Cox v Wax Artex Pty Ltd [2004] QIRC 70 (2004) 175 QGIG 1294

1294 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 April, 2004 ######################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – application for arrears of wages David Francis Cox AND Wax Artex Pty Ltd (No. W102 of 2003) COMMISSIONER BROWN 7 April 2004 DECISION This matter involves an application by David Francis Cox of the Department of Industrial Relations, Southport, (the applicant) pursuant to s. 278 of the Industrial Relations Act 1999 (the Act) seeking an order that Wax Artex Pty Ltd (the respondent) pay $4,835.82 to Zhanna Swain to compensate for wages allegedly owing for work performed. The applicant represented himself and called evidence from Clement James Williams, an inspector of the Department of Industrial Relations, Southport and Zhanna Swain. The respondent was represented by Aneta Zielinski, a Director of the respondent, who gave evidence herself along with: Oksana Zebracki Former employee of the respondent Wiktor Zebracki Spouse of Oksana Halina Wakiec Employee of the respondent Mary Pagiela Acquaintance of the respondent Robyn Mellors Co-worker of Halina at “My Bakery”. -- 1 of 5 -- 23 April, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1295 The applicant submitted that Zhanna Swain was employed by the respondent from 24 September 2001 to 17 November 2001 pursuant to the Retail Industry Interim Award – State (the Award) as a casual shop assistant and was paid on a commission basis by the respondent. From 22 October 2001, according to the applicant, Zhanna Swain’s duties were to collect stock from the respondent’s factory, transfer the stock to the Kiosk leased and operated by the respondent in the Paradise Centre, Surfers Paradise, set up the display, sell the product (candles), close the Kiosk, take the display down and take the stock home that could not be stored in the limited storage space in the Kiosk. The applicant stated that because of a belief in the mind of the respondent Zhanna Swain was a sub-contractor, the respondent kept no record of hours worked. In evidence witness Williams stated (Ex. 3&4) that he had, on behalf of Zhanna Swain, conducted interviews with the respondent and sought unsuccessfully to resolve Zhanna Swain’s claim by negotiation. Williams stated that the respondent had claimed during an interview on 22 July 2002 to have engaged Zhanna Swain as a contractor on commission. Williams claimed that Anita Zielinski stated that she paid Zhanna Swain for her work at the Kiosk as contractor, in cash, in accordance with a scale of commissions. Williams stated that Anita Zielinski contested the hours that Zhanna Swain alleged to have worked. Williams stated that on 11 September 2002 he spoke with Oksana Zebracki who confirmed that from late October 2001 Zhanna Swain worked in the Kiosk herself and prior to that had assisted Zebracki to open and close. Zebracki also said that Zhanna Swain also helped out in the Kiosk in return for Zebracki paying Zhanna Swain 50% of Zebracki’s commission. According to Williams he used the Award and contemporaneous written records of Zhanna Swain to compile the claim. Williams stated that despite his requests and the discovery direction of the Commission, he had not been provided with the “Record Book” from which Zielinski compiled the document entitled “Summary of Zhanna’s (sic) Swains Work for Wax Artex from my Record Book”. Provide to the Commission with witness statements. Zhanna Swain (Ex. 5-14) stated that she was an employee of the respondent and subject to directions of the respondent with respect to her duties and working hours at material times. Zhanna Swain contended that she did not contribute to the payment of the lease of the Kiosk nor did she invoice the respondent for payment. Zhanna Swain claimed that there was no offer to provide her husband’s ABN to the respondent. Zhanna Swain stated that she had not been shown nor had she accepted any contract providing payment via commission. She claimed to be an employee of the respondent at all material times despite claims by Zebracki that Zebracki paid her for work in the Kiosk prior to 22 October 2001 by giving her (Swain) 50% of Zebracki’s commission. Zhanna Swain stated that between 24 September and 20 October 2001 she worked a total of about 3 hours per day opening and closing the Kiosk. She stated that Zebraski had never, until after her employment ceased, discussed the issue of a contract. Zhanna Swain claimed that at the instruction of the respondent her starting times varied between 7.30 a.m. and 8.30 a.m. (at the Factory) and finished, for a half day shift at 3 to 3.30 p.m. and for a full day between 7 and 9.30 p.m. She claimed to have worked Monday to Sunday inclusive with some Sundays off. According to Zhanna Swain, the instructions of the respondent were that the Kiosk be open between 9 a.m. and 9 p.m. each day and that either Zhanna Swain or Halina Wakiec be present at all times. Zhanna Swain stated that on the half days, when Wakiec was involved, the respondent paid her 60% of the daily commission to compensate for her earlier starting time and the requirement that she use her vehicle to pick up stock. Zhana Swain claimed to have kept records of starting and ceasing times as well as commission earned although the respondent, she stated, had retained the commission book which recorded days and shift lengths worked. Zhanna Swain claimed to have been instructed to work overtime. She claimed that no claim was made at the time because of her uncertainty as to her rights. Zhanna Swain claimed to have kept records of starting and ceasing times because of a belief that she should have been paid more and may have needed the information to approach the respondent. Zhanna Swain said that it was a requirement that the Kiosk be open at 9.00 a.m. and the stock collection and set up occurred prior to this time. On occasions stock was collected from Anna Czop and not Zielinski. Zhanana Swain denied selling Grace cosmetics whilst at the Kiosk and further denied the allegations of Wakiec that she attempted to intimidate Wakiec at her workplace. Aneta Zielinski (Ex. 15) claimed that prior to 22 October 2001 Zhanna Swain did not work for the respondent. She stated at paragraph 10: “I gave Zhanna a stock-take list to get to know with our products and prices and we agreed about days and hours she needs to work there (which I had agreed with Oksana before).”. Aneta Zielinski stated that she paid Zhanna Swain on commission on a weekly basis. Aneta Zielinski stated that following a day where no sales were recorded (13 November 2001) she determined to terminate Zhanna Swain. Zielinski stated “After this incident I decided to terminate workmanship (sic) with Zhanna”. Regarding lunch breaks Zielinski stated: “24. Zhanna Swain was permitted to leave the stall when needed to go to the toilet or buy her lunch but I know that she was bringing with her own coffee and sandwiches which she consumed at the beck of the stall. I was seeing her several times during my visits to our stall sitting with cup of coffee at the back.”. -- 2 of 5 -- 1296 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 April, 2004 In cross-examination Zielinski conceded the existence of a book containing work records of factory employees and further conceded that she chose not to call as witnesses, those in the factory who could have supported her contention that Zhanna Swain did not start at the factory at 7.30 a.m. Zielinski accepted that Exhibit 8 (envelopes used as pay packets for Zhanna Swain) bore her handwriting except for 2. Zielinski disputed the hours claimed to have been worked by Zhanna Swain. Wiktor Zebracki in his statement (Ex. 16) stated that Zhanna Swain and her husband, George, were present at the initial set-up of the Kiosk but did very little. He conceded that he disliked Zhanna Swain. Oksana Zebracki stated (Ex. 17) that she worked for the respondent pursuant to a contract providing remuneration by way of commission. She claimed that the involvement of Zhanna Swain at the Kiosk on 24 September 2001 was voluntary and that she had requested Zhanna Swain to assist her on the first day trading, 25 September 2001 and stated: “Aneta and Marek also came to check how everything looks and works. They decided that it will be take too much time for just one person to open and close the stall. They asked around if someone is interested in coming in the morning and in the evening helping in this job. Opening and closing for two people took always between 30-45 minutes.” (Ex. 17, paragraph 10) and further: “Zhanna Swain agreed to do this job.”. (Ex. 17, paragraph 11) Oksana Zebracki stated that outside the opening and closing functions, the presence of Zhanna Swain at the Kiosk was because of their friendship and that she paid Zhanna Swain half of her commission. Oksana Zebraski estimated the time taken to travel between the factory and the Kiosk was between 20 and 25 minutes. Halina Wakiec (Ex. 18 & 19) stated that she had worked with Zhanna Swain, was never late for work, her normal starting time was 2.00 p.m. and that when Zhanna Swain stayed after 2.00 p.m. it was usually in connection with the promotion of Grace Cosmetics. She claimed that Zhanna Swain had abused and tried to scare her because of her statements regarding working hours to Zielinski. The evidence of Robyn Mellors (Ex. 20) and Mary Pagiela (Ex. 21) was of little assistance. In final submissions the applicant submitted that the disputed issue was that of hours and pointed out that the respondent took no issue with the stated duties or the claim that Zhanna Swain did not purchase any stock for resale nor did she contribute to the payment of the lease on the Kiosk. The applicant stated that in the absence of any concrete evidence from the respondent that the material presented by the applicant Ex. 11, notes of times worked and pay envelopes Ex. 8, should be accepted as reliable. The applicant reminded the Commission that the respondent had the opportunity to call evidence from factory employees to refute the claims of Zhanna Swain that she regularly started at 7.30 a.m. and did not. The applicant stated that the Award was the appropriate Award and the relevant provisions were: Clause 3.2(i) Definition of Shop Assistant Clause 4.1 Providing for 38 ordinary hours Clause 4.2.1 Providing for maximum 8 hour days Clause 3.4(5) Casual loading (22% at the time) The applicant rejected the contention of the respondent that Zhanna Swain worked voluntary for the first month in that she was paid by the respondent the sum of $725.00. The respondent submitted that there was a “verbal agreement” that Zhanna Swain work for the respondent from 22 October 2001 and prior to this the respondent paid Zhanna Swain for assisting to open and close the Koisk. The respondent stated that this took about one and a-half hours per day. The respondent believed that a contract between Zhanna Swain and the respondent existed that was lawful and fair and further that Zhanna Swain did not complain during her time with the respondent. The respondent stated that Oksana Zebracki and Halina Wekiec’s evidence supported the respondent’s claim that the hours claimed by Zhanna Swain were incorrect. The respondent claimed that Zhanna Swain’s records were messy and that the trading times for the Kiosk should have been: Monday 9.00 a.m. to 7.30 p.m. Tuesday 9.00 a.m. to 8.30 p.m. Wednesday 9.00 a.m. to 7.30 p.m. Thursday 9.00 a.m. to 9.00 p.m. Friday 9.00 a.m. to 9.00 p.m. Saturday 9.00 a.m. to 6.00 p.m. Sunday 9.00 a.m. to 6.00 p.m. The respondent also claimed that these times were compatible with the opening and closing times of other businesses in the Centre. The respondent stated that the actions of Zhanna Swain after her departure from the respondent were both intimidatory and vengeful. The respondent’s contention that Zhanna Swain was a sub-contractor is rejected. -- 3 of 5 -- 23 April, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1297 Considering the respondent’s evidence and submissions alone, there is enough to conclude that Zhanna Swain was an employee. The true nature of the relationship was revealed by the respondent when Aneta Zielinski stated in her evidence (Ex. 15, paragraph 12) “I was paying weekly wages for helping in closing and opening stall what, what was taking mostly 1.5 hours a day.”. Again at paragraph 10 as previously set out where hours of work were agreed. Further at paragraph 15 there is evidence relating to the termination of Zhanna Swain by Aneta Zielinski subsequent to Aneta Zielinski becoming dissatisfied with her performance. I have also taken into consideration the applicant’s submissions that Zhanna Swain provided nothing in the way of stock or equipment. There was no evidence of a signed contract of service and whether or not Zhanna Swain was aware that Oksana Zebracki was working in accordance with some sort of contract is irrelevant. I find that Zhanna Swain was an employee of the respondent. I have also considered the nature of the work and I accept the submissions of the applicant with respect to the work performed and find that the Award as cited is appropriate. Regarding the calculation of the alleged under payment there is significant difference between the versions of events put by the applicant and the respondent. With respect to the applicant’s submissions that Zhanna Swain was not permitted a meal break, on the evidence (Ex. 15) it was apparent that Zhanna Swain was able to leave the Kiosk to use toilets or buy lunch and return immediately. This does not constitute a meal break. No penalties have been claimed by the applicant regarding missed meal breaks, however, no deduction of time has been made either. In the circumstances I believe this to be a fair approach i.e. the time claimed for is all time between starting and finishing. There was considerable argument over starting and ceasing times. With respect to starting times as mentioned, the respondent provided as mentioned earlier a “Summary of Zhanna Swain’s work for Wax Artex from my record book”. The document from which it was alleged these figures were compiled was never disclosed to the applicant nor produced for inspection by the Commission and it was common ground that Zhanna Swain attended the factory to collect stock prior to driving to the Kiosk and setting it up in order to commence trading. Therefore if the Kiosk opening times stipulated by Aneta Zielinski in submissions (9.00 a.m.) were to be adhered to it is obvious that Zhanna Swain would have to have been at the factory considerably earlier than 9.00 a.m, especially bearing in mind the time for collecting stock, the travelling time from the factory and the set up time needed to prepare for trade once the employee arrives at the Kiosk. I do not accept that the starting time was 9.00 a.m. and in the absence of any compelling evidence to the contrary and for the above reasons I accept the starting times claimed by Zhanna Swain and used by Williams in calculating the claim (with the exception of Monday 24 September 2001 referred to later). Regarding the days worked, the contention of the respondent was that the initial involvement of Zhanna Swain in the set up of the Kiosk on 24 September 2001 was voluntary. This was supported in evidence by Oksana and Wiktor Zebracki and the evidence of Halina Wakiec recalled Zhanna Swain and her husband being present and doing very little. The evidence of Zhanna Swain and the claim by the applicant was that this was work performed at the direction of the respondent pursuant to an earlier discussion. The pay envelopes (Ex. 8) submitted by the applicant bear the handwriting of Aneta Zielinski with the exception of the first 2 weeks’ envelopes upon which some other person’s writing appears. With respect to the date of commencement Zhanna Swain says: “It was all very confusing when I started working. I know that Oksana Zebracki is claiming that she paid me out of her commissions and Aneta Zielinski is claiming that Oksana employed me before 22 October 2001.” (Ex. 5, paragraph 26) The weight of evidence supports the contention that the initial association between Zhanna Swain and the respondent was through the invitation of Oksana Zebracki and the work performed on the evening of 24 September 2001and until 2.00 a.m. on 25 September 2001, voluntary. The claim so far as it relates to the evening of Monday 24 September 2001 and Tuesday 25 September 2001 until 2 a.m. is rejected. I accept the times claimed for opening and closing by the applicant for the week ending 29 September 2001. Considering the evidence, I find that the work performed during that week at the invitation of Oksana Zebracki was voluntary (save for the money given to Zhanna Swain by Oksana Zebracki). The respondent conceded in submissions that Zhanna Swain was engaged for opening and closing prior to 22 October 2001. To summarise, I accept the claims for the week ending 29 September 2001 only to the extent of 3 hours per day from 25 September 2001. The amounts claimed for the weeks ending 6, 13. and 20 October 2001 relate only to opening time and closing and reflect the 3 hour minimum engagement in the Award. The claims are accepted. The starting times claimed by the applicant for the period 22 October to 17 November 2001 have been accepted by the Commission. The absence of a meal break has also been accepted. The ceasing times must now be examined. On the evidence there were two modes of ceasing. Firstly, by being relieved by another employee Wakiec on the “short days” and secondly, by working through until the time the Kiosk closed and stock appropriately stored. -- 4 of 5 -- 1298 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 April, 2004 The respondent’s submissions were that the Kiosk should be open for the times stated previously. The document “Summary of Zhanna Swain’s work for Wax Artex from my Record Book” purports to cover the period in question. Reservations were expressed, earlier in this decision, by the Commission regarding the starting times in this document. I have similar reservations about the ceasing times on days where Zhanna Swain worked until closing time. The evidence was that at closing time certain functions had to be performed after the cessation of selling to close up, mainly because of the cramped nature of the Kiosk. Stock displays had to be dismantled and packed within the Kiosk and stock unable to be stored in the Kiosk for reason of space was packed into the vehicle of Zhanna Swain. Stock orders had to be finalised. Therefore if the closing times referred to in submissions by the respondent were correct (and they are contested), Zhanna Swain would have consistently finished after the times suggested in the “Summary” document of the respondent. I do not accept the “Summary” as an accurate account of finishing times on days where Zhanna Swain worked until closing times. The evidence of Mary Pagiela (Ex. 21) with respect to the closing time of the Kiosk may well be true, however, her lack of accurate recollection of dates or knowledge of which employee was on duty cause the Commission to place no weight on her evidence. I also prefer times in the contemporaneous notes of Zhanna Swain to the evidence of Oksana Zebracki relating to the occasions upon which she worked until closing time. The submissions of the applicant are that in the absence of reliable evidence to the alternative, the Commission should accept the contemporaneous notes of Zhanna Swain as evidence of working times. I accept that submission and grant the claim for payment on late finishing days in accordance with the claim. Regarding the ceasing times claimed on days where Halina Wakiec relieved Zhanna Swain (the short days), the evidence is again conflicting. Halina Wakiec claimed to have on each and every occasion been at the Kiosk to relieve Zhanna Swain at the allotted time of 2.00 pm. She conceded that Zhanna Swain stayed longer but claimed she was talking to people about Grace Cosmetic products (a private interest), a claim denied by Zhanna Swain. Zhanna Swain contended that the general ill health of Halina Wakiec caused her to remain after Halina Wakiec’s arrival and to continue to work until Halina Wakeic was ready to start and cited the sales recorded in the books (Ex. 11) and in particular where candle sales are recorded in the handwriting of Zhanna Swain after (later than) sales recorded by Halina Wakiec. An inspection of the book revealed that this had, in fact, happened. I have generally accepted the contemporaneous notes prepared by Zhanna Swain in preference to the recollections of others, however, on the subject of finishing times on short days it appears, from the evidence, that Zhanna Swain had no instruction from the respondent to stay after the arrival of Halina Wakiec. On her own evidence she chose to stay. She did not claim for the extra time from the respondent at the time and the respondent had no opportunity to issue instructions with respect to this occurrence. Therefore, consistent with my acceptance of the starting times generally and the ceasing times on full days claimed by Zhanna Swain, I accept that the finishing times on short days claimed may be accurate. However, it was unauthorised. I am prepared to accept that there would have been a hand-over period, however, this would not, in the view of the Commission, have exceeded 30 minutes. Therefore, the claim as it relates to short days is accepted only to 2.30 p.m. The respondent, whilst disputing the number of hours that the applicant claimed that Zhanna Swain worked, did not dispute the hourly rate used by the applicant in calculating the claim nor challenge the basis of the claim regarding the application of penalty rates to certain days and certain hours. Based on a re-calculation taking account of the findings in this decision, the applicant is to submit a revised draft order to the respondent and the Commission within 7 days of release of this decision. The respondent has 7 days within which to take issue with the calculations by notifying the Commission in writing of their concerns regarding the calculations only. Should such notice be received, the Commission will re-convene the hearing to allow for submissions. To assist the parties, a summary of this decision is that week 1 ending 29 September 2001 should be calculated to provide only for the 3 hours per day from Tuesday to Saturday inclusive less monies already paid by the respondent. Weeks 2, 3 and 4 (ending 20 October 2001) remain as claimed. Weeks 5, 6, 7 and 8 (ending 17 November 201) be re-calculated to provide for shifts worked on 23, 25, 26 and 29 October and 1, 2, 5, 8, 9, 12, 15 and 16 November 2001 to be paid as though worked concluded at 2.30 p.m. Appearances: D. K. BROWN, Commissioner. Hearing Details: Mr D. F. Cox for the Department of Industrial Relations. Ms A. Zielinski for Wax Artex Pty Ltd. Released: 8 April 2004 -- 5 of 5 --