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[2007] FCA 835
Federal Court of Australia
2007-05-31
Spender J
Original judgment source is linked above.
The applicant was summarily dismissed by the respondent on 12 August 1999 for what was described as "a wilful breach of a fundamental term of your contract of employment".
The issues involved insofar as the above expressed reason for termination, relate to allegations made by the respondent that the applicant had acted improperly in concert with another person, namely a Ms Joan Holness (Holness) in defrauding QFCL of large sums of money. In that regard Holness had been the QFCL Brisbane Airport Flight Catering Centre Pay Officer in the two years leading up to her termination from such position in June of 1999.
This impropriety was described as a process of manipulation of the QFCL pay system applied by Holness which led to the applicant allegedly receiving overpayments of wages of approximately $72.000.00 which QFCL alleged, the applicant was not entitled to receive based upon the actual hours the applicant was rostered for and/or did actually work.
The evidence led by QFCL was ostensibly to show that the applicant was not entitled to receive such $72.000.00 and had not returned such moneys to it.
Such overpayments it is alleged were paid either directly into the applicant's personal Commonwealth Bank account or by way of payments deducted from various improper claims for wage entitlements which in turn were paid directly to financial institutions in relation to personal loans which were in the applicant's name.
The applicant's defence to such allegations was that whilst she accepted that she received moneys into her bank account over and above her entitlements, such moneys were not representative of overpayments of wages which she was not entitled to receive nor did she benefit from the receipt of such moneys.
In that regard the moneys referred to by QFCL represented either the wages or other moneys of Holness which she had agreed to have deposited into her bank account by arrangement with such person.
In relation to payments to financial institutions relating to personal loans in the name of the applicant allegedly made from improper wage claims recorded in her name, the applicant denied any knowledge of such improper wage claims and their use for payments made in that connection. The applicant submitted that to her knowledge those moneys paid in relation to personal loans were paid by Holness from the moneys she had received from Holness into her personal Commonwealth Bank account and had returned to Holness at her request.
The reasons advanced for such agreement allegedly related to the receipt of the wages of Holenss into the applicant's bank account in view of her acceptance of an appeal to her for assistance. This assistance was allegedly sought because of a potential life or death situation involving the granddaughter of Holness.
Such measure was allegedly required to deny the daugher of Holness the opportunity to access any bank accounts Holness may have in view of her daughter's addiction to illegal substances. Further, in addition to this, there were alleged threats against the granddaughter of Holness for debts incurred by her daughter with drug suppliers.
Therefore, the method Holness suggested to the applicant to ensure such denial was to not pay the wages of Holness into her own bank account for fear of her daughter gaining access to this but rather, into the bank account of the applicant for safekeeping.
The applicant allegedly agreed to receive the wages of Holness into her personal Commonwealth Bank account and, on request, to draw out such moneys as required by Holness to make the same available to her.
Shortly before the applicant was suspended she become aware that Holness had been suspended by QFCL. This caused the applicant concern and led her to seek the assistance of QFCL's Brisbane Airport Catering Manager (a Mr D. Edgeworth). Subsequently, a meeting was attended by Edgeworth at the applicant's house on 14 June 1999.
This assistance was sought in view of personal loans which the applicant claims had been taken out in her name by Holness and were, to her knowledge, allegedly being repaid by Holness. It is the applicant's claim that she was concerned as to how the loans would be repaid.
In view of the uncertainty the applicant had about the employment future of Holness with QFCL and in view of the applicant's inability to make the necessary personal loan repayments, the applicant revealed her involvement with Holness, as raised earlier herein.
The extent of the applicant's involvement with these personal loans was caused by the applicant allegedly endeavouring to assist Holness to the extent that Holness had taken out various loans from financial institutions at various times to the sum of $35,000.00 in the applicant's name which Holness was to meet from money she had placed in the applicant's bank account.
The actual methods used by Holness in making the personal loan repayments by way of improper wage claims in the applicant's name were allegedly unknown to the applicant. Such procedures did however cause the applicant to experience difficulties with the Australian Taxation Office (ATO). This situation was caused by the repayments for the personal loans being made directly to the lending institution by way of the above referred to wage claims, allegedly unbeknown to the applicant, not by way of moneys which the applicant says she had returned to Holness.
The method of repayment of the loans was facilitated by moneys credited to the applicant for a variety of allowances and penalty payments as well as multiple overtime claims. Such payments were recorded as payments made to the applicant by what have been described as No 2 Payslips being different to the usual payslips associated with the normal roster worked by the applicant. 36 The Manager of Human Resources of Qantas Catering, Mr R. Harden, wrote to Mrs Barrick on 21 June 1999, seeking answers to the allegations he there set out:
THE CLAIMS UNDER THE TRADE PRACTICES ACT 67 It is necessary, in the light of the foregoing, to have particular regard to what Mrs Barrick alleges are her causes of action based on the provisions of the TP Act. 68 Section 52 of the TP Act relevantly provides: 52 Misleading or deceptive conduct (1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. 69 Section 51AA of the TP Act provides: 51AA Unconscionable conduct within the meaning of the unwritten law of the States and Territories (1) A corporation must not, in trade or commerce, engage in conduct that is unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories. (2) This section does not apply to conduct that is prohibited by section 51AB or 51AC. 70 Section 82 of the TP Act provides that a party may bring an action for loss or damage caused by conduct of another done in contravention of, inter alia, Part V of the Act. 71 Under the heading, "Claims for Damages Declaratory and Injunctive Relief" in the Further Amended Statement of Claim, Mrs Barrick alleges: 12. [Qantas Catering] … represented to the Applicant and others as hereunder particularised that: (i) the misconduct allegations were true and correct and further and alternatively; (ii) the Qantas Financial analysis was true and correct and; (ii) or alternatively that the misconduct allegations were founded upon and or constituted proper probative and relevant evidence sufficient to found a reasonable hypothesis of fraudulent conduct on the part of the Applicant during the course of her employment and further and alternatively; (iii) that she had fruadulently misappropriated the sum of $72,343 and; (iv) was therefore liable to be summarily dismissed from her employer on the grounds of serious misconduct. THE REPRESENTATIONS 13. The representations were made and published orally in writing and by conduct to:- (i) the Applicant to Mr Barrick and to her legal and medical advisers; (ii) to the Queensland Police in connection with the police charges, preferred against the Applicant; (iii) to the Queensland Director of Public Prosecutions for the purpose of the prosecution of the police charges; (iv) to the Industrial Relations Commission in the AIRC proceedings; (v) to the Magistrates Court at Brisbane in the Workers' Compensation proceedings and committal proceedings. THE FURTHER REPRESENTATIONS 14. Following the dismissal of the police charges against the Applicant (which wholly or substantially depended on the Qantas Financial Analysis) on 6 August 2001 the Respondent did not withdraw retract or otherwise attempt to correct the representations but continued to assert the substance and effect of the misconduct allegations and the Qantas Financial Analysis and in particular represented to the staff of the Queensland Director of Prosecutions that the misconduct allegations and the Qantas financial analysis were substantially true and could be supported by records in the First Respondent's custody possession or power and the First Respondent was able to provide such records and thereby intended to continue with the prosecution of the aforesaid fraud charges against the Applicant ("the further representation"). 15. The aforesaid further representation was made orally by Mr Phillip McCarthy of the Queensland Director of Public Prosecutions Office in telephone conversations with the Applicant's solicitor in August/September 2001 and the Applicant says it was a wholly predictable consequence of the further representation that such representation would be conveyed to the Applicant and her solicitors with the intention of effecting the conduct by the Applicant of further relevant proceedings then pending before the Full Bench of the Industrial Relations Commission. … 20. The evidence which Ms Hales gave as referred in paragraph 17 was an integral part of and or alternatively constituted an attempt on the part of the Respondents and the other relevant staff of the First Respondent to perpetrate reinforce or give credence to the representations and further representations. 21. On a date subsequent to the dismissal of the Applicant's appeal to the Full Bench of the Industrial Relations Commission in February 2002 the Applicant received information through Mrs Barrick's approaches to the staff of the First Respondent (to obtain copies of the workplace source records for the purpose of proceedings for the recovery of wages and superannuation unpaid) that the workplace source records had been destroyed and the Respondent's staff falsely alleged that the Applicant had been responsible for the destruction of such records. 22. Further on a later date the Applicant received information from a source which she believes to be reliable that Mr Edgeworth was responsible for giving instructions which caused the workplace source records to be destroyed on a date or dates which the Applicant is unable to particularise until after discovery. 72 Under the heading, "The representations by silence" Mrs Barrick pleaded: The representations by silence 23. The First and Second Respondent [Qantas Catering and Mr Edgeworth] and the other relevant staff of the Respondent (i.e. staff concerned with the Respondent's promulgation and reliance on the misconduct allegations and Qantas Financial Analysis) owed a duty to the Applicant (by virtue of the express provisions of the W.R. Act the Award and Certified Agreement by virtue of the rules of natural justice and in keeping with equity and good conscience) to keep and maintain proper and accurate wage and other records relevant to a determination of the Applicant's proper legal rights entitlements (wages superannuation and otherwise) with respect to her employment and the continuation of it and to comply with any reasonable request from time to time or alternatively to produce proper records and reliable copies of any relevant records or other information relevant to a determination of the Applicant's rights and entitlements in the Court proceedings. 24. In consequence of the matters contained in paragraph 23 hereof: (i) all the acts and conduct of the Respondents in making the representations and further representations; (ii) and further and alternatively all the acts and conduct of the Respondents in each of the respective proceedings which were done executed or carried out by the First Respondent in purported reliance on the accuracy and reliability of the misconduct allegations and Qantas Financial analysis constituted representations by conduct to the effect that:- (i) the Applicant had been fully and properly paid all her proper wages and entitlements including superannuation and further and alternatively; (ii) that the Applicant was a fraudulent person whose employment was justly terminated and further alternatively; (ii) that the Applicant's conduct was persistent deliberate and properly deserving of the sanction of the criminal law (collectively called "the representations by silence"). 73 Paragraph 26 of the Further Amended Statement of Claim is in these terms: As the Applicant now knows or alternatively believes on reasonable grounds the further representations were false and or alternatively deceptive and misleading because:- (i) such of the workplace source records which were kept by the Respondents at the facility and from which it would have been possible to confirm or deny the accuracy of the misconduct allegations and the Qantas financial analysis (whether in whole or part) were destroyed by the Second Respondent and or alternatively by other staff of the Respondent at the direction or with the approval of the Second Respondent on a date or dates unknown to the Applicant until after proper discovery or the delivery of appropriate interrogatories; (ii) or further and alternatively because the workplace source records or such of them as were compiled on a daily basis throughout the period of the Applicant's employment as a simultaneous and accurate record of the information contained in the respective records were not retained and kept by the Respondent at the aforesaid facility or elsewhere at the respective dates of making the misconduct allegations and compiling the Qantas Financial Analysis or at any other time relevant to a proper determination of the Applicant's proper legal rights and entitlements were destroyed by the Respondents and alternatively other staff of the First Respondent who the Applicant is unable to name until after discovery or interrogatories at times prior to the formulation of the misconduct allegations and or prior to the compilation of the Qantas Financial Analysis and the Applicant was thereby denied the proper opportunity and prospect which could have existed but for such destruction to permit the Applicant and her solicitors to properly challenge contradict and or cast doubt on the misconduct allegations and financial analysis; (iii) or further and alternatively because the Respondents did not have in their custody possession or power at any time matreial to the issues in dispute in these proceedings any workplace source records or other records reasonably capable of sustaining or supporting the misconduct allegations or Qantas Financial Analysis in any material or substantial manner or degree. 74 Paragraph 26 of the Further Amended Statement of Claim, in its alternative pleading, reveals a fundamental misconception of the corporate behaviour prohibited by s 52 of the TP Act and of the cause of action conferred by s 82 of the TP Act in respect of a contravention of s 52: it is no part of the cause of action in the TP Act that the applicant believes on reasonable grounds that any representations were false, or alternatively, were deceptive or misleading. 75 Section 52 of the TP Act prohibits conduct by a corporation in trade or commerce that is misleading or deceptive or is likely to mislead or deceive. 76 The pleading of causation of loss or damage is set out in [28]: 28. (a) In consequence of:- (i) the making of the representations and further and alternatively; (ii) the making of the further representations and further and alternatively; (iii) the representations by silence and further and alternatively; (b) The Respondent's breaches of their statutory common law and equitable duties to the Applicant constituted by the making of the representations referred to in subparagraph (a) and further and alternatively; (c) The Respondent's breaches of the contract of employment constituted by the making of the representations referred to in subparagraph (a) and their breaches of statutory common law and equitable duties referred to in subparagraph (b); (d) And further and alternatively the Respondent's failure to take any or any proper steps as it was required to do by reason of its obligations under the Award and Workplace Regulations and or alternatively by reason of the manner in which the Respondent represented in the aforesaid letter of 12 August 1999, it proposed to treat the alleged overpayments and the available income tax refund allegedly arising therefrom to prove establish or justify the amounts which it demanded that the Applicant repay and the amount of any available income tax refund (but pleaded with a denial that the Respondent was entitled to make any such demand). the Applicant has suffered loss and damge to her health and in her legitimate rights and expectations. 77 Mrs Barrick pleads in [29] that: the Applicant says that the the representations made or suffered to be made by the Respondent as particularised in paragraph [28(a)] were made in trade and commerce or whilst she and the Respondent were engaged in trade or commerce … 78 The reasons for this assertion are to be found in 2(f) of the Further Amended Statement of Claim, namely: [The applicant] was engaged in trade and commerce with [Qantas Catering] as the Applicant's dealings with [Qantas Catering and Qantas Catering's] relevant dealings with the Applicant concerned and or related to transactions and negotations and other dealings relevant to or concerning the means by which the [Qantas Catering] earned its income from the operation of the [flight catering and administration facility at Brisbane Airport]. 79 And for the further reasons in [29] (i), (ii) and (iii): 29(i) The First Respondent is a wholly owned subsidiary of a prominent and high profile Australian company viz Qantas Airways Limited. (ii) Qantas Airways Limited in its advertising and promotion of its services represents itself as a compny in Australian trade and commerce which can be depended on to act by and provide services to its customers and patrons in accordance with traditional Australian values of mateship and fair play ("the quality representation"). (iii) The quality representation is relevant to and has been relied upon by the Applicant in her dealings with the Respondents in that as a result of the quality representation she and her husband were more willing to accept and thereby not to challenge or contradict the respective representations made by the Respondents and other staff of the Respondent and were thereby placed at a significant disadvantage in the conduct of their dealings with the Respondents including their dealings throughout the Court proceedings and otherwise. 80 It is immediately apparent that the contention by Qantas Catering that Mrs Barrick had engaged in misconduct (or any other of the pleaded representations) was not made in trade or commerce. 81 As the High Court said in Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 604: …the section was not intended to impose, by a side-wind, an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities. What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interest it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. 82 The qualification of damages is addressed in [35]: The Applicant is unable to better particularise the respective amounts of the damages claimed under the respective heads of damage until after discovery and or delivery of interrogatories but as presently advised claims the following amounts:- (i) Wages underpaid $34,064 gross as particularised in paragraph 10(e) hereof; (ii) Superannuation underpaid (a) voluntary termination - $158,000 approximately; (b) employers' termination - $48,000 approximately; (iii) loss of employment or the opportunity to properly defend against the misconduct allegations (see (iv), (v), (vi), (vii) and (viii) below); (iv) legal costs incurred which in whole or in part would not have been incurred except for the Respondent's conduct:- (a) AIRC proceedings $60,000 (b) Committal proceedings $20,000 (c) Industrial Magistrates Court proceedings $20,000 (d) Appeal to Full Bench Industrial Relations Commission $20,000 (e) Expenses to prepare proper income tax refunds and miscellaneous $ 6,000 (v) Damages to the Applicant's good name and reputation $100,000 (vi) Damages for emotional and psychiatric injury to self and husband, pain and suffering, loss of life expectancy, loss of enjoyment of life and the amenities of life $2,350,000 (vii) Costs of medical and other treatment and associated expenses $ 220,000 (viii) Loss of future income $ 564,000 nett (ix) Loss of future superannuation $250,000 (x) Discounted fares on flights (10% on full fares) $ 50,000 83 The claimed damages exceed $3.5 million. 84 The querulous and argumentative nature of the pleading also appears from [36]: The Applicant relies on the following matters circumstances and things relevant to the Applicant's entitlements to claim the damages particularised in the preceding paragraph:- (i) Each of the representations were made (including the representations by silence) by the Respondents when the Respondents and each of them and other relevant staff of the First Respondent knew or ought to have known that the representations were false and or substantially false unreliable inaccurate and misleading; (ii) Each of the representations were made (including the representations by silence) when the Respondents and other relevant staff of the Respondent knew that the Applicant and Mr Barrick had suffered were suffering and would in the future suffer loss and damge if no or no proper steps were taken to comply with their statutory and contractural obligations; (iii) In consequence of the matters contained in paragraphs (i) and (ii) hereof the Respondents and each of them must be taken to have intended to deliberately inflict all or part of the loss and damage suffered by the Applicant on the Applicant and in consequence thereof the Respondents conduct is fairly to be regarded as reckless irresponsible and uncaring; (iv) In consequence of the numerous opportunities which the Respondents could and should have availed themselves of during the proceedings and the Applicant's other dealings with the Respondents from 14 June 1999 to the date hereof and the Respondents continuing failures to perform their contractual statutory equitable and common law duties and or alternatively to correct the representations the Respondents must be taken to be bound in point of law to have made elections to deliberately perpetrate their respective aforesaid breaches and their aforesaid deceptive and misleading conduct and unconscionable conduct and in consequences thereof are bound in point of law to pay damages or alternatively equitable compensation for the loss and damage suffered by the Applicant in consequence thereof as mentioned in paragraph 35 hereof. 85 The expansively pleaded allegations, replete with multiple alternatives, some only of which I have set out above, are truly embarrassing. 86 However, at the conceptual level, the following observations may be made: imbedded in the multiplicity of allegations is an assertion by Mrs Barrick that she has a cause of action for damages under s 82 of the TP Act, for contraventions of s 52 and s 51AA of the TP Act, which is constituted by the legal expenses incurred by her in respect of her unsuccessful claim before Commissioner Hodder that the termination of her employment was harsh, unjust, or unreasonable. 87 Amongst other things, it is said that Qantas Catering represented to the AIRC that the misconduct allegations were true and correct. 88 As earlier indicated, it is impossible on the evidence to conclude that any such representations were representations made by Qantas Catering "in trade or commerce". Equally, it is impossible to conclude that the representations made to the persons referred to in [13] of the pleadings were made "in trade or commerce". 89 It was expressly found by Commissioner Hodder in respect of what are said to be the "misconduct allegations" that he was satisfied to the Briginshaw standard that Mrs Barrick was complicit in a fraudulent scheme by the pay-mistress to receive from Qantas Catering funds into her bank and loan accounts, which were greatly in excess of the funds to which she was entitled by way of wages and other entitlements. 90 The Full Bench of the AIRC refused leave to appeal from the decision of Commissioner Hodder that the termination of Mrs Barrick's employment by Qantas Catering was not harsh, unjust, or unreasonable because she was so complicit in the fraudulent scheme with Ms Holness. 91 In my judgment, there is no cause of action available to Mrs Barrick by which she can revisit that issue by alleging that what was contended for by Qantas Catering in resisting her application for unlawful termination or reinstatement was false and was a representation made in trade or commerce, which would enable her to recover as damages the legal costs expended by her in her unsuccessful unfair dismissal claim in the AIRC. 92 The position in respect of the claim for loss or damage under s 82, based on a contravention of s 52 of the TP Act, or alternatively, s 51AA, in respect of the legal expenses in connection with the charges preferred by Queensland Police against her for fraudulent misappropriation is, if it were possible, even clearer. 93 In essence, Mrs Barrick has pleaded that she has a cause of action against Qantas Catering for her legal costs in respect of her defending charges brought by the Queensland Police of criminal offences, and which were prosecuted by the Director of Public Prosecutions. 94 It is true that employees of Qantas Catering gave evidence relevant to the prosecution of those charges, but that evidence did not constitute the making of representations by Qantas Catering in trade or commerce to the Magistrates Court at Brisbane. The committal proceedings were dismissed by Magistrate Herlihy, because the Director of Public Prosecutions failed or declined to produce the extensive list of documents demanded by Mrs Barrick's solicitor. 95 Again, in my opinion, it is not competent in Mrs Barrick to have a cause of action arising out of the giving of evidence by employees of Qantas Catering in the course of those commital proceedings. 96 In my opinion, all of the causes of action based on the provisions of the Trade Practices Act are misconceived and doomed to fail.
CAUSES OF ACTION BASED ON THE WR ACT 97 The applicant in the Further Amended Statement of Claim alleges breaches of the Aircraft Industry (Qantas Airways Limited) Award 1980 of clauses 13(e), 13(f), 14(c)(iii) and 15(c). Those provisions appear in the "pre-simplified" Award. They were in force until 20 April 1999. 98 In addition, the Further Amended Statement of Claim alleges underpayment of wages in reliance upon s 178(6) of the WR Act; underpayment of contributions to a superannuation fund under s 178(6A) of the WR Act as well as what is said to be an obligation to pay superannuation entitlements on termination. 99 In respect of the causes of action having connection with the WR Act, Mrs Barrick seeks penalties for breach of Award or the Certified Agreement; orders to remedy the alleged underpayment of wages; and orders to remedy alleged underpayment of superannuation contributions. 100 In respect of these causes of action, Mr R. Buchanan QC, Senior Counsel for Qantas Catering, submitted: (1) The Applicant has failed to prove any breach of the Award or any of the Certified Agreements and there is, therefore, no basis for the imposition of penalties under section 178 of the WRA. (2) The Applicant has not proved that she was underpaid. The evidence is that the Applicant was in fact overpaid. Therefore, there is no entitlement to relief under s178(6) of the WRA. (3) The applicant has not identified, in the Award or any Certified Agreement, any obligation by the Respondent to make superannuation contributions on her behalf. Accordingly, there is no claim available alleging underpayment of superannuation contributions under section 178(6A) of the WRA. In any event she has not proved her superannuation contributions were underpaid. (4) The Applicant has not established that the Respondent was liable to make any payments to her on termination of her employment to discharge her interest in any superannuation fund. On the evidence such payments were the responsibility of Qantas Superannuation Limited, the trustee of the Qantas Airways Limited Staff Superannuation Plan (the "Superannuation Plan") which is not a party to the proceedings. (In any event none of the Award or Certified Agreements was the source of any obligation to make payments of superannuation benefits on termination of employment. Any alleged breach of award or certified agreement by anyone in this respect is misconceived. Furthermore, she has not established any failure to pay the correct amount.) 101 Before dealing with these causes of action in detail, it is convenient to consider the contention by Mrs Barrick that Qantas Catering was vicariously responsible for the conduct of Ms Holness, a contention which Qantas Catering denies. 102 In my judgment, Ms Holness' conduct in relation to the payments into Mrs Barrick's bank and loan accounts, and her wider conduct, including the manipulation of the Paris system, the wrongful alteration of the weekly pay run, the fabrication of number 2 payslips, and any withholding of payslips, if that occurred, is properly to be seen as part of her criminal conduct. 103 That conduct was not conduct "in the course of" her employment, but were actions independently performed for her own benefit and that of her co-conspirators. Her actions were not performed in the furtherance of the interests of Qantas Catering. Qantas Catering is not liable for her criminal acts. 104 In Deatons Proprietary Limited v Flew (1949) 79 CLR 370, the question was whether an assault upon a customer of a hotel by a barmaid in the employ of the publican company was committed in the course of her employment. Dixon J said at 380: In my opinion, however, it is clear that, upon the case made for the plaintiff, a finding could not be supported that the barmaid acted in the course of her employment so that the defendant company would be vicariously liable. For upon the plaintiff's case the assault was as unexplained as it was unprovoked and might have proceeded from private spite on the part of the barmaid or from some other cause quite unconnected with her occupation or employment. So far as the plaintiff's case went to show, nothing occurred which would in any way relate her action to the duties of her office or explain it by reference to anything incidental to what she was employed to do. 105 Williams J said at 386: The damage to the plaintiff was done by the glass. A barmaid who throws an empty glass at a customer is not doing an act of the class which she is employed to do. To throw the beer, much less the glass, at a customer is not a mode, although an improper mode, of serving a customer with beer, and even less a mode, although an improper mode, of answering his request for a glass of beer. 106 In New South Wales v Lepore (2003) 212 CLR 511, the majority of the High Court, (Gleeson CJ, Gummow, Kirby, Hayne, and Callinan JJ, with McHugh J dissenting) held that the liability of a school authority, under its non-delegable duty of care over the pupils, does not extend to intentional criminal conduct against a pupil by a teacher employed by the authority. 107 Gummow and Hayne JJ, after referring to the judgment of Sir Owen Dixon in Deatons said, at 591-592: First, vicarious liability may exist if the wrongful act is done in intended pursuit of the employer's interests or in intended performance of the contract of employment. Secondly, vicarious liability may be imposed where the wrongful act is done in ostensible pursuit of the employer's business or in the apparent execution of authority which the employer holds out the employee as having. What unites those elements is the identification of what the employee is actually employed to do or is held out by the employer as being employed to do. It is the identification of what the employee was actually employed to do and held out as being employed to do that is central to any inquiry about course of employment. 108 Mrs Barrick knew that Ms Holness was directing money to her bank account from Qantas Catering. She was sharing that money with Ms Holness. She knew that the monies being paid into her accounts by Qantas Catering were greatly in excess of the wages and other payments to which she was entitled. Her claim that she thought the monies included Ms Holness' pay is not true. Mrs Barrick cannot hold Qantas Catering liable for the arrangement she had with Ms Holness. 109 In her statement filed 10 February 2003, Mrs Barrick said at [169] that she had taken out a loan for Ms Holness in her own name in 1997. She said that, in relation to the money paid into her bank account, at [171]: … If there was money there, I wasn't sure it was mine or money that Holness had paid in. I never knew that the money was not hers. She said that it was and wanted to use my bank account to keep her money away from her daughter. I gave her back the money that she paid in but I resented the inconvenience and the fact that I never properly knew where I stood. 110 In her affidavit filed on 9 December 2003, Mrs Barrick said at [152]: When Holness placed money into my account she paid in more than was needed and asked for the excess to be returned to her. Her reason was that she could only bank all her net pay into one account. 111 It cannot be said that Ms Holness in making payments from Qantas Catering into Mrs Barrick's accounts, in amounts greater than the proper entitlement of Mrs Barrick to wages and allowances was acting within her ostensible authority from Qantas Catering.
BREACHES OF CLAUSE E OF THE AWARD 112 Until 20 April 1999, Clause 13(e) of the Award provided: On or prior to pay day the company shall state to each employee in writing the amount of wages to which he is entitled, the amount of deductions made, and the net amount being paid to him. 113 This, in my opinion, is the only alleged breach of Qantas Catering's obligations which requires detailed consideration. Qantas Catering submitted that the falsification of payslips by Ms Holness does not establish a breach of the Award. 114 I accept that the actions of Ms Holness in changing the pay roll, or in dishonestly issuing number 2 payslips to avoid detection of the fraudulent overpayment she was making to employees, including the applicant, are not to be taken as the actions of the respondent. 115 I accept also that the payslips accurately record the amounts credited to the applicant. In this regard, I am quite confident to accept the evidence of Elia Lytras, the forensic accountant from Vincents Chartered Accountants. The evidence of Mr Lytras, which I accept, is that almost the entirety of the amounts referred to in the payslips can be traced into the bank or loan accounts of Mrs Barrick. 116 However, notwithstanding the submissions of Mr Buchanan for Qantas Catering, in my opinion the issuing of falsified payslips, which accurately recorded the amounts which were credited to Mrs Barrick, does not satisfy the obligation imposed on Qantas Catering by cl 13(e) of the Award. In my opinion, those falsified payslips do not state in writing "the amount of wages to which [the employee] is entitled". There was, in my opinion, a breach of cl 13(e) by Qantas Catering, but it is not a breach on which Mrs Barrick can rely. 117 In the letter dated 21 June 1999, a week after the meeting on 14 June 1999, and before Mrs Barrick's termination of employment on 12 August 1999, written to James Strong, the Managing Director of Qantas Catering says: It has now become quite clear that the group certificates issued under a signature of servant of the company did not in any manner or form actually show a true record of wages earned by myself. The amounts shown were far in excess of any hours worked by myself in the above-mentioned years. Wages paid to me did not reflect those overpayments. What was reflected was the underpayment of tax paid by you on my behalf. 118 This indicates that, at least at the time of writing, she was aware that the amounts in her group certificate were "far in excess of any hours worked by her" . 119 Her statement that "the wages paid to me did not reflect those overpayments" is false. I am quite satisfied from the evidence of Elia Lytras that the payslips accurately record the amounts paid to the applicant or on her behalf. 120 I do not accept her denial of knowledge about the payments, her denial about the loans, and her denial that she didn't receive the monies in respect of the amounts in the payslips. 121 On the contrary, I am satisfied that she was aware that she was being overpaid, that the amount of those payments into her bank and loan accounts were not in their entirety amounts to which she was entitled, and that those payments were the result of an agreement, understanding, or arrangement with Ms Holness concerning the provision of monies from Qantas Catering to service the loans Mrs Barrick had taken out at the instigation of Ms Holness. 122 In short, in my judgment, Mrs Barrick cannot rely on any breach of cl 13(e) of the Award, which were brought about by the criminal conduct of Ms Holness, to which Mrs Barrick was privy. 123 As to the complaint of non-delivery of payslips, I do not accept Mrs Barrick's evidence that she was denied the delivery of payslips from March 1997. From that time, payslips were placed in pigeon holes in alphabetical order; previously, they had been left on a table for collection. 124 I accept the evidence of John Richard Morrison that Mrs Barrick did not complain at any union meeting of not receiving payslips, and he could not recall any complaint by her at any other time about this matter. He expressed the view in strong terms that any inability to get payslip information would have led to stop-work meetings at his instigation. 125 Ms Saggers also gave evidence that there was no complaint by Mrs Barrick in this regard. 126 Mrs Barrick asserts that her payslips were withheld by Ms Holness. If, contrary to my conclusion, the payslips were withheld by Ms Holness, it is apparent that, on Mrs Barrick's own account, that withholding occurred with her knowledge, and is not a breach by Qantas Catering of its obligations under cl 13(e) of the Award on which Mrs Barrick can rely.
BREACH OF THE AWARD ABOUT TIME AND WAGES RECORDS, CL 13(f) 127 Prior to 20 April 1999, cl 13(f) provided: The company shall keep a time and wages record showing the name of each employee and his occupation, the hours worked each day, and the wages and allowances paid each week. 128 In respect of that obligation, Qantas Catering kept a microfiche record of issued payslips which were generated by the Paris payroll system and retained centrally by Qantas, and the Exception Reports, which were generated by the Paradox system and retained by Qantas Catering. 129 I am satisfied, particularly by the evidence of Mr Lytras, that the microfiche record accurately recorded payments made to Mrs Barrick. 130 As to the hours worked, the primary record was the Exception Report, which was prepared by a Sous Chef in the production section on a daily basis using the Paradox system. 131 Mrs Barrick, in her statement filed 10 February 2003, said [82]: … I do verily believe that the Sous Chefs were very particular about the records they kept to record staff pay entitlements, including entitlements for overtime, even though in doing this, they did not rely on the Exception Reports themselves as the source records, but the other records which they kept. 132 I am satisfied that no breach of cl 13(f) has been established by Mrs Barrick. CLAUSE 14(c)(iii) 133 Clause 14(c)(iii) is concerned with the stand-down of employees for reasons of industrial action, by way of example, where no useful work was available. It has no application in the circumstances of the present case. 134 As will later appear, I do not, in any event, accept that any letter of resignation was in fact provided on the applicant's behalf on 6 August 1999. Even if it had been, it was not effective to constitute a resignation of Mrs Barrick's employment on that date, or indeed at any time prior to the termination of her employment for misconduct on 12 August 1999. CLAUSE 15(c) 135 Until 20 April 1999, cl 15(c) provided: An employee shall prove to the satisfaction of the company that he was unable on account of such illness or injury to attend for duty on the days for which sick leave is claimed. 136 The breach of this clause is said to arise from the failure by Qantas Catering to accept a medical certificate as sufficient to establish a valid claim to sick leave in the event that a Workers Compensation Claim of 26 June 1999 was refused. 137 This claim is misconceived, because in its terms the clause imposes an obligation on an employee and casts no obligation at all on Qantas Catering. Further, no occasion arose to consider whether sick leave should be granted because Mrs Barrick was suspended on full pay at the time. There is no basis on which any breach of cl 15(c), in the factual circumstances of this case, can be made out.
UNDERPAYMENT OF CONTRIBUTIONS TO SUPERANNUATION FUND 138 Section 178(6A) of the WR Act relevantly provides: (6A) Where, in a proceeding against an employer under this section, it appears to the court concerned that the employer has not paid an amount to a superannuation fund that the employer was required, under an award, order or agreement, to pay on behalf of a person, the court may order the employer to make a payment to or in respect of that person for the purpose of restoring the person, as far as practicable, to the position that the person would have been in had the employer not failed to pay the amount to the superannuation fund. 139 The Award and Certified Agreements applicable to the employment of Mrs Barrick by Qantas Catering do not impose any obligation to make superannuation contributions. Any obligation in that regard is not otherwise identified in the evidence. There appears to be no basis for the claim which relies on s 178(6A). 140 In any event, the evidence does not establish that there has been any underpayment of superannuation contributions.
SUPERANNUATION ENTITLEMENTS ON TERMINATION 141 I am unable to be satisfied that there has been any incorrect calculation of superannuation entitlements. In my opinion, the termination of Mrs Barrick's employment was not due to total or permanent disablement. Any responsibility for paying superannuation entitlements lies on the trustee of the superannuation plan: it is not the legal responsibility of Qantas Catering. 142 I do not accept that any letter of resignation had been offered and I am reinforced in that conclusion by the absence of any reference to such tender in the letter that Mrs Barrick's solicitor wrote to Mr Harden, the Human Resources Manager of Qantas Catering, on 18 August 1999. 143 It has not been established that the amount which was accepted as her correct salary at the time of termination was in error.
UNDERPAYMENT OF WAGES - SECTION 178(6) OF THE WR ACT 144 Perhaps the central claim of Mrs Barrick in the Federal Court proceedings is her assertion that she was underpaid wages. 145 Section 178(6) of the WR Act provides: (6) Where, in a proceeding against an employer under this section, it appears to the court concerned that an employee of the employer has not been paid an amount that the employer was required to pay under an award, order or agreement, the court may order the employer to pay to the employee the amount of the underpayment. 146 The issue of claimed underpayment of wages does not depend on any question of collusion between Ms Holness and Mrs Barrick. The question is: was Mrs Barrick paid the wages and other entitlements to which she was entitled, or was she not? 147 I have earlier referred to the statement by Mrs Barrick to Mr James Strong, where she said that the amounts shown in her group certificates were far in excess of any hours worked by her in the relevant years, and that "wages paid to me did not reflect those overpayments." 148 It is asserted by Mr Cusack on Mrs Barrick's behalf that the monies that were paid into her account were being treated by Qantas Catering as wages, but that Mrs Barrick thought they were Holness' money. The claim by Mr Cusack is that "her net pay that she received as pay was below what it should have been." 149 I am satisfied that the payroll record, including the microfiche payslips in evidence before the Court, is an accurate record of the monies paid to Mrs Barrick from September 1996 to June 1999. I accept the evidence of Mr Lytras to this effect. 150 I accept further that the true position as to Mrs Barrick's entitlements can be established by reference to records which pre-date any tampering by Ms Holness with the records or with payslips; that is to say, by reference to the Exception Reports which Mrs Barrick accepts accurately record the work actually performed. 151 I accept the evidence of Mr Lytras, a Partner in Vincents Chartered Accountants and a forensic accountant. The records which he examined were properly proved by Qantas Catering in evidence. Mr Lytras traced relevant payments from every available payslip either into Mrs Barrick's Commonwealth Bank Account or to loan accounts in her name. He assessed the remuneration to which the applicant was entitled relying on the Exception Reports assessed the remuneration which she was paid as disclosed in the payslips. He concluded that a total gross remuneration of $188,461.62 was received by Mrs Barrick, and that "based upon the activity recorded on the daily Exception Reports, Mrs Barrick was entitled to gross earnings totalling $122,556.85." His opinion was that "Mrs Barrick's gross earnings entitlement were overpaid by at least $65,884.77." 152 In this analysis only two Exception Reports for the period from 3 September 1996 to14 June 1999 were missing. In respect of these two days, Mr Lytras assumed that the applicant had worked a normal roster. 153 Mr Lytras was able to verify out of the net amount of $121,275 which was recorded in the payslips as paid to accounts in Mrs Barrick's name, actual receipts into her bank or credit union accounts of $120,183. Thus, the extent of verification into Mrs Barrick's accounts was greater than 99 per cent of the payslip amounts. 154 Mr Lytras, in his supplementary report, considered the difference in net amounts between entitlements of Mrs Barrick and the amounts paid to her. That supplementary report indicates that the net amount remitted to Mrs Barrick was $129,499.40, the figure in the group certificates, and the net amount to which he was entitled was calculated by Mr Lytras at $92,791.85. This analysis shows a net overpayment of $34,238.15 after the appropriate provision for tax. The analysis by Mr Lytras was based on the Exception Reports, all but two of which were extant, which recorded the actual work performed. He rejected the methodology that earnings could validly be predicted or assumed from earlier earnings. 155 The case for Mrs Barrick as to an underpayment is essentially predicated on such a calculation by Mr Barrick. This exercise was based on the assumption that the pay in the period chosen was representative of the whole of Mrs Barrick's employment. That exercise was hypothetical, and the Court has before it almost the entirety of the relevant documents. 156 It is obviously preferable to rely on actual figures than proceed on a questionable hypothesis of extrapolation. I accept the evidence of Mr Lytras that both in gross and net terms there was a significant overpaynent to Mrs Barrick over her actual entitlements.
OTHER MATTERS 157 Almost all of the matters referred to above do not depend essentially on rejecting any part of Mrs Barrick's account. However, Mrs Barrick, in the course of these proceedings, denied receipt of many payments recorded in the payslips. She denied receipt essentially of amounts recorded in number 2 payslips into her Commonwealth Bank account, and she also denied knowledge of or control over certain loan accounts into which payments were made by way of deductions. 158 In particular, in [147] of her statement filed 10 February 2003, Mrs Barrick said, "The respondent [Qantas Catering] was remitting deductions for a loan. I did not give authority for these deductions. I did not even know about them." 159 I am satisfied that the payments were in fact received by Mrs Barrick, as the evidence of Mr Lytras conclusively demonstrates. 160 Of great relevance to the credibility of Mrs Barrick was her denial of any knowledge at all of a loan in her name with Qantas Staff Credit Union. She said in her affidavit of 9 December 2003 at [18]: The Applicant held no account with the Qantas Credit Union during her years of employment with the Airline. Any payments made to Qantas Credit Union were made without the authorisation of the Applicant. 161 In the light of the evidence, this statement is a plain falsehood. 162 Mr Buchanan, on behalf of Qantas Catering, tendered documents from the file of the Qantas Staff Credit Union without objection from Mr Cusack. Amongst other things, there is an application for membership and shares signed by Mrs Barrick and dated 11 February 1997, in support of which she provided a birth certificate and drivers licence. In addition, on that day, she applied for a line of credit in the sum of $12,000. 163 The falsehood of that statement was devastatingly demonstrated by the evidence of Mrs Butler-McMahon. Mrs Butler-McMahon knew the applicant, recognised her, had served her personally, had prepared the loan documentation, and had personally witnessed her signing withdrawal forms to operate the account. She was asked in cross-examination by Mr Cusack: You're not saying that each and every time a withdrawal was made on the account which is referred to in your affidavit, that Mrs Barrick personally attended, are you?---Yes. 164 She was asked by Mr Cusack: You see, I suggest to you that the paperwork in connection with this loan was actually handled by Mrs Holness---No. 165 She was then asked: You're got various withdrawal forms with different exhibit numbers. You are not saying, are you, that you saw Mrs Barrick sign each and every one of those?---Yes. 166 And later: ?---I happened to be the teller that actually did the processing. Yes, you do say that, but - so you are saying, then, that you wouldn't have signed the back of the form unless you actually saw the person sign it?--- Correct. 167 There was also evidence that Mrs Barrick paid for a trip to London from this account and purchased travellers cheques from this account. The arrangements for authority were arrangements which were handled at the Qantas Staff Credit Union, and transmitted electronically to the Qantas payroll system. The assertion by Mrs Barrick that weekly deductions to service this loan were not her responsibility and she was ignorant of any involvement is simply a falsehood. 168 The evidence that she was ignorant of this loan and had nothing to do with it is quite inconsistent with evidence that she gave in the AIRC hearing. She said that in company with Ms Holness she took possession from the Qantas Staff Credit Union of a cheque for $9,000, which she cased at the Commonwealth Bank, Hamilton. She gave $5,000 to Holness and deposited $4,000 to her own Commonwealth Bank. She had earlier given Holness $2,000 from this account. All of that evidence is consistent with the records of the Qantas Staff Credit Union and the Commonwealth Bank records showing a withdrawal by Mrs Barrick of $2,000 on 13 February 1997, $9,000 on 14 February, and a deposit of $4,000 on 14 February to her Commonwealth Bank account. 169 This evidence is totally contrary to her claim in these Federal Court proceedings that she had no knowledge of the Qantas Staff Credit Union account. These were shown each week on her number 1 payslips, and the statements from the Qantas Staff Credit Union loan were addressed to Mrs Barrick at her employment at Brisbane Flight Catering. 170 As to the loan from the Colonial State Bank, Mrs Barrick said, "I did not give authority for these deductions. I didn't even know about them." 171 In fact, on 16 January1998, she applied for a loan of $12,000 with the Colonial State Bank. The application was supported by a number of documents including her drivers licence, rates notice, her income tax assessment for the year ending 30 June 1997, and two payslips: one dated 23 December 1997, and one dated 30 December 1997, each of which record repayment to Qantas Staff Credit Union of $38 per week. 172 In connection with this application to Colonial State Bank for a loan, Mrs Barrick, on 28 January1998, authorised periodical payments to discharge the loan of $67.00 per week. This authorisation is Exhibit 20 in these proceedings. That loan was discharged week-by-week at this rate as shown on her number 1 payslips. 173 In connection with a loan that Mrs Barrick had with Credit Union Australia: on 21 October 1998, she applied to increase her indebtedness on this loan. The stated reason for that application was "for going on holidays o/seas": Exhibit 22. In support of this application, she provided a copy of payslip dated 29 September 1998, which showed as employee deductions, the regular weekly payments of $38 to the Qantas Staff Credit Union, and $67 to the Colonial State Bank loan. 174 I am satisfied that, contrary to Mrs Barrick's denials, she was personally involved in obtaining loans from the Qantas Staff Credit Union, and the Colonial State Bank. She assumed the burden of discharging those loans by regular deductions from her pay, and she was in possession of payslips which showed regular repayments of the loans. Her assertion that she received no payslips from mid-February 1997 must be rejected. 175 I am satisfied that her claim that she had no responsibility for, and had no knowledge of, the loans from Qantas Staff Credit Union and the Colonial State Bank, and that she had not received any payslips is demonstrably false. 176 Further, Mrs Barrick's claim to Mr James Strong in her letter to him in July 1999 indicating that she had very little contact with Ms Holness is strikingly at odds with her evidence that on occasions she was importuned by Ms Holness to extract monies from her accounts for Ms Holness, sometimes up to four times a day. It is also quite inconsistent with the tenor of her evidence as her actual relationships with Ms Holness.
RELIEF 177 Mrs Barrick has sought a wide range of relief, including penalties for breach of the Award, money orders to address alleged underpayments, damages, including exemplary damages, for, amongst other things, legal costs associated with earlier legal proceedings in different fora,declarations, mandatory injunctions, and indemnity costs. 178 For the reasons earlier set out, the applicant has not established any cause of action which she has pleaded. 179 I accept that Mrs Barrick has standing to seek penalties for the breach of the Award or Certified Agreement, and the Court has a discretion to award such penalties to her if a breach is established: s 178 of the WR Act. 180 As the High Court make plain in Byrne v Australian Airlines Limited (1995) 195 CLR 410 at 420, damages is not available as a separate remedy. 181 Because of the fraudulent scheme orchestrated by the pay-mistress, Ms Holness, Qantas Catering did not comply with the requirements of cl 13(e) of the Award, in my opinion. This failure, however, does not avail Mrs Barrick, because, in my view, she received payslips which indicated what was being paid to her, or on her behalf, to her bank and other loan accounts; those monies were recorded in payslips which she received, and the monies exceeded the entitlements for the hours that she worked. 182 None of the other causes of action has been made out. 183 On the question of damage, the onus lies on Mrs Barrick, and there has been a spectacular failure to discharge that onus. 184 Finally, no basis exists, in my opinion, for the grant of any declaration or injunction that is sought. 185 I will hear the parties on costs. I certify that the preceding one hundred and eighty-five(185 numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.
Associate:
Dated: 31 May 2007
Solicitor for the Applicant Mr W Cusack, Cusack Galvin & James Solicitors
Counsel for the Respondent: Mr R Buchanan QC with Mr P McQuade
Solicitor for the Respondent: Blake Dawson Waldron Lawyers
Dates of Hearing: 7,8,9,10,11,14,15,16 March 2005; 27,28 April 2005; 26,27,28,29 July 2005; 3 August 2005; 4 October 2005
Date of Judgment: 31 May 2007
Barrick
Qantas Flight Catering Limited
[2001] AIRC 110
[2002] AIRC 91
(1990) 169 CLR 594
(1949) 79 CLR 370
(2003) 212 CLR 511
(1995) 195 CLR 410