Cavar v MSS Security Pty Ltd

1. On 6 June 2023, the applicant and the respondent entered into the contract. The contract relevantly provided:

LETTER OF APPOINTMENT - FULL-TIME

Congratulations on this offer of employment as a full-time Security Officer with MSS Security Pty Ltd (the Company), Australia's leading provider of security services. As a member of a company with a long and proud history, we expect you will positively contribute to the level of service we provide to our clients.

...

Effective Date

The effective date of this contract is 08 June 2023.

Terms of Employment

As a Security Officer with the Company you agree to perform your duties at any site at which the Company has a contract to provide security services.

Your employment with the Company in a Full-time position will be dependent upon the Company retaining the contract with its client to provide security services at the site where you work.

...

Probationary Period

Your position as a Full-time Security Officer is subject to a probationary period of three (3) months. During this period either you or the Company may terminate the contract of employment by providing one (1) week's notice or payment of 1 week's wages in lieu of notice.

This probation period does not affect any rights under the Fair Work Act 2009.

12 Hour Ordinary Time Shifts

Signing this contract of employment indicates your understanding and agreement to working 12 Hour Ordinary Time Shifts and the Company's method of payment regarding overtime whilst employed by the Company on any site at which 12 hour shifts are applicable.

...

(emphasis in original)

1. The applicant worked her first shift for the respondent on 9 June 2023.
2. The respondent terminated the applicant's employment on 5 September 2023.
3. In Schedule A to these reasons are tables setting out the hours rostered to the applicant as recorded in the respondent's fortnightly rosters for the period from 9 June to 5 September 2023.
4. The respondent's payslips created with respect to the applicant during the period of her employment record the hours in respect of which the respondent paid the applicant for particular fortnightly periods.
5. The hours referred to in the roster and in the payslips are, in summary:

1. The difference between the 75 hours rostered and the 58.6 hours paid for the final fortnight is due to the applicant taking personal leave with respect to a 12 hour shift on 30 August 2023 for which the applicant was rostered, in circumstances where personal leave is paid on a standard day of 7.6 hours; and the applicant being rostered for a 12-hour shift on 4 September 2023 which she did not work.
2. The applicant's case appears to rely upon emails sent to the applicant by employees of the respondent in about mid-August 2023, which the applicant contends show that in subsequent weeks the applicant was to be rostered to work less than 38 hours per week. Those emails (as reproduced) are difficult to read and it is not clear that the applicant was in fact to be rostered to work less than 38 hours per week.
3. In any event, those emails are overtaken by the hours actually worked by the applicant and the payment made to the applicant for those hours.
4. For the fortnight ending on 27 August 2023, the applicant was paid for 83 hours. During the fortnight ending 10 September 2023: (1) the applicant's employment was terminated on 5 September 2023; (2) the applicant was paid for 58.6 hours, which exceeds the pro rata equivalent for the period 28 August 2023 to 5 September 2023.

1. It follows that regardless of the roster shown in the mid-August 2023 emails, the applicant was paid an amount in excess of the amount payable for a 76 hour fortnight. Thus, if the mid-August 2023 emails do show a proposed roster allocation of less than 76 hours per fortnight, then this caused no loss to the applicant.
2. For the foregoing reasons the applicant's originating application must be dismissed. The respondent accepts that there should be no order as to costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman.