catheray on this point was that she was aware that business was slow but that she would be given hours when they became available. It was Ms Catheray's evidence that she then asked for a reference to help her try to obtain employment elsewhere. 11 The reference was given and it began " Kylie Catheray was employed ......................... " 12 . This prompted a response from Ms Catheray in the following terms: " I am writing to you with my concern of the letter of reference that I received on the 17th August 2002 (dated the 16th of August 2002). I refer to the letter being written as my employment as a past tense and having being ceased. It was my understanding (through various talks with the head chef) that the lack of available work for myself was only a short-term situation and that I was still employed at Walter's Wine Bar. It was also made very clear to me that my performance as a chef had no bearing to the lack of shifts and that I was still employed and was not terminated. As it appears that my employment at Walters Wine Bar has been terminated, I require a separation certificates stating reasons for the termination for the Department of Social Security. I would finally like to request any superannuation, holiday and annual leave that is owing to me be paid as soon as possible and any information regarding this (i.e. pay slips) to be forwarded to my address." [16] In response to a question whether or not a separation certificate was issued, Walter's submitted: " No. We received that letter and two days following we received the termination proceedings, so there wasn't very much room for a phone call or a blink of the eye between that letter and the actual - and we were quite shocked to get that letter, to hear that she had been terminated, because as far as we were concerned, she was still on our books as an employee." 13 [17] The evidence on this point is clear. Ms Catheray had been advised, as recorded in her letter, that the lack of available work was for a short term. It was Ms Catheray who sought the reference to assist her with work in the interim. The time between Ms Catheray's letter and the initiation of proceedings in the Commission mitigated against any sensible discussion. [18] Against this background I find that Walter's did not terminate the employment of Ms Catheray. Conclusion [19] I have found that: · Ms Catheray was a casual employee at the relevant time. In this connection she had been a casual employee for a short period as envisaged by regulation 30B(3). · Ms Catheray's employment was not terminated at the initiative of the employer. [20] It follows that the application made by Ms Catheray is not within the jurisdiction of the Commission. The application is struck out and the order is attached. 14 BY THE COMMISSION: COMMISSIONER Appearances: T Koletsos on behalf of Ms Kylie Catheray. C Bourke with P Cheffins , W Bourke and R Palman on behalf of Walter's Wine Bar. Hearing details: 2002. Melbourne: November, 11. Printed by authority of the Commonwealth Government Printer <Price code C> 1 Exhibit A1, paragraph 2. 2 Exhibit A4. 3 Evidence of Ms Cheffins. See Transcript, PN224. 4 Transcript, PN227-228. 5 Transcript, PN231-233. 6 Statement of Philippa Cheffins and see also Transcript PN202-3. 7 Evidence of Ms Palman. See Transcript PN293. 8 Exhibit A3. 9 Ms Palman was required to give evidence by Ms Catheray, she was not called by Walter's. 10 Transcript, PN116. 11 Transcript, PN122. 12 Exhibit A4. 13 Transcript, PN214. 14 PR926644