Back to Basics Personal Coaching Pty Ltd v Orion Training Performance Management [2011] QCAT 272

CITATION: Back to Basics Personal Coaching Pty Ltd v Orion Training Performance Management [2011] QCAT 272 PARTIES: Back to Basics Personal Coaching Pty Ltd v Orion Training Performance Management APPLICATION NUMBER: MCD86-10 MATTER TYPE: Other minor civil dispute matters HEARING DATES: 8 February 2011 and 14 March 2011 HEARD AT: Coolangatta DECISION OF: Ms J Cowdroy, Member DELIVERED ON: 7 June 2011 DELIVERED AT: Brisbane ORDERS MADE: The respondent is to pay the applicant the sum of $980 within 30 days. CATCHWORDS: Dispute over services rendered – respondent alleges work not performed or not competently performed – documents altered and signatures alleged to be fraudulent – applicant claim’s partly successful APPEARANCES and REPRESENTATION (if any): APPLICANT: Ms Litonjua RESPONDENT: Ms Manwill REASONS FOR DECISION Background to the Application [1] This is a claim for payment for services rendered. The applicant provided training and assessment services to the respondent. In about October 2009 the applicant and the respondent entered into an agreement that the applicant would provide to the respondent, training and assessment services for students of the respondent. The applicant continued in this capacity until April of 2010. During the course of this work, the applicant issued invoices for her services on a weekly basis. On 20 April 2010 the -- 1 of 8 -- 2 respondent advised the applicant that her services were terminated. The respondent has not paid the outstanding invoices, which consist of an amount of $3,900. The applicant seeks an order for payment of that amount plus interest and costs. [2] The respondent seeks an order that the applicant’s claim be dismissed on the basis that the applicant failed to deliver training and assessment as invoiced and that she fraudulently signed documents on behalf of students and/or workplace supervisors. [3] The hearing of the matter took place on 8 February and 14 March 2011. [4] Both parties gave evidence. Ms Litonjua was advised several times before the proceedings commenced that prosecuting authorities were able to access the record of any evidence given by her at this hearing, in the event that charges were laid against her in connection with her employment with the respondent. [5] The applicant was advised that if she did not succeed in this matter and findings were made about her credibility, this would be detrimental to her in the event of criminal charges being laid. There was also the potential for her evidence in these proceedings to be tested against any evidence she might give in the event of a criminal hearing. It was pointed out that it would be to her advantage to seek to have this matter adjourned until certainty about any criminal charges being laid was established. [6] The applicant indicated that she understood the implications of giving evidence, however she wished the matter to proceed. APPLICANT’S CASE: [7] The applicant gave evidence and provided numerous documents. She worked for Orion Training from 20 October 2009, with the first group of students, consisting of 12, on the Gold Coast. Within six months she was training and assessing 100 students. She provided numbered invoices weekly to Orion, who paid the amount direct into her bank account. Her charge for her services was dependent on the size of the group, whether she attends at the student’s workplace, classroom teaching, distance learning or marking. The majority of her claims are for $100 which relate to a workplace visit. [8] Each student that is enrolled receives a delivery manual, visits sheets and marking sheets. At the completion of each visit, the student, the student’s supervisor, and the trainer signs documents verifying the training session and these are submitted to Orion for payment. [9] The applicant provided copies of a range of material relating to her terms of employment with Orion Training, a statutory declaration from a student of the applicant engaged in classroom sessions who stated that he always -- 2 of 8 -- 3 signed the visits sheets along with the marking sheets during the applicant’s visits, e-mails sent to and from students, diary entries and other material. [10] Ms Litonjua contended that the affidavit tendered by the respondent from Ms Taylor to the effect that she did not receive appropriate training and had been advised that she would have to redo her qualification should be disregarded. The applicant pointed out that she had signed Ms Taylor “off” after six visits and she had been paid for those visits. There were also affidavits from students in respect to work for which she had been paid and she did not consider that they were relevant as the payments for those visits were not part of her claim. [11] The applicant maintained that the respondent was seeking an excuse for not paying her. Her explanation as to the contents of the affidavits were that Ms Manwill had contacted the students and supervisors and had slandered her name to them, as a result of which they were prepared to provide information which was untrue. [12] When I asked her why they would do this she indicated, “It all depends on what Orion said to the students”. The applicant pointed out that she had 140 students and eight affidavits were provided. She believed that the respondent had in effect manufactured evidence to avoid paying her. She was also aggrieved at the method of her dismissal, claiming she had no prior warnings or discussions that her work was unsatisfactory. [13] Ms Litonjua indicated that she did not know in some cases whether the supervisor signed the visit sheets; saying “if they (the students) walk out the door to get it signed, I don’t know who signed it”. She reiterated her claim that in each instance she had carried out the work. She provided a reference from her current employer, with whom she has been employed since July 2010. [14] The applicant contended that simply because the supervisor’s signature was absent, did not mean that she did not perform the work. She pointed to instances where the students signed and did not dispute that she had provided the training. The photocopied material was referable to the fact that sometimes students did not sign on the day of training, in which case she scanned the document to them and they sent it back by e-mail. On other occasions, she was in a rush and simply picked up the work, and forgot to ask for it to be signed. RESPONDENT’S CASE: [15] Ms Manwill is the sole director of Orion Training and Performance Management. She contends that the applicant did not follow appropriate procedures in her method of documentation and that she was in breach of the Training and Employment Act. In the case of student Hughson, the applicant simply dropped off the material to her but provided no training. -- 3 of 8 -- 4 [16] In the case of student Stanley, he started his traineeship on 4 April 2008 but was not progressing. He had a couple of visits from other trainers. Suddenly from 9 April 2010 until 20 April 2010 the student completed his entire qualification. Ms Manwill produced a document which showed liquid paper had been inserted on all four dates in relation to those claims. [17] The respondent contended that if the applicant attended the workplaces as claimed, there would be no need for photocopying of documents. The applicant’s claim would not be paid until everything was “signed off”, suggesting that this could be motivation on the part of the applicant to forge signatures. [18] The respondent indicated that the inclusion of Ms Taylor’s affidavit was indicative of the fact that her qualification was recalled and she had to be retrained. This occurred at considerable cost to Orion and Ms Taylor’s situation was an example of one of the students who had to be retrained. The respondent provided lists of payments previously paid to the applicant for training, where the same students had to be retrained and re-assessed. [19] In other instances, invoices were paid on the receipt of documents that contained forged signatures or lack of signatures. Ms Manwill alleged they demonstrated the dishonesty of the applicant and wanted the payments made to other trainers as a result of the applicant’s failure to deliver the service for which she was paid to be considered as an offset. Evidence: [20] The list of invoices, the student’s name, the dates, charges and the unit of education for which training was given was provided, as well as the individual invoices. The account for $3,900 was for services performed between 25 March 2010 and 20 April 2010. Invoices 233, 234, and 234 – Bartercard [21] The first three items are dated 25 March 2010 and they each relate to $100 Bartercard transactions. The applicant indicated that she took these charges from another trainer. She had to examine students’ work that had not yet been submitted, which involved considerable work. [22] The respondent claims the amounts are not payable by Orion as they are based on an agreement between the former trainer and the applicant. Invoice 286 – Austin [23] An unsigned affidavit from Ms Austin was produced by the respondent, however, an e-mail from Ms Austin dated 10 January 2011 was also tendered, confirming that the information in the affidavit was true and correct and that was she was unable to locate a Justice of the Peace to have the document signed in time for submission for the hearing. -- 4 of 8 -- 5 [24] Ms Austin states that she was asked by the applicant to write her supervisor’s name on a document during a visit on 15 March 2010. She wrote his name, where his signature should be inserted, although she did not feel comfortable doing so. [25] In respect to a unit Maintain Asset and Inventory Records, parts of the assessments submitted in her name were not completed by her. When the applicant advised her that she had completed her qualification she was concerned as she was still working on her assessments and believed she still required further training. The applicant advised her: “I just put in a little more information.” Ms Austin stated that she was subsequently retrained and re-assessed by another trainer. [26] Nigel Heyn who is Ms Austin’s supervisor provided an unsigned affidavit stating that he did not recall meeting the applicant. He recalled signing for a number of sessions in respect to another trainer. The signatures purporting to be his on a number of marking sheets are not his. Invoice 268 – Midgeley and Invoice 269 – Clayton [27] The fees for these students related to recognition of prior learning. The applicant contended that the work was performed by distance education and no signature was obtained. [28] The respondent relied on an affidavit of Kathleen Joyce Seib dated 22 November 210 in which the deponent states she was given the task of confirming the units completed by these students who had been deemed competent by the applicant. In respect to Ms Clayton’s records, none of the marking record sheets had her signature. Only two of 17 units were completed satisfactorily. In respect to Ms Midgeley, 4 core units had been deemed competent but evidence of competence was lacking in five units. Invoices 274, 275 and 276 – Rose [29] These invoices relate to three visits. The respondent contends that the signatures on pages 14-16 of the training manual have been copied from other documents, inserted and then re-copied. The Tribunal was shown the original documents. Invoices 277,278 and 279 – Keenan [30] The respondent alleges that photocopied signatures and forged signatures appear on visit sheets and marking record sheets. Invoices 254, 260, 261, 263 and 266 – Stanley [31] The respondent contends that there are forged signatures on visit sheets and marking record sheets. The supervisor Ian Marshall has since signed next to his name and the signature next to which he signed is not his. According to the respondent, Ian Marshall had signed next to his name to -- 5 of 8 -- 6 demonstrate the other signature was not his, but he did not want to give an affidavit. Invoice 265 – Lockhart [32] This is a recognition of prior learning student. The supervisor did not sign the visit sheet. The applicant contended that this did not mean she had not provided her services and did not understand the basis of the respondent’s refusal to pay. Invoices 251 & 252 – Ash [33] A signed affidavit dated 10 January 2011 from Ms Ash stated that on certain pages of the delivery manual and on certain marking sheets she was asked by the applicant to write the name of Lou Mostert, her supervisor. She affixed her own signature after each training session. Ms Ash stated that the applicant spent little time with her on each session; she only looked at the work she was completing and settled dates for her to get the work to her for marking. [34] An affidavit from Mr Mostert dated 10 January 2011 states that signatures on certain pages of the delivery manual were not his and nor were entries on the marking sheet for three of the units undertaken by Ms Ash. Invoice 256 and 285 – Hughson [35] These invoices represent claims for visits on 14 and 19 April 2010. The signature of the supervisor is written and not signed. The claim for 19 April 2010 is a copy of the first document but the date has been changed. Invoices 257, 274, 275 and 276 – Rose [36] The respondent alleged that the visit sheets for visits 5-8 were photocopied signatures and then inserted. Invoices 259, 283 and 284 – Selman [37] These represent sessions on 14, 16 and 19 April 2010. An affidavit dated 22 December 2010 from Ms Selman’s supervisor, Jacob Fraser states that he did not recall meeting the applicant. Some of the pages in the delivery manual are signed by him but pages 10, 12-14 were not signed by him but someone else. The page of 15 (un-numbered) is a photocopy of page 14. In respect to marking sheets for a number of units, he confirmed it was not his signature that appeared on them. Invoice 267 – Johns [38] The respondent relied on an affidavit of Jenny Johns, witnessed by a Commissioner for Declarations but undated. She stated that on each occasion the applicant attended her workplace to conduct training, she -- 6 of 8 -- 7 signed a delivery manual. The signature on the documents at pages 15 and 16 are not hers and she did not recall the applicant visiting the office on those days. [39] Ms Johns was critical of the assistance provided by the applicant in response to her queries and that she failed to respond to her e-mails. Ms Johns stated she required more training and reassessment of the work she had completed with the applicant. Consideration: [40] Firstly, it is not this tribunal’s role to decide whether the dismissal of the applicant was just, fair or in keeping with the relevant legislation governing such matters. The sole issue for the tribunal relates to determination as to whether she is owed an amount of money for services provided. [41] Apart from the claims under the Bartercard system, there are claims for payment on invoices 271, 280, 272, 281, 273, 282 and 264 in respect of which no evidence was given to rebut the claim that the services were provided. [42] The material advanced by the respondent to support the contention of dishonest practices on the part of the applicant was considerable. The applicant pointed out rightly, that despite irregularities in the paperwork, it did not follow that she had not attended the various workplaces and had provided a service to students. In theory, I agree. [43] However, the material placed before the tribunal did more than point to anomalies in the paperwork. The applicant’s explanations that sometimes students did not sign, or the supervisors are not available and she then e- mailed sheets and asked them to be returned seem reasonable on first glance. However, she had no plausible explanation as to why so many documents appeared to be photocopied, including signatures, and change made. [44] More significantly is the evidence contained in the affidavits from students, supervisors and trainers. They claim that they did not sign particular documents and the signatures that purport to be their signatures are not theirs. One student stated that the applicant asked her to insert the supervisor’s name, which she did reluctantly. In the affidavit of Kathy Seib, issues were raised about the standard of the applicant’s training and her method of assessing them as competent. [45] When faced with this evidence, the applicant’s explanation was that the students and Orion Training had conspired against her, on the basis that Orion had put some form of pressure on these students. No explanation was given as to why the students, supervisors or trainers would sign affidavits that were untrue or how the signatures were affixed to the documents in question. I do not accept the applicant’s explanation on all the issues which are crucial to the success of her claim. . -- 7 of 8 -- 8 [46] Some of the contentions of the respondent about the photocopying of signatures was not supported by an affidavit however neither was there any reasonable explanation from the applicant about these matters. [47] Accordingly, I find that the applicant’s claim for payment in respect of all invoices should be dismissed, other than invoices Nos 271, 280, 272, 281, 273, 282, 264, amounting to $980. I disallow her claims in respect to the Bartercard matters on the basis that they do not involve the respondent. [48] I consider that the applicant’s claims in the sum of $980 are made out. I am aware that the respondent seeks to have any amount ordered offset by amounts the respondent has outlaid for retraining and reassessment, however in the absence of detailed evidence from the students and from the new trainer about the nature of the re-training, there was insufficient evidence on this aspect. -- 8 of 8 --