Brothers Union Club (Brisbane) Limited v Hoey [1994] ICQ 26 (1994) 146 QGIG 834

834 QUEE NS LAND GOVERNMENT IND USTRIAL GAZETT E (2 1 Octobe r, 1994 ### ######## ############## #### #### ####### #############1//f QUEENSI AND IND UST RI AL COURT lndus1rial Relmions Act I 990 s. 118(3 J •• appeal from decision of in dll str ia l magistrate Brothers Un ion Club ( Rri sbane) Li mited AND Neil Jo hn Hoey (1Vo C49 of /993; JUST ICE MACKENZI E. PRESIDENT IO Octoher 1994 Appeal - Decision of Industrial Mag ist ra le - Sc:v..:rencc Pay - Permanen t Employment - Casual Employment - Club Etc. Employet:'s Award - South- Eas1 Queensland (clause 23 k ss than 15 employees) -·· Appeal a ll owed - Order of In du stri al Mag istrat<.: ~et aside -- No order as to costs. JUDGEMENT This 1s an appeal against an order of an lndustnal Magistrate th at Brothers Union Cl ub p<1 y severence pay in t he su m of $2 ,940.00 to Da n iel fohn Case}. Mr Ca5c y was at the time of rek vam events employed as Bar Manage r at the club. He had commenced .:mplo)ment there as a Ba r Supervisor in June 1989. Fo r ab ou t six mon ths his employment was casual but afier that it was penn an e nt until Scptemhe.r I992 whe n 1h c event, from which these proceedings have a ri se n occurred. Mr Ca sey 100k two weeks recreation lea ve fr om 31 August 1992 to 13 September I 992 for the pu rp ose of his honeymoon. His wi fe had fr om January 1990 been employed as a casual employee wi th 1he clu b. Pr ior to 24 August, 199 2. she infonned the Secretary Manager 1ha t s he was getti ng marr ic.d and would like Lhree weeks off wo rk from 24 August 1992 to 13 September 1992. In an affidavit a<.l milled by leave in these proceedin gs she said that it was the pract ice 1hat ir a casual em ployee did 1101 wish Lo " ◊rk fo r a certain per iod or time t he em pl oyee wou ld advise the Secn:.tary Manage r and th e ros1e rs wou ld lake that req uest into acc ou nt. On I4 September 1992 . wh en Mr Casey was due to resume work he phoned the General Manager Mr Par ki nson who asked him to come lo sec him. Mr Pa rkinson informed him Lh at he d id not want a pennanent Ba r Manager and raised the ques tion of his wife and him work in g at the club together. Mr Casey <.liscussed t he mat ter wi1h h is wi fe and th ey decided th at he wo uld cont in ue to work a1 the Club. Ile advised Mr Pa rki nson of this and was given his roster fo r tha t week. However, from that ti me 0111\·ards his emp loy ment was conv,med from pennanent to <.:asuai. Mr Casey gave evidence that because of the: pote nt ial va ri aiion in income from week lo week a casual positi on was not su itable. He ceased working at the Club on or about 20 Scpicmbcr 1992 . Th e issues in 1h.: rnat,c r as it was conducted before me were whether lhc Club was <1n <'.lllploycr who employed less than 15 cmployccs and th erefore fell outside the scope of Cl.23C of the Clulis Etc . Emp loyees · Awa rd -- South -1-.ast Queensla nd and whe ther in any event there was a redund a1Ky . Wi th rc~pcc:l LO the fi rst iss ue. one nwller may be qu i ck ly put as1 J t . ll wa, su bmiued t hm Mr Pa rkins on shou ld be counted as an employee. Ho" cver. the evidence is qui te 1,h;:ar thm he was not cmplo)"t!d by the Club but " ·as 1hc c rn pioyc-: of a c0 111p a 11 y which had been engaged b;, the Cl ub to try Lo tum its fortunes around. The other aspect or the first issue is whc:th cr casuul employees can be cou nted. ;,.1r Herbert su bm illctl tha1 because of the nature or c asual cmp lo;, mcn t t hey ,hould nut be . I le supported h is argu ment b) re ference Lo ~ta 1cme nt:; in Jec i~ions of 1h is Cnu rt in Mi tc h~ Totalis,1 tor 1\ ~h 11 i11istra tion ll \i11rd of Owcns lancj ( !'P'J) 100 QGIG 926 and Ewa ld v Gabinka Pt ,· Limited (1982) 109 ()GIG 39 and of Ols son .I. in Leg Tra p llotel v Rebbeck 46 SAIR 739. 752 and tiQWC :L]i uu St reet Private Hospital ( 19 8 7) 25 IR 356 as to the nature of casual employ ment. The cffoc1 or these decisions is !hat ca:; u:il e 111 ploy m1: nt do~s no t entitk the employee 10 further engagement b) the employer an d the employee is 1101 bttunu to acce pt fu11he r engag,,mcnts if offered. Each pe r iod or casual cm p l< >;, inrnl tc rminmes \\h~n the par1i c:u lar se1 of hours of engagement have tin ish~d . Mr Herbert s ubm iu ed 1ha t when con ,id ering whether the C!ub employed fe wer th,111 15 <.:mp !nyci.! S. casual employees could n,n be t ak.:n in to ~ccou nt at al l. T he j udicial statements a~ to the nature or c asu al employment may be accepted readi ly . llo \,c\·cr. the qu c.--, 1011 p()~ed by the pro vi sion in the A1, ard whi ch allhoush inclcga nt !} tlralled. h,1s wide cu rrency, is whether 2t t he rckva11l time there .ir.; i 5 or more employees. It is 11 01 nc<.:c ,s ai , in thi:. ca se to 1\holl} rcsoh e 1he di 11iCL1lt ies inherent in t ll at ,.; c,ncepl. : 11 t:iis ca, c the evidence is that al any moment in time. there woukl !:, c tc,, cr than 15 employees . 2 1 Ocrober, 1994] QUEENSLAND GOVERNMENT IN DUSTRIAL GAZET TE However. mate ri al was produced from wages records to de111onstra1c that in almost all weekly periods around the rde vam time mo re than 15 people wo rk for at least some period of ti me at the Clu b. There is evidence th a t, includ in g Mr Casey, 6 were pcm1a nent employees. I am satisfied that Mr He rbe r t's proposit ion is too narrnw. I am satisfied that it is essent ia ll y a question of fact whether t he Club had • Jess than 15 employees··. The more di fli cu lt question is to detenn ine th is in a case where some employees arc engaged on a casual basis and fo r li mited periods du ri ng any particular pe ri od of li me. T he matter is made more acute in this case by reason of the fac t thai in the week of when Mr Casey retu rn ed fro m h is hol idays and was tol d of the dec is ion. the best view of th e evidence is 1.hat a total of 15 pt:ople incl uding Mr Casey·s wife worked at the ciu h at var ious times during the wee k. l:3y contrast_ in the previous week whe n Mr Casey was on leave only 14 persons received em ployment al th e club, even if Mr Casey is included on the basis that he was 1hcn a perm anent em ployee on leave. There is no cl ear ev idence as to precisely how many pe rsons worked on any parti cu lar day in the relevant pe r io d. There is certai nl y no evidence as to the num ber of persons employed on the day when Mr Casey had h is status c ha nged or. assuming !here was a redundancy. on any ot he r day wh ich may be fixed upon as the da y of re du n da n cy . There is evidence. w hi ch was not re fu tc: d. tha1 the 1110s1 staff ever employed on any one day during Mr Parkinson ·s lime was 13. on Crosby Cup da y. I think. on the facts, that 1his is the cr itical evi den ce . It is not approp ri ate in this ca se in view of this evidence to aggregate a ll casuals, even those wh o worked on ly a few hours during the week. fo r the purpose of determi ni ng wh at is esse ntial ly a fac tual ques1ion v1he th er t he employer had "'less than 15 employccs". ln th e result. I am sa ti sfied th at th e conclusion that th~ exemption was 1101 ap pl icable to t he appe ll an1 cannot be sustained. The appeal is allowed. The order of th e Ind us tr ia l Mag istrale is set asi de. I make no order as Lo costs. Da ted this tenth d ay of October. 1994 . K.G .W. MAC KENZIE. Pres id ent Appearances:- Mr A. llcrhcn (instructed by Purvis Duncan} for the Bro th ers Uriion Club (Brisbane) Li111i ted . Mr B. Dunphy (i n~truc ted by the Cro,~11 So li citor) for Neil John Hoey. Opcra1ivc Da te: N/A Ju dgement - Brothers Un ion Cl ub (Ilrisbane) and N.J . IJoey Released: I O October 1994 835 -- 1 of 1 --