Centurion International Corporation Pty Ltd v Coetzee [2011] QCATA 14

CITATION: Centurion International Corporation Pty Ltd v Coetzee [2011] QCATA 14 PARTIES: Centurion International Corporation Pty Ltd (Appellant/Applicant) v Annemarie Coetzee (Respondent) APPLICATION NUMBER: APL148-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President Jim Allen, Member DELIVERED ON: 9 February 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Grant leave to appeal; 2. Allow the appeal in part; and 3. Order that the Respondent pay the Applicant the amount of $279.90 within 14 days. CATCHWORDS : APPEAL – MINOR CIVIL DEBT Proceeding – where former employee seeking reimbursement of amounts deducted by employer from pay without consent Fair Work Act 2009 (Cth) Queensland Civil and Administrative Tribunal Act 2009, ss 32, 142(3) Boral Resources Qld Pty Ltd v L J Pyke [1990] AILR 336 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited QUYD Pty Ltd Marvass Pty Ltd [2009] 1 Qd R 41, cited APPEARANCES and REPRESENTATION (if any): -- 1 of 7 -- 2 This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION President: [1] I have had the advantage of reading the reasons of Mr Allen, QCAT Member. I agree with them and with the orders he proposes. Mr Jim Allen, Member: [2] Ms Coetzee was employed by Centurion International Corporation Pty Ltd (Centurion) as a sales representative from 8 September 2008 until December 2009. Centurion provided Ms Coetzee with a laptop computer for use in her work. The computer was damaged sometime in June 2009 with costs to repair it being $606.10. This amount was deducted from Ms Coetzee’s wages by Centurion over the period July to October 2009. [3] Ms Coetzee resigned from her employment with Centurion in December 2009. At the time of her resignation Ms Coetzee was in possession of the computer and it was not returned by her to Centurion. When Centurion calculated Ms Coetzee’s final wage entitlements an amount of $539 was deducted from them, being the depreciated value of the computer. [4] Ms Coetzee made an application to the Fair Work Ombudsman in respect of the deductions from her wages and an amount of $323.26, for unauthorised deductions from her minimum wage entitlements, was paid to Ms Coetzee by Centurion following an investigation by the Fair Work Ombudsman. Ms Coetzee provided to the Tribunal a copy of a letter from the Fair Work Ombudsman dated 21 January 2010 confirming the finding of the Fair Work Ombudsman. [5] The amounts which Ms Coetzee claimed in her application had been deducted by Centurion were as follows: 26 June 2009 $280 11 July 2009 $280 24 July 2009 $100 21 August 2009 $100 4 September 2009 $100 18 September 2009 $100 2 October 2009 $106 16 October 2009 $50 11 December 2009 $539 2 -- 2 of 7 -- 3 [6] Ms Coetzee made an application to QCAT in its minor civil disputes jurisdiction, in respect of the balance of the monies deducted from her wages in the amount of $802.74. She provided payslips and bank statements in support of her claim. This claim was on the basis that a total of $1,126 had been deducted from her wages and she had received payment from Centurion of the amount of $323.26. Ms Coetzee was not claiming the amount of $539 as she had retained the laptop computer. [7] Centurion provided a written submission and a spreadsheet for the original hearing, setting out the amounts which it claimed had been deducted from Ms Coetzee’s wages in respect of the laptop computer as follows: 11 July 2009 $100 21 August 2009 $100 4 September 2009 $100 18 September 2009 $100 2 October 2009 $106.10 11 December 2009 $539 Centurion confirmed that there was an additional $180 deducted on 11 July 2009 and stated that this amount was for an airfare for Ms Coetzee’s husband. [8] The matter was heard by a QCAT Adjudicator on 13 July 2010. The adjudicator noted in his decision that “the figures in this matter are unfortunately loose and I wish that they had been better presented”. The Adjudicator identified that there were two amounts in contention between the parties. These were the first deduction in the amount of $280 on 26 June 2009 and a later deduction of $50 on 16 October 2009. [9] Centurion had asserted at the hearing that the $50 was in respect of a MYOB assistant upgrade and that the amount of $280 had not been deducted. The Adjudicator found for Ms Coetzee in regard to the question of whether these amounts had been deducted from her wages, on the basis that there was no evidence in respect of MYOB and that on his adding up of the number of claims and the number of bank records, they seemed consistent with Ms Coetzee’s application. [10] The learned Adjudicator also found that Centurion had no right to charge Ms Coetzee for damage to the laptop, saying in his reasons: “A man working in a mine who damages a million dollar piece of equipment, does not have to pay for it. What’s more, these are matters for business insurance and deduction. So, it’s not something for the employee to be paid”. 3 -- 3 of 7 -- 4 [11] The Adjudicator also found that the amount of $539, in regard to the payment for the laptop computer, was uncontentious and had been agreed. He further found that “the total amount of deductions have been $1,116 and that payment has been made toward this at $323.26 and as such, I find that the amount of $792.74 is owing by the respondent to the applicant”. [12] Centurion seeks leave to appeal the Adjudicator’s decision. This Appeals Tribunal ordered that the application for leave to appeal (and the appeal, if leave is granted) would be heard on the papers following the filing and serving of submissions by the parties. The Appeals Tribunal has received the parties submissions, which are discussed below. [13] Leave to appeal is required because of section 142(3) of the Queensland Civil and Administrative Tribunal Act 2009. Leave to appeal will ordinarily be granted only where the decision maker erred and an appeal is required to correct a substantial injustice caused by that error;1 or the question in issue be one of general importance, and accordingly, one which the public interest requires should be subject of further argument and decision.2 [14] Centurion submits, in its grounds for appeal, that the adjudicator did not read its submissions and that most of his questions were asked of the applicant despite the fact that there was evidence that Ms Coetzee’s version of the history of certain matters was unsupported by documentation. [15] Centurion also contends that, due to Ms Coetzee’s miscalculation for her claim and claim dates, there is new evidence which needs to be presented and reviewed. This evidence concerns the amount of $280 claimed to have been deducted on 26 June 2009, the amount of $50 which was claimed by Ms Coetzee to have been deducted on 16 October 2009, and part of the amount of $280 deducted on 10 July 2009 in respect of the airfare for Ms Coetzee’s husband. [16] As to the payment for the repair of the computer, Centurion submitted that Ms Coetzee had agreed to this payment and an instalment schedule method; and that Ms Coetzee’s employment agreement and an agreement regarding computer responsibility had been submitted to the tribunal but had been wrongly ignored by the learned Adjudicator. [17] Centurion submitted that the award by the Fair Work Ombudsman was made on the basis that Ms Coetzee would return the computer, and that she has been overpaid an amount of $323.26 as a result of the Ombudsman’s award. Centurion further submitted that the Adjudicator had shown bias by responding to a question about the money which did not exist in the bank records by saying “it’s only a couple of hundred dollars you are talking about”. 1 QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257. 2 McIver Bulk Haulage Pty Ltd v Freuhauf Australia Pty ltd (1989) 2 Qd R 577 at 580. 4 -- 4 of 7 -- 5 [18] With its submission to the Appeals Tribunal Centurion provided, amongst other material, a letter to the Fair Work Ombudsman dated 12 January 2010, a letter from Centurion’s pay roll officer, Yu-Mei Wang, dated 18 August 2010, a letter from the Fair Work ombudsman dated 21 January 2010 and a quote for repairs to the laptop computer dated 23 June 2009. [19] Ms Coetzee, in her submissions to the Appeals Tribunal, provided a further reconciliation of her pay slips and bank statements supporting the amount which had been awarded by the adjudicator. She stated that the airfare for her husband had been offered to her by Centurion and that at no time had it been indicated that she would have to repay it. [20] In regard to the computer, Ms Coetzee confirmed that it had been damaged accidentally, that a quote of $606.10 had been obtained for its repair and that she was told it was to be deducted from her wages at a staff meeting. She said that she did not agree to the deduction, and made that clear at the meeting, and that statements by other staff members who attended the meeting should be treated with disdain. Ms Coetzee also said that Centurion had contacted the police about the non- return of the laptop computer and that a letter of demand had been received from a collection agency seeking payment for it. [21] To determine if the learned Adjudicator had erred in his decision, I undertook a reconciliation of the claim by Ms Coetzee and the evidence that she had provided to the Tribunal in support of that claim. The payslips provided by her and her bank statements show deductions from her pay as follows: Date 10/7/09 24/7/09 7/8/09 21/8/09 4/9/09 18/9/09 2/10/09 Total Entitlement $1,323.38 $1,323.38 $1,323.38 $1,323.38 $1.323.38 $1,323.38 $1,323.38 $9,263.66 Paid $1,043.38 $1,223.38 $1,223.38 $1,223.38 $1,223.38 $1,217.28 $1,273.38 $8,427.56 Difference $280.00 $100.00 $100.00 $100.00 100.00 $106.10 $50.00 $836.10 [22] Ms Coetzee claimed that an amount of $1,116 had been deducted from her pay, the difference being an amount of $280 which she claims was deducted on 26 June 2009. There was no evidence before the Tribunal at the original hearing to support this amount and Centurion, in its submissions to the Tribunal, had denied that it was deducted. [23] The learned Adjudicator said, in his reasons, that “on my simple adding up of the number of claims and the number of bank records, they seem to be consistent with Ms Coetzee’s application.” As the reconciliation exercise shows, however, it is clear that they do not match up to the claim and that there has been a duplication of the bank statement for 10 July 5 -- 5 of 7 -- 6 2009, which has been used for both the 10 July 2009 and 24 July 2009 claims. [24] The payslips do not show any deductions for the computer repairs, and the net pay must be reconciled to the bank statement to ascertain the amount of deduction. [25] In light of the demands of the minor civil disputes jurisdiction and the fact that neither of the parties had been able to accurately reconcile the pay deductions before, or at, the hearing it is, with respect, unsurprising that the learned Adjudicator has made an apparent error in calculating the amount deducted by Centurion from Ms Coetzee. [26] Centurion has appealed in regard to the amount deducted for the laptop computer on the basis that Ms Coetzee had agreed to be responsible for it and that, when it was damaged, she had agreed to pay for the damage by way of fortnightly deduction. The learned Adjudicator found that, as an employee, Ms Coetzee should not be responsible for payment of the damage to the laptop computer. In Centurion’s letter to the Fair Work Ombudsmen it is stated that: “At the time she verbally agreed to have $606.10 garnished from her wages on a fortnightly basis”. [27] While the adjudicator found that an employee should not have to pay for the repair of work tools having regard to decisions such as Boral Resources (Queensland) Pty Ltd v L.J Pyke [1990] AILR 336 this may not be the case. The finding though in regard to the amount deducted for the repair is supportable on the basis that it was not a properly authorised deduction in accordance with the Fair Work Act 2009 (Cth) as it was not as required by that Act authorised in writing. This requirement is made clear in the letter from the Fair Work Ombudsman to Centurion. [28] Ms Wang in her statement about the $180 airfare for Ms Coetzee’s husband states that “she (Ms Coetzee) authorised me verbally to deduct the airfare from her wages”. So likewise this deduction is not allowed as it was not authorised in writing. [29] Centurion had submitted that the payment made by it of $323.26 had been made on the basis that the Fair Work Ombudsman had stated Ms Coetzee would return the laptop computer. There was no evidence provided either at the original hearing or to the Appeals Tribunal to support that contention. Ms Coetzee had retained the laptop computer and an amount of $539 representing the depreciated value of that computer had been deducted in her final entitlements. Ms Coetzee had not sought to claim this amount back in her application. [30] There was also an amount of $50 which Ms Coetzee had claimed in her application was deducted on 16 October 2009 but upon investigation by Centurion was deducted on 2 October 2009. At the original hearing Centurion had not been able to explain this amount properly as they did 6 -- 6 of 7 -- 7 not realise it had been deducted on 2 October 2009. Centurion provided evidence to the Appeals Tribunal to show that this amount represented overpaid expenses for parking which had been claimed twice. Centurion did not provide any evidence to the Appeals tribunal that this deduction had been authorised in writing by Ms Coetzee. [31] The learned Adjudicator has erred in calculating the amount that Ms Coetzee is entitled to in reimbursement for amounts deducted from her wages by Centurion and, by reason of that error, Centurion should be granted leave to appeal. [32] The earlier reconciliation of Ms Coetzee’s pay slips and bank statements shows that an amount of $836.10 was deducted from her wages. This represents an amount of $606.10 in respect of repairs to the laptop computer, $180 for reimbursement of Mr Coetzee’s airfare and $50 for overpaid travel allowance. Ms Coetzee was reimbursed an amount of $323.26 by Centurion following the investigation by the Fair Work Ombudsman, which leaves an amount of $512.84. [33] Centurion required Ms Coetzee’s authority in writing to deduct those amounts in accordance with the Fair Work Act 2009 (Cth). It did not have that authorisation and the amount of $512.36 was the sum properly owing by Centurion to Ms Coetzee to reimburse the incorrectly deducted amounts. The learned Adjudicator incorrectly ordered that Centurion reimburse Ms Coetzee an amount of $792.74. The difference should be refunded. [34] The appeal should, then, be allowed in part. Ms Coetzee’s submissions to the Appeals Tribunal showed that she received the amount of the original order on 15 August 2010. Ms Coetzee is therefore ordered to repay Centurion the amount of $279.90 in satisfaction of the appeal. [35] For the sake of completeness, I observe that there is no substance or merit in Centurion’s submission alleging bias: the transcript clearly shows that the comments complained of were made after the learned Adjudicator had announced his decision. Centurion’s representative chose to remain after the hearing and, as it were, argue the point with the Adjudicator who seems, unsurprisingly, to have become a little exasperated. The point is, of course, that he had already given his decision. 7 -- 7 of 7 --