Alice Coxon v Precious Cargo Lockleys Pty Ltd T/A Precious Cargo Education [2020] FWC 2246

1 Fair Work Act 2009 s.526—Stand down Alice Coxon v Precious Cargo Lockleys Pty Ltd T/A Precious Cargo Education (C2020/2700) COMMISSIONER PLATT ADELAIDE, 30 APRIL 2020 Stand down dispute - dispute about correct classification of applicant as casual or part-time employee – relevant to JobKeeper entitlements. [1] Further to the decision in transcript given ex-tempore on 29 April 2020, I provide the following more detailed reasons for my decision. [2] On 23 April 2020, Ms Alice Coxon lodged a Form F13 Application, under s.526 of the Fair Work Act 2009 (Cth) (the Act), concerning a dispute with her employer Precious Cargo Lockleys Pty Ltd T/A Precious Cargo Education (Precious Cargo) about the nature of her employment (casual versus part-time). Ms Coxon is employed by Precious Cargo as a Kitchen Hand. [3] The Application was listed for a telephone conference on 29 April 2020 owing to the urgent need for the matter to be resolved. The Applicant was represented by her brother Mr Angus Coxon and her father Mr Chris Coxon participated to a lesser extent. Precious Cargo was represented by Ms Mary Ibrahim of counsel with permission granted under s.596(2)(a) of the Act owing to complexity and efficiency with Ms Donna Brine and Ms Pat Lewis. [4] The matter was unable to be resolved by conciliation and after a short adjournment the matter was arbitrated. The hearing was conducted by way of Determinative Conference. [5] Whilst the application was made under s.526, no doubt owing to the fact that Ms Coxon had been ‘stood down’ owing to the COVID-19 pandemic, the key issue was the decision by Precious Cargo to not include Ms Coxon in its ‘JobKeeper’ application as a result of its contention that she was employed as a casual employee which was for a period less than the minimum required. Whilst I have some concerns about my powers to arbitrate the matter under s.526(2) of the Act, I clearly have power to arbitrate the matter under s.739 as a result of clause 3.3 of the Big Steps in Early Childhood Education and Care SA United Voice – Precious Cargo Education Pty Ltd Enterprise Agreement 20131 which covers and applies to Ms Coxon’s role. [2020] FWC 2246 REASONS FOR DECISION -- 1 of 4 -- [2020] FWC 2246 2 [6] The dispute concerns the determination of Ms Coxon’s employment type as at the time she was ‘stood down’ in March 2020. There are only two possible options - casual or part- time. [7] Evidence in support of Ms Coxon’s position was given by herself and her brother, Mr Angus Coxon. Ms Coxon also called Ms Rosslyn Merrett (Head Chef) to give evidence. [8] Evidence in support of Precious Cargo’s position was given by Ms Donna Brine (Operations Manager) and Ms Pat Lewis (Director). [9] The following documentary evidence was submitted:  Copy of Contract of Employment dated 21 October 20192  Copy of Timesheets for Ms Coxon for the period 6 January to 22 March 20203  Copy of Payslips for Ms Coxon for the period 30 December 2019 to 22 March 20204 [10] Ms Coxon’s evidence primarily consisted of the information contained in section 2.2 of her Form F13 Application,5 supplemented by a further short statement6 and her oral evidence. Ms Coxon accepted that she signed a written contract of employment7 and commenced employment as a casual employee. Ms Coxon contended that at the end of her probationary period of three weeks, she was offered a part-time role. The key portion of Ms Coxon’s evidence related to a conversation she had with Ms Lewis at work where Ms Lewis said ‘I would like to put you on a part-time contract’ in the presence of Ms Merrett. Ms Coxon contended that at this time (at the end of January 2020) she changed from a casual to part-time employee. [11] Ms Merrett supported Ms Coxon’s evidence that Ms Lewis was going to put her on a part-time contract and contended that Ms Lewis (after the JobKeeper issue arose) said she had made a mistake in not changing the contract and had to let Ms Coxon go. [12] Ms Coxon’s payslips indicate that Ms Coxon was paid the same hourly rate ($24.92 per hour) for the entirety of her employment. Ms Coxon said she trusted she was being paid correctly and did not question why the amount did not change once she believed she became a part-time employee. [13] Ms Coxon contended that after becoming part-time she agreed to work every Thursday and on additional days subject to her University commitments. The timesheets8 reveal that Ms Coxon worked every Thursday over the period of her employment to date and up to one or two additional days. This information does not assist me in determining the matter as it is consistent with both possible outcomes. [14] Ms Lewis provided a statement9 and gave evidence. The majority of her evidence was not disputed by Ms Coxon. Ms Lewis contended that she had observed Ms Coxon to be a hard working and reliable employee and that she had said to her that she would like to make her a part-time employee. [15] As to the suggestion by Mr Angus Coxon that in April 2020 Ms Lewis had admitted that she had made a mistake and it was an administration error that resulted in Ms Coxon being regarded as a casual employee - Ms Lewis advised that it was an out of hours phone call, that she felt under pressure to respond and that she may have said something of that -- 2 of 4 -- [2020] FWC 2246 3 nature. Ms Lewis was emphatic that it was her intention to offer a part-time role and that she had not acted to complete the required steps before the COVID-19 pandemic had struck. It appears to me that Ms Lewis felt some responsibility for Ms Coxon’s position. [16] Ms Brine gave evidence of the process for offering employment (including changes in employment) at Precious Cargo. This involved Ms Lewis approaching her to discuss the matter, consideration of internal candidates, budgetary considerations and then the drafting of a formal offer of employment (potentially by Ms Lewis). Ms Brine advised that casual employees are not subject to probationary periods. [17] Mr Angus Coxon also alleged that Ms Brine made a concession to him in April 2020, however Ms Brine was not present at the key conversation and thus any view expressed is reliant on what she had been told by others. [18] The issue of Ms Coxon’s employment type did not arise until she described herself as a part-time employee on a ‘JobKeeper’ related questionnaire on 16 April 2020. Consideration [19] I am not persuaded that Ms Coxon was offered part-time employment. The evidence before me (viewed objectively) presents a consistent picture of an intention for Ms Lewis to offer Ms Coxon part-time employment. It is unfortunate that the timing of the COVID-19 pandemic interfered in a likely offer. [20] The evidence does not support a finding that Ms Lewis or any other person changed Ms Coxon’s employment status. This view is also supported by the lack of any change to her hourly rate, which should have decreased by 25%, or the provision of a written contract of employment. That Ms Lewis felt some responsibility for Ms Coxon’s predicament does not mean she appointed Ms Coxon to a part-time position. [21] Whilst on the basis of the evidence before me I do not need to make a credit finding, having heard the evidence of Ms Lewis, I accept her as a witness of truth and do not believe that her conversation with Mr Angus Coxon is inconsistent with her conversations with Ms Coxon or is an admission that Precious Cargo made a mistake in relation to the correct employment type ascribed to Ms Coxon. [22] I find that Ms Coxon was employed by Precious Cargo as a casual employee throughout her employment to date. COMMISSIONER Appearances: -- 3 of 4 -- [2020] FWC 2246 4 A Coxon on behalf of the Applicant. M Ibrahim of counsel on behalf of the Respondent. Hearing details: 2020. Adelaide: April 29. Printed by authority of the Commonwealth Government Printer <PR718689> 1 [2013] FWCA 4092 2 Exhibit R1 3 Exhibit R2 4 Exhibit R3 5 Exhibit A1 6 Exhibit A2 7 Exhibit R1 8 Exhibit R2 9 Exhibit R5 -- 4 of 4 --