OTR appeals underpayment case, challenging judgment by employment tribunal
OTR is fighting a controversial employment tribunal ruling that found it underpaid a former employee. While less than $3000 is in dispute, the case could have wider implications for the state’s biggest private employer and others with similar arrangements.
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The state’s biggest private employer has put forward its case against a controversial workplace ruling that could affect thousands of its current and former staff.
Shahin Enterprises, the company behind the OTR chain of petrol stations, is appealing the state employment tribunal judgment, which found it underpaid former staff member Thomas Mathew in three ways.
The ruling, handed down last June, found OTR failed to pay the former trainee for 15 minutes of work required prior to each shift, wrongly deducted 30 minutes from shifts for meal breaks he never took, and failed to pay proper overtime penalty rates.
While Mr Mathew has only claimed a little more than $2600 in unpaid wages, the case could have wider implications for both OTR and other employers with similar employment arrangements.
The collective agreement in question was used by OTR from 2007 to 2018.
Fronting a full sitting of the Federal Court today, Richard Dalton QC, acting for Shahin, explained the importance of the appeal.
“It defies belief that there would be an appeal in relation to dollars of this small magnitude unless there was a prospect that this was going to be potentially the subject of claims from people who were in the same position,” he told the court.
Regarding the dispute over meal breaks, Mr Dalton argued Mr Mathew’s evidence was “inconsistent” and “contradictory”, and that lawyers for Shahin were “deprived of the opportunity” to challenge the conflicting evidence.
“The case that was put was that the employer had directed the applicant to take his meal breaks standing up at the counter, and the applicant’s case was, direct quote, that he ‘complied always’ with that direction,” Mr Dalton told the court.
“And then for the first time (during the trial) he raised what he described as an alternative position, and the alternative position was, ‘I didn't take any breaks’, and not only did he say that, he said he didn’t take any breaks because he didn’t have time.
“At trial Mr Mathew ran his meal breaks claim on a footing that was materially different from, and internally inconsistent with, the matters that he alleged in his further amended application - for the deputy president to uphold the claim was a breach of procedural fairness to my client.”
Mr Mathew was employed by OTR between November 2015 and December 2016 and mostly worked a midnight to 7am shift at the company’s petrol station at Fulham.
OTR is not appealing the tribunal’s decision that it had an obligation to pay employees for work done prior to rostered start times, but argues the company’s policy was for employees to arrive 10 minutes, rather than 15 minutes, early to complete the “dips” and handover duties.
The matter has been reserved for judgment.