FEDERAL COURT OF AUSTRALIA

Polan v Goulburn Valley Health (No 2) [2017] FCA 30

ORDERS

THE COURT DECLARES THAT:

1.    The applicant is entitled to the total sum of $27,869.28, plus interest to be calculated in accordance with the Court’s orders.

THE COURT ORDERS THAT:

1.    The parties confer with a view to agreeing on the amount of interest payable to the applicant in accordance with the Court’s reasons for judgment and Practice Note GPN-INT and, on or before 4 pm on 17 February 2017, submit an agreed proposed order in relation to the interest payable to the applicant.

2.     In the absence of any agreement between the parties pursuant to paragraph 1 of these orders, the parties are directed to attend a mediation before a Registrar of the Court, on a date to be fixed by the Registrar after 17 February 2017, for the purpose of agreeing on the amount of interest payable with the assistance of the Registrar.

3.    If the parties attend a mediation in accordance with paragraph 2 of these orders, the parties are each to adduce before the Registrar affidavit evidence of their calculations of the interest, and the basis for their calculations.

4.    If the parties agree on an amount of interest at mediation, the Registrar is authorised to make an order for the payment of interest in the terms agreed by the parties.

5.    The parties are each to pay 50% of the fee payable for any mediation conducted in accordance with these orders.

6.    If the parties fail to agree on an amount of interest, the Registrar is authorised to fix an amount of interest payable on the basis of the affidavit evidence produced by the parties, and to make an order accordingly.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

1    The background to this dispute is set out in my decision in Polan v Goulburn Valley Health [2016] FCA 440. In summary, the applicant, Ms Polan, sought relief under the Fair Work Act 2009 (Cth) (FW Act) and its predecessor the Workplace Relations Act 1996 (Cth) for breaches of two enterprise agreements by the respondent Goulburn Valley Health, a large regional hospital. The applicant was employed by the respondent from December 1997 until her resignation in November 2014. Her responsibilities included acting as a rostering clerk, managing the rosters for junior doctors at the hospital. In the course of her rostering work, she took many calls from junior doctors at all times of the day and night regarding changes to the roster arrangements.

2    The central dispute between the parties in this proceeding was initially whether the telephone calls the applicant made and received outside her workplace and regular working hours constituted “recalls to duty” as that term was used in the relevant agreements. Recalls to duty triggered entitlements under the agreements. The parties agreed this discrete question could and should be decided first, as it determined whether the respondent was liable to Ms Polan at all for the claimed entitlements. In Polan [2016] FCA 440, I concluded there had been no “recalls to duty,” but the applicant was entitled to overtime payments for the hours she spent discharging such duties, in addition to the payment of an on-call allowance.

3    The remaining issue for resolution is the sum of those entitlements.

4    For the reasons that follow, I consider the applicant is entitled to the sum of $27,869.28 by way of overtime payments, plus interest, which is to be calculated by the parties in accordance with these reasons for judgment and Practice Note GPN-INT.

THE DECISION ON LIABILITY

5    In my liability decision, I noted that neither party sought to rely on the overtime provisions in each of the applicable instruments, despite my inquiry about this at the liability hearing. Rather, the parties submitted the central issue was whether the applicant making and receiving calls to and from doctors and rearranging rosters at home while on-call constituted “recalls to duty,” where the requirement to do so was an ongoing arrangement rather than a specific request from her employer on each given occasion.

6    I found that the applicant was properly paid an on-call allowance for the period where, outside her ordinary hours of work, she was required to make herself available on-call to rearrange rosters and find replacement medical staff as the need arose because of doctors’ unexpected or sudden leave requirements. I also concluded that the applicant was entitled to additional remuneration for the instances where, during the period she was on-call, she was required to perform duties. On the question of whether that additional remuneration be in the form of the recall allowances provided for in the relevant agreements or some other form of allowance, I found that the answer lay in the notion of the verb “recall” itself, which suggests a conscious decision by or on behalf of an employer to require an employee to perform specific duties of employment outside the employee’s ordinary hours of duty.

7    I concluded (at [82]-[83]) that, given there was no instruction given to the applicant by or on behalf of her employer on each specific occasion that she was required to attend to rostering duties while on-call, what the applicant was doing when she answered and made telephone calls and performed other tasks in order to rearrange rosters could not properly be described as her being recalled to duty. However, I found that, unlike the recall power, overtime was not confined to the issuing of a specific direction or instruction by an employer to an employee to perform duties on a specific occasion. I found that the overtime payments provided for in the relevant industrial agreements were concerned with an employee working reasonable additional hours which are either expressly or impliedly authorised by the employer, including by way of an ongoing understanding or arrangement between the employer and the employee. I concluded that, when the applicant was contacted and made aware of a staffing issue that needed her attention, and when she went on to make and receive phone calls in order to make the necessary staffing arrangements and changes, she was performing overtime work within the meaning of the relevant instruments.

8    It is relevant to note here that, in the parties’ agreed statement of facts filed on 5 November 2015, the parties stated that the respondent commenced paying the applicant a three hour minimum recall payment in or about August 2012 and commenced paying the applicant double time recall payments in or about November 2013. This affects the amounts payable to the applicant, and I deal with this at [80]-[86] below.

9    When I delivered judgment on liability, I made orders requiring the parties to file – either individually or by consent if they could reach agreement – proposed final orders relating to the quantum of the relief the applicant is entitled to for the unpaid overtime work she performed. The orders provided:

1.    If the parties agree on the sum to which the applicant is entitled and on any further or other orders the parties propose to be made in accordance with these reasons for judgment, the parties are to file a minute of proposed consent orders on or before 4 pm on 17 May 2016.

2.    If the parties do not agree on the sum to which the applicant is entitled or do not agree on any further or other orders which should be made in accordance with these reasons for judgment, then the applicant and the respondent are each to file and serve on or before 4 pm on 17 May 2016:

(a)    a minute of proposed orders;

(b)    an outline of submissions relating to the proposed orders (limited to three pages); and

(c)    any necessary evidence relating to the proposed orders.

EVENTS AFTER THE JUDGMENT ON LIABILITY

10    On 13 May 2016, the solicitors for the respondent emailed my associate and stated that the parties were in discussions regarding the calculation of overtime amounts, but anticipated that they would not be in a position to submit proposed orders by 17 May 2016. The parties requested, by consent, an extension of time until 31 May 2016 to comply with my orders of 29 April 2016. On 16 May 2016, I made orders extending the deadline until 4 pm on 31 May 2016.

11    Neither party complied with my orders of 16 May 2016. A few minutes after the deadline on 31 May 2016, the solicitors for the respondent again emailed my associate and stated that, while the parties were continuing to calculate overtime amounts, it was taking longer than expected. The parties requested a further extension of time until 14 June 2016 to submit the documents. On the same day, my associate replied to the parties via email and informed them that I would grant the further extension of time but that, should the requested documents not be filed by 4 pm on 14 June 2016, the parties would be required to attend a hearing to explain their non-compliance to the Court. At 4 pm on 14 June 2016, neither party had filed and served any of the requested documents, nor contacted my associate to request a further extension or explain their non-compliance.

12    After my associate followed up with parties via email after the 4 pm deadline on 14 June 2016, the parties submitted some – but not all – of the documents they were required to submit. Notably, the respondent submitted proposed orders seeking leave to file and serve a cross-claim. It also filed a supplementary list of documents, revealing documents it had not yet discovered, most of which were Telstra bills for the applicant’s work mobile phone over the period of 2007-2014.

13    On 16 June 2016, I made orders listing the matter for a one day hearing on the issue of quantum on 29 June 2016 and setting further deadlines for outstanding documents. The orders required the respondent to file and serve any application for leave to file a cross-claim on or before 4 pm on 21 June 2016 and stated that any such application would also be listed for hearing on 29 June 2016.

THE RESPONDENT’S APPLICATION FOR LEAVE TO FILE A CROSS-CLAIM

14    On 21 June 2016, the respondent filed an interlocutory application for leave to file a cross-claim. This application was anticipated in the respondent’s submissions filed on 15 June 2016, in which it stated that the cross-claim was “not previously contemplated as [the respondent] did not consider (indeed, neither party considered) that the Applicant had been underpaid overtime payments due, as now found by the Court …”

15    In its statement of cross-claim, the respondent stated that, between 30 July 2012 and 20 October 2014, it paid $60,271.27 in recall payments to the applicant due to a mistake of law as to its obligation to make such payments. In its details of cross-claim, the respondent sought orders that the applicant make restitution to the respondent in the amount of $60,271.27 or, alternatively, an order setting off the amount of $60,271.27 against any amount for which the respondent may be found liable to the applicant in the primary proceeding.

16    As outlined in her submissions filed on 27 June 2016, the applicant opposes the respondent’s application for leave to file a cross-claim on several bases:

(a)    the respondent has expressly waived any entitlement to recover erroneously made recall payments during the course of this proceeding;

(b)    alternatively, the late application is contrary to the principles expressed in section 37M of the Federal Court of Australia Act 1976 (Cth) and common law case management principles in circumstances where the respondent knew of its entitlement and chose not to press it.

Further, leave should be refused because the counterclaim is without merit. The defences to the counterclaim are obvious and compelling:

(a)    the erroneous payments may be an unjust enrichment (by mistake of law), but the applicant has changed her position in reliance upon those payments, and the respondent is precluded from recovery by reason of that change;

(b)    alternatively, the respondent is estopped by representation from reclaiming the payments;

(c)    alternatively, the payment was not erroneous but was a mutually agreed variation to the applicant’s conditions of employment evidenced by emails exchanged between the applicant and respondent [on] 24 October 2013.

Finally, granting the respondent leave will now prolong the hearing of the matter which would be prejudicial to the applicant in terms of additional costs.

(Footnotes omitted.)

17    At the hearing on 29 June 2016, the respondent clarified that the key authority it relies on in pressing its application for leave to file a cross-claim is David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; 175 CLR 353. I determine the cross-claim application at [45]-[71] below, including by deciding that what was said by the Court in David Securities does not assist the respondent.

THE PARTIES’ ARGUMENTS ON QUANTUM

The applicant’s submissions

18    In her submissions filed on 27 June 2016, the applicant submitted that the Court’s task in determining the quantum of her entitlements involves answering two questions: what was the amount of time the applicant spent performing overtime work during the claim period and what, if any, additional entitlements is the applicant entitled to by reason of her performance of this overtime work?

19    While the applicant acknowledged that answering the first question is difficult as no exact records of the duration of time she spent receiving calls and changing rosters outside her regular working hours were kept by either party, she submitted that the Court could arrive at a fair estimate by using the evidentiary material available to it and applying some assumptions. The applicant submitted that the excel spreadsheet she maintained during the claim period – which records the date, day of the week and time she received calls, the ward each call related to, and comments indicating the type of call – is the best evidence available to the Court as to the duration of the overtime she worked.

20    The applicant submitted that the date, day of the week, time of call, and ward are useful in estimating the duration of each call because these factors determined how difficult it would be to find a replacement staff member. Her proposed method for calculating the quantum of the relief is based on the following assumptions:

(a)    It is less time-consuming to find replacement staff for some wards than others;

(b)    It is less time-consuming to find replacement staff on weekdays than on weekends;

(c)    The amount of time required to fill a shift varies according to the time of day the call is received. It is the least time-consuming to find replacement staff between 5:00pm and 12:00am during weekdays and weekends; the next least time-consuming between 8:30 am and 5:00pm during weekends; and most time-consuming between midnight and 8:30am on weekdays and weekends.

21    In relation to the second question, in her written submissions filed on 27 June 2016, the applicant submitted that the Court must determine what additional entitlements flow from having performed overtime work by reference to the relevant industrial instruments or, in the case of some entitlements, by reference to considerations of fairness. The applicant had not raised a claim for extra entitlements arising from the overtime work she performed before this point. She submitted that during the claim period she was entitled to the payment provided for by cl 25.6 of the 2005 Award and cl 38.2.1(f) of the 2009 Agreement. Clause 38.2.1(f) of the 2009 Agreement provides that:

If, on the instructions of the employer, an employee resumes or continues work without having had an 8-hour break in accordance with 39.2.1(e), they shall be paid at the rate of double time until they are released from duty for such rest period. The employee shall then be entitled to be absent until they have had an 8-hour break. The employee shall not suffer any loss of pay for rostered ordinary hours occurring during such absence.

22    As well as entitlements under cl 25.6 and cl 38.2.1(f), the applicant submitted that she is entitled to double time payments for overtime work she performed during annual leave, on public holidays, while on personal leave, and on accrued days off (ADOs). She conceded that neither the 2006 or 2009 Agreements expressly provide for any additional entitlement in any of the above circumstances, but submitted that, in relation to each of those categories of leave, it was “unfair” that her leave was interrupted and it was unfair that the respondent not be required to pay any penalty for such interruption. However, halfway through the hearing on 29 June 2016, the applicant informed the Court she had decided to abandon her claims for extra entitlements in respect of overtime she performed during annual leave, public holidays, personal leave and ADOs. She continues to press her claim in relation to the insufficient rest clauses.

23    The applicant contends in her final written submissions, filed after the quantum hearing, that she is entitled to overtime payments totalling $57,542.09 and insufficient rest penalty payments totalling $69,322.24. Additionally, the applicant submits that she is entitled to interest on the final amount, calculated in accordance with the relevant Federal Court of Australia practice note regarding interest on judgments. The applicant referred to the practice note then in force, although a new practice note has now been issued. The applicant has calculated the total interest she is owed at $69,735.80, bringing her total claim figure to $186,303.40.

24    The applicant did not make written submissions in relation to penalties and, after first indicating at the hearing on 29 June 2016 that she would press her claim for penalties through oral submissions, she informed the Court later in the hearing that she would abandon this claim too.

The respondent’s submissions

25    The respondent disputes the applicant’s proposed method for calculating the actual time she spent performing overtime on several bases, including that the estimates often do not correlate with the time she spent making outgoing calls; the estimates are in increments of one hour; and they include time the applicant spent waiting in between calls.

26    The respondent also submits that the applicant does not have an entitlement to penalty rates due to the lack of an eight hour break between shifts, as that entitlement applies only to employees who are “recalled to duty.”

27    As I have noted, the respondent submits that, between 30 July 2012 and 20 October 2014, it erroneously paid the applicant recall allowance and double time recall payments due to a mistake of law, in the total amount of $60,271.27. It submits that, based on its calculations of the applicant’s unpaid overtime, the total amount of unpaid overtime for the period 1 October 2008-17 September 2012 (being the applicant’s claim period) is substantially less than the applicant was paid in recall payments between 30 July 2012 and 20 October 2014. The respondent submits that the mistakenly overpaid recall allowance may be set off against the mistakenly unpaid overtime amount, as both the overpayment and underpayment occurred due to a mistake of law, and are both prima facie recoverable. The respondent submits that, if a cross-claim for the total amount including interest were to be upheld, the amount payable to the respondent would exceed the amount prima facie payable to the applicant and there would be a net amount payable by the applicant to the respondent.

28    The respondent raised in its submissions the possibility that the overpaid recall payments and unpaid overtime payments may be subject to the “change of position” defence, anticipating that it may be that the amounts saved by the respondent due to the unpaid overtime and the amounts paid to the applicant due to the mistaken recall allowance and related payments have been utilised in good faith by each of the parties to defray ordinary operating or living expenses. The respondent contends that, if this is the case, neither amount can be recovered by way of restitution or otherwise.

29    At the end of the hearing on 29 June 2016, the respondent reformulated its submissions regarding quantum, summarising its position in light of the evidence given at the hearing. The respondent’s primary submission is now that the applicant has not made out her claim and thus is entitled only to nominal compensation. As I understood the respondent’s oral submissions, this argument arises out of the lack of correlation between some of the estimates in the applicant’s method table and the outgoing calls to which they relate, as became apparent during the respondent’s cross-examination of Ms Polan. In its supplementary final submissions, filed after the quantum hearing, the respondent further submitted that the applicant has not met her burden of proof because the method she has used to calculate the quantum is “a highly inaccurate, entirely unsubstantiated formula which has no factual basis, and grossly inflates the actual time [the applicant spent performing overtime].” If this primary submission is accepted, the respondent does not seek leave to file a cross-claim, as it says such an application would have no utility.

30    If its primary submission is not accepted and the Court considers it has sufficient material to estimate the applicant’s loss, the respondent’s new alternative position, as modified in its supplementary final submissions, is that the compensation should not exceed the amounts calculated by Ms Lindner and set out in her affidavit sworn on 15 June 2016, as corrected in the quantum hearing by counsel for the respondent and extrapolated to the date of 17 September 2012 (the end of the applicant’s claim period).

EVIDENCE RELEVANT TO THE CALCULATION OF QUANTUM

The respondent’s evidence

31    After my decision on liability, the respondent organised for its payroll officer (Ms Lindner) to determine the total amount of overtime payments the applicant is entitled to. In her affidavit sworn on 15 June 2016, Ms Lindner stated that the Telstra telephone bills for the applicant’s work mobile phone from 1 October 2008 to 19 September 2014 – which were recently requested by the respondent – are the best records the parties have of the duration of overtime the applicant worked on each occasion. Ms Lindner was not cross-examined. She deposed that the respondent has calculated the unpaid overtime by:

(a)    calculating the overtime amount for each telephone call made and received by the Applicant based on:

(i)    the duration of the call;

(ii)    the Applicant’s hourly rate of pay factored at time and a half, double time, or double time and a half as appropriate; and

(iii)    whether the Applicant made or received telephone calls while on leave or on a public holiday.

(b)    adding up the total amount of overtime the Applicant worked taking and receiving calls outside of her ordinary hours of work each day, and each year;

(c)    analysing the Applicant’s remuneration history to confirm if the Respondent had previously been paid any remuneration for telephone calls made or received outside of the Applicant’s ordinary hours of work; and

(d)    reducing the total amount by any remuneration that had been paid previously to the Applicant for telephone calls made or received outside of the Applicant’s ordinary hours of work.

32    At the hearing on 29 June, counsel for the respondent conceded that there were omissions from Ms Lindner’s affidavit in that, while she refers to the Telstra phone bills upon which her calculations are based as “phone records” and states that she used the records to calculate the overtime amount for each telephone call “made and received” by the applicant, in reality the documents are phone bills rather than records and, as such, only record calls made by Ms Polan from her work mobile phone, and not calls received by her.

The applicant’s evidence

33    Calculating the duration of the overtime that the applicant performed on each occasion during the claim period is not a straightforward task in this case, because neither the applicant nor the respondent kept any records of the duration of the overtime. What the applicant deposes she did record on each occasion she performed overtime work more than 30 minutes in duration was the date, day, and time of the original call, the ward of the hospital it related to, and comments indicating the type of call. The applicant’s evidence is that her general practice was to record this information on a spreadsheet saved on a laptop computer that she was provided by the respondent when she arrived at work in the morning after each occasion she performed overtime work of more than 30 minutes. When Ms Polan resigned, she returned the laptop to the respondent, but her evidence is that she emailed herself a copy of the Excel spreadsheet before doing so.

34    In a document titled “Method”, which is at the end of annexure MLP-1 to the applicant’s affidavit sworn on 26 June 2016, the applicant sets out her estimates – in hour increments – of the time she spent facilitating a given roster change by reference to the ward, day of the week and time of day. The applicant’s method for arriving at these estimates is explained in detail at paragraphs [15]-[19] of the body of that affidavit. Ms Polan explains – for each given ward – why she allocated the hours she did to roster changes relating to that ward and the variation in the allocated hours based on the day of the week and time of the day. Counsel for the respondent did not cross-examine Ms Polan in any detail on the reasons for her allocations nor on the assumptions underlying her method.

35    Counsel for the respondent did however place emphasis in his cross-examination on determining whether the phone conversations with doctors were the lengthiest component of any given roster-change task and the extent to which the estimates in the applicant’s method document correlated with the duration of the calls made by Ms Polan to which they related.

36    In her affidavit sworn on 26 June 2016, the applicant criticised the respondent’s approach to calculating her overtime entitlements, stating that the reliance on Telstra telephone bills as the basis for calculating the amount of overtime she worked “grossly understate[s] the work [she] was required to do”. She deposed:

4.    … My job was not simply a matter of making telephone calls. If that was all that was required, a person less senior could have done it, for example, the switchboard of the hospital, which is staffed at all times.

5.    I was required to work on-call 24 hours a day, seven days per week as detailed at paragraph 10 of the affidavit affirmed by Brian Cole on 1 October 2015. It was up to me to decide how to arrange a replacement staff member using my skill and knowledge of the operation of the hospital. I was expected to do whatever I could to arrange the replacement as detailed at paragraph 12 of the same affidavit affirmed by Brian Cole on 1 October 2015.

6.    The records provided by the Respondent are inadequate to show the extent of the actual time spent replacing staff members because the respondent’s calculations rely on Telstra phone bills. Telephone bills record the liability of the account holder to pay the service provider. They record calls made to another number and the duration of the call and the amount payable on account of the call. They do not record:

a.     telephone calls received because this creates no liability for the purpose of a bill;

b.     text messages sent and received (I would commonly fill rosters or receive notice of the requirement to work after hours through text message); and

c.     all of the missed calls to doctors when I would call to try and fill a shift but they would not answer (that is, when I chose not to leave a message), which happened often as some doctors would ignore my calls because they would know what I was calling about, that is, extra un-rostered work.

7.     Further mobile phone bills do not capture the calls which I received on my home phone sometimes, calls were made to my husband’s mobile phone when I was not available. I also was contacted via email often. Home phone contact and email was also a common way of receiving notice. Many doctors had my home number saved into their phone because they had it available to them.

37    At the hearing on 29 June, the applicant gave oral evidence confirming that doctors would often text or call her husband’s mobile phone or her home phone to request changes to the roster or to respond to her calls. She stated that the doctors had these additional numbers as she sometimes called them from her husband’s phone or home phone when her phone was flat, out of range, or in her bedroom charging while her children were sleeping nearby. The applicant agreed during cross-examination that she has never claimed phone allowance or reimbursement for work calls she claims to have made from her home phone or husband’s phone.

38    In the same affidavit, the applicant also deposed to other aspects of the process she was required to follow when she performed overtime work that she claims are not captured by the respondent’s evidence and calculations. She deposed that, upon receipt of a call, she was required to identify the relevant department and role that required filling; which practitioners were already rostered on; which practitioners were available to be rostered on (that is, those that were not on leave, had not worked the night before, were working within safe working hour guidelines etc.); and the qualifications of the practitioner. She deposes that arriving at the answers to these questions did not involve “snap decisions,” but rather required referring to the roster (which contained information about who was available and who was not) which was either in a hard copy folder or online, which would require her to log into the hospital administration system.

39    Further, in relation to each request for a change to the roster, the applicant deposed that she was required to:

(1)    identify and create a list in her head or on paper of the potential practitioners to replace the unavailable employee (which took approximately 15-20 minutes on each occasion);

(2)    locate the contact details for each candidate (she deposed that, for the first approximately two years, the records were on paper only, then they gradually came to be recorded electronically and accessible by email or by logging on to the hospital database. If she could not find a number, she would contact the switchboard of the hospital and they would transfer her to the doctor so she could speak to them);

(3)    once the replacement was found, do the further work specified in her affidavit sworn on 28 October 2015, including the updating of rosters and schedules and paper work, sample copies of which are set out in her affidavit sworn on 29 October 2015 at “MLP-1”; and

(4)    record the changes to the roster so that the pay office was aware of the changes. She would do this by emailing the roster changes to herself and also emailing other administrative staff responsible for updating the rosters to ensure they accurately reflected the amounts payable as a result of the changes.

40    Ms Polan gave oral evidence at the hearing that the initial call to her from a doctor wishing to pull out of or change a shift was usually very brief and would “only take a couple of minutes depending on, you know, what they were talking about.”

41    She confirmed in oral evidence that it would take her 15-20 minutes to identify which doctors could cover a given shift after a request for a roster change. She also gave evidence that, after making calls to request replacements, she would spend significant time waiting for responses from various people she had called. She clarified that the estimates of time spent performing overtime work in her method table include such periods spent waiting in between calls.

42    Somewhat in contradiction to this, when the proposition was put to Ms Polan during cross-examination that the majority of the time she spent performing overtime work in relation to rostering consisted of her ringing out to try and find the doctors who would fill the gaps, she agreed:

[Mr Rinaldi:] Your evidence before was – and it’s clearly the case, wasn’t it – that the majority of the work you did with doing this rostering was – consisted of you ringing out to try and find the doctors who would fill the gaps, yes?

[Ms Polan:] Yes.

43    However, when the proposition was put to her again, in a slightly different form, she disagreed:

[Mr Rinaldi:] But the outgoing calls are still the majority of the time you spend after that initial 25 minutes, isn’t it?

[Ms Polan:] No. I don’t – I don’t actually agree. You’re trying to make it sound very simple, and it’s not.

44    Overall, my impression of Ms Polan’s evidence was that she had no clear recollection of the time she spent on various tasks. She knew well the nature of the tasks she had performed when rosters needed to be changed, as she had performed them repeatedly, often several times each week. Her evidence as to the nature of the tasks, and the fact that they were more complex than simply making and receiving calls, is evidence that I accept. I accept that, in order to make such calls, she needed to do some preliminary thinking and checking about which doctors would be available, hadn’t worked too recently, had the right experience and other matters of that sort. I do not, however, accept that the tasks were quite as complicated or lengthy as she sometimes made them seem in her evidence. Ms Polan was an experienced hospital administrator, and had worked at Goulburn Valley Hospital for quite some time. I find she knew what needed to be done and went about her tasks in an organised and efficient way, as demonstrated by the details in the records she kept. However there tended to be in her evidence an element of exaggeration about the time she spent, no doubt to try and justify recording and claiming often one-three hours at a time for an event of re-rostering. I am not prepared to rely entirely on her oral evidence, nor her spreadsheet, in determining the time these tasks took.

CONSIDERATION

The respondent’s application for leave to file a cross-claim

45    The application for leave to file a cross-claim is, as I have described above, conditional. At the quantum hearing, counsel for the respondent stated the cross-claim would not be pressed if the Court accepts its primary submission that the applicant has not made out her claim and should only be awarded nominal damages. In the event that the Court was to consider Ms Polan is entitled to payment for the hours of overtime recorded in the Telstra phone bills, counsel for the respondent submitted that the figure Ms Polan would be entitled to would be around $31,000 (including interest), or slightly higher, plus a gross-up of a maximum of 50% to take into account the other work she did which was not captured by the phone bills. This would result in a total figure of around $45,000-$48,000. In this event, counsel clarified that the respondent would press its cross-claim.

46    After the hearing, in its supplementary final submissions, the respondent changed its position. While maintaining its principal contention that the claim had not been proven, the respondent resiled from the concession made at the hearing about 50% grossing up on the basis that the applicant had given evidence at the quantum hearing that not all calls made on her work mobile phone were work related. The respondent now contends that, if the Court finds there is sufficient material to estimate loss, the total figure the Court should find owing to the applicant is $19,766.55. It contends that the Court should decline to order the respondent to pay interest on that amount, having regard to the substantial amount of overpaid recall the applicant has already received. The respondent pursues its cross-claim if its primary submission is rejected and its alternative submission becomes necessary.

47    Whichever version of the respondent’s position is examined, it is appropriate to say its application for leave to file a cross-claim is conditional. It does not seek to adduce any further evidence; it only seeks to rely on the evidence of Ms Lindner. It does not seek any further hearing, or an opportunity to make any further submissions. Its approach does not appear to consider the position of the applicant and how she might be given an opportunity to challenge the evidence and arguments it relies upon.

48    One view of the late cross-claim is that it is a way of pressuring the applicant to accept a lesser sum. I need not decide if that is an accurate description of what the respondent is intending to do, given the basis on which I consider its application should be disposed.

49    Plainly, the respondent needs leave to file its cross-claim. The application is made after the Court has determined liability, substantially on the basis of agreed facts. It is also made after what I consider to be a clear position put on behalf of the respondent by experienced counsel that he had no instructions to pursue any claim against the applicant. It also comes after the observations I made in the liability judgment at [22]-[23] and which I have reproduced below at [64]. For the most part, it relates to a period outside the period which is the subject of the applicant’s claim.

50    The grant or refusal of leave should be considered by reference to issues particular to the parties and the circumstances of the case. However, the Court must also determine how the grant or refusal of leave will promote the overarching purpose of the civil practice and procedure provisions governing the exercise of its jurisdiction. That overarching purpose is to facilitate the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible: see s 37M(1) of the Federal Court of Australia Act 1976 (Cth).

51    That overarching purpose encompasses the following objectives, which must be taken into account in determining how the grant or refusal of leave promotes that purpose (see s 37M(2)):

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner;

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

52    In Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 at [5], French CJ referred to the broader considerations at work in considering an adjournment application. I consider those observations applicable to the current application for leave to file a cross-claim, because of the stage at which it is made:

In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.

53    Similarly, the following remarks of the plurality in Aon (at [93]) are also relevant:

... the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants ...

54    The stage at which this application is made, the necessity to give the applicant a full opportunity to test the respondent’s evidence as to calculation, to adduce evidence and have it tested about what she would have been paid by way of overtime during the full period she received recall payments, and to afford both parties an opportunity to make further submissions after such evidence essentially means there would need to be a prolonged third tranche of this proceeding. The amounts in dispute (not including interest) are significant but not high: on the respondent’s argument, it paid the applicant an extra $60,000 or so over a period of approximately two years. However Ms Lindner’s evidence also is that the applicant was entitled to $29,368.25 in overtime payments for the period of 1 October 2008-19 September 2014 (which, I note, does not cover the whole period that the applicant received recall payments). If one subtracts what the applicant is entitled to in overtime payments for her claim period from this amount, there is a sum of approximately $10,000. Then, as I find below, since the Telstra bills do not represent all the work the applicant did on overtime, this figure should be grossed up by 50%, to approximately $15,000. That means the sum which may be in dispute on the cross-claim might be in the region of $45,000 or less rather than $60,000. All this in a jurisdiction where the operating presumption (see s 570 of the FW Act) is that the parties will bear their own costs. Further, this matter has already taken more than two years to reach this point, having been commenced in October 2014.

55    The timely and cost-effective resolution of the dispute between the parties does not favour the grant of leave to the respondent to proceed with its cross-claim.

56    What of the justice of the situation? The inconsistent positions taken by the respondent, apparently for forensic and strategic reasons, do not suggest that a just resolution of this proceeding requires leave to be granted for the cross-claim to be fully agitated. My view on this is strengthened by the factors to which I refer below.

57    As the extract at [16] above reveals, in her written submissions filed on 27 June 2016, the applicant submitted that the respondent expressly waived any entitlement to recover erroneously made recall payments during the course of the liability hearing. In making this submission, the applicant was referring to the following exchange:

HER HONOUR: The respondent’s not seeking – hasn’t made a cross-claim or anything.

MR RINALDI: No. No.

…

MR RINALDI: And I don’t have any instructions to do so - - -

HER HONOUR: Yes.

MR RINALDI: - - - and I don’t believe I will be getting instructions to make a cross-claim. No, no[t] that I’m aware of, your Honour.

58    I have difficulty with the respondent’s argument that it should be granted leave to file a cross-claim in relation to erroneously overpaid recall payments now, after the focus in these proceedings has changed from recall payments to overtime payments, when an application for a cross-claim was not made when the parties were in disagreement about recall payments. In other words, the period of these proceedings when the central legal dispute between the parties was the applicant’s entitlement to recall payments would have been the obvious and most appropriate time for the respondent to file a cross-claim, or to seek leave to file a cross-claim. The central issue in dispute during this period was the applicant’s entitlement to recall payments: that is, to the very kind of payments the respondent subsequently began paying her. At that time, the respondent came very close to expressly waiving its right to file a cross-claim. Now that the respondent has been unsuccessful in its original contention that the applicant is not entitled to any payments for the claim period, and the focus of the proceedings has shifted away from recall payments to the quantum of the overtime payments the applicant is entitled to, how can it be appropriate to grant the respondent leave to file a cross-claim relating to overpaid recall payments?

59    The respondent puts its claim in the following terms:

Where, as here, the payment of recall is made by mistake of law, the party mistakenly paying the amount may prima facie recover it, subject to a reasonable reliance “change of position” “defence” that might be argued by the payee (here, the Applicant).

(Footnote omitted.)

60    For this proposition it relies principally on David Securities at 376, 379-80, 384-86 (Mason CJ, Deane, Toohey, Gaudron and McHugh JJ), 396-400 (Brennan J) and 401-406 (Dawson J). It also relies on Australian Financial Services and Leasing Pty Limited v Hills Industries Limited [2014] HCA 18; 253 CLR 560 at [23] (French CJ), [81] (Hayne, Crennan, Kiefel, Bell and Keane JJ), [106] and [155]-[157] (Gageler J) and Southage Ply Ltd v Vescovi [2015] VSCA 117; 321 ALR 383 at [50]-[68].

61    David Securities concerned two family companies (one of which was David Securities), which engaged in property development. David Securities took out a foreign currency loan with the respondent (the Commonwealth bank) for the purpose of property development activities. The second family company also entered into two related loans with the bank, enabling it to draw down funds obtained through the foreign currency loan. The loans were secured by registered mortgages given by the two family companies, as well as unlimited personal guarantees from the husband and wife who controlled the companies, and were also supported by registered mortgages of land under the Real Property Act 1900 (NSW). The loans were subject to adverse currency fluctuations almost immediately and the companies suffered heavy financial losses. They brought proceedings (in negligence, contract and under ss 52 and 53 of the then Trade Practices Act 1974 (Cth)) against their financial advisers and against the bank. At 361-362, in the reasons of Mason CJ, Deane, Toohey, Gaudron and McHugh JJ, the issue in the appeal was set out:

On the appeal to the Full Court of the Federal Court in respect of the cross-claim, the appellants argued that they were liable to pay only some of the moneys claimed by the Bank. Only one of the two grounds relied upon before the Full Court is argued here, namely, that cl. 8(b) in the loan agreements between David Securities and the Bank and A. & T. Rahme and the Bank was void by virtue of s. 261 of the Income Tax Assessment Act 1936 (Cth) (“the Act”) with the consequence that David Securities and A. & T. Rahme were entitled to a refund of certain moneys paid to the Bank by the companies pursuant to their supposed obligations under cl. 8(b). The appellants submitted that they were entitled to set off these liquidated amounts against the moneys claimed by the Bank because the amounts in question had been paid over under a mistake of law. The Full Court found that cl. 8(b) was rendered void by s. 261 of the Act and that the appellants had made a mistake of law or of mixed law and fact. However, by applying earlier authorities according to their traditional interpretation, the Full Court concluded that the appellants were not entitled to a set-off for the reason that an action for money had and received did not lie in cases of payment under a mistake of law. The Bank’s notice of contention filed in this Court challenges the Full Court’s findings as to both the applicability of s. 261 of the Act and the existence of a relevant mistake.

(Footnotes omitted.)

62    At 367, the plurality note that, notwithstanding that “the pleadings did not throw up the specific issue whether the moneys in question were paid under a mistake, whether of fact or law, it is evident that the case was argued on that basis.” That is not the case in this proceeding. The respondent consciously elected not to argue that it had paid the recall payments under a mistake of law, despite, in substance, contending the applicant did not have a legal entitlement to recall payments.

63    It was in David Securities that the High Court determined what it called the “traditional rule” – that monies paid under a mistake of law should not be recoverable – should no longer, in its broad form, be part of Australian law: at 376. Rejecting (at 378-379) several qualifications suggested in various authorities, the Court held that the nature of the mistake (whether of fact or law) is not the governing consideration. It expressed the correct principle in the following terms (at 378):

So, the payer will be entitled prima facie to recover moneys paid under a mistake if it appears that the moneys were paid by the payer in the mistaken belief that he or she was under a legal obligation to pay the moneys or that the payee was legally entitled to payment of the moneys.

64    In the present proceeding, the respondent’s claim on this basis cannot succeed because there was no evidence led as to the reason, or reasons, the respondent commenced paying the applicant additional allowances from 30 July 2012. I made this clear in the liability judgment at [22]-[23]:

Aspects of this agreed position between the parties are somewhat puzzling, at least insofar as the respondent’s submissions on the contentious issues are concerned. Initially, the respondent contended that the new telephone allowance, to which I have referred at [14] above, came into effect on 18 September 2012, and also appeared to contend that the applicant should have been paid this allowance rather than a three hour recall allowance, after this date.

It appears the respondent contends that although from approximately August 2012 it did in fact pay the applicant a recall allowance for performing the duties as set out in the agreed statement of facts, it was not obliged to do so and the applicant was overpaid in respect of these amounts. The amounts were not quantified and the respondent did not seek any repayment from the applicant nor explain by way of evidence why it sought no such repayment. Nor did it explain by way of evidence why it decided to commence paying the applicant such allowances in mid-2012.

65    If anything, the position adopted by the respondent in this proceeding (until the cross-claim application) was that it made the payments despite believing the applicant was not entitled to them. Of course, in any given employment situation, there may be a multitude of reasons an employer would do this – including to keep a valuable employee from leaving, or as an alternative to litigating a claim. There are many plausible reasons, none of which were the subject of any evidence.

66    Further, although it was barely mentioned, I do not consider these circumstances demonstrate any unjust enrichment of the applicant at the expense of the respondent: see generally Pavey and Matthews Pty Ltd v Paul [1987] HCA 5; 162 CLR 221 on the “unifying legal concept” of unjust enrichment at 256-257 (Deane J, with whom Mason and Wilson JJ agreed); see also Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation [1988] HCA 17; 164 CLR 662 at 673. The applicant did not claim for most of the period during which she was paid additional allowances by the respondent: that is, she was paid three hour recall allowance from 30 July 2012 to 20 October 2014, and her claim period commenced from 17 September 2012, so the overlap is only two months or so.

67    Although Ms Lindner’s evidence provides some comparison between the applicant's overtime entitlements and the payments of recall allowance, what is missing, as I have noted, is any evidence about why the respondent paid the applicant recall allowance at all, when it defended these proceedings on the basis no recall allowance was payable.

68    Accordingly, there is no evidentiary basis for any claim by the respondent of unjust enrichment.

69    In summary, the claim has insufficient prospects of success, is not supported by the necessary evidence about whether the respondent paid the recall allowance believing the applicant was entitled to it, is made too late in the proceeding, has been the subject of at least two inconsistent positions by the respondent during the course of the trial, and was the subject of an express concession by counsel for the respondent during the course of the trial which then formed the basis on which both the Court and the applicant proceeded thereafter. Finally, the respondent (and the applicant) were on notice about the Court’s concerns on the issue of overtime during the liability hearing. For example, the following exchange took place between counsel for both parties and I:

HER HONOUR: Well, that’s why I keep coming back to this, but nobody wants to embrace it, so I’m not sure how far I can take it.

...

HER HONOUR: Why isn’t it overtime? ...

MR ALEXANDER: But it’s all overtime, isn’t it, your Honour?

HER HONOUR: Well, I don’t know, but no one has put their case like that.

MR ALEXANDER: No. We - - -

HER HONOUR: You don’t go there.

MR ALEXANDER: We don’t go - - -

HER HONOUR: Mr Rinaldi isn’t going there, but - - -

MR ALEXANDER: We don’t say that it’s – I think my learned friend used the word species of over time.

MR RINALDI: Well, that’s the way it appears, I’ve said, your Honour. From the way it’s set out in 25 with that heading Overtime, and then it comes underneath it. So it seems to be a – sort of an understanding amongst industrial parties to that effect. But I think it becomes clearer later on that it’s divided into on call and recall, and put in a clause with that title. On call/recall. So - - -

HER HONOUR: An[d] overtime is something else. And you’re both in heated agreement about that.

MR RINALDI: That – I think we are.

70    Finally, it is apparent that the amount in dispute on the cross-claim would be considerably less than $60,000, once the applicant’s overtime entitlements for the relevant period are considered. There are also the considerations of the amount of the Court’s resources and time which would be taken in litigating matters that, if they were to have been litigated, should have been litigated during the liability hearing. The costs to the parties (in a presumptively no cost jurisdiction), and in particular to the applicant as an individual, would be very significant, if she were to be compelled to defend a cross-claim made at this late stage. The interests of finality favour a refusal of the application to file a cross-claim.

71    Taken together, I am not persuaded it is in the interests of justice to grant leave to the respondent to file its cross-claim, and its application will be dismissed.

The nature of the duties to be included in the overtime calculation

72    In its supplementary final submissions, the respondent submitted that the applicant is bound by the description given in the statement of agreed facts relating to the nature of the duties and tasks performed for which she is entitled to overtime payments. It submitted these tasks are restricted, by reference to [7] and [10] of the statement and s 191 of the Evidence Act 1995 (Cth) to “making and receiving telephone calls, away from the Respondent’s workplace, relating to rostering of medical staff”.

73    This submission comes too late. It represents yet another ex post facto change in position by the respondent, which has been a feature of its defence of this litigation. The respondent did not object, based on s 191 of the Evidence Act, to the applicant’s evidence at trial about the nature of her duties. I described them at [82] of the liability judgment in the following terms: “when she answered and made telephone calls in order to rearrange rosters, replace staff that needed to go on leave or arrange locums to attend at the hospital”. More critically, at [16]-[17] of the reasons for the liability judgment, all of the relevant agreed facts about her duties are set out. Read fairly and as whole it is patent that it is a misdescription to assert that all the applicant did when she performed overtime work was make and receive telephone calls.

74    I propose to proceed on the basis of what I have set out at [16]-[17] of the liability judgment, read with [82], as a description of the nature of the work performed by the applicant when she worked overtime.

The calculation of the actual time spent performing overtime work

Applicant’s method

75    I have some difficulties with the method the applicant has proposed to calculate the actual time she spent performing overtime work. I accept that, in the absence of records of the duration of her overtime work, some estimation is inevitable and necessary and that – given the numerous occasions on which the applicant performed overtime work during the claim period – the most efficient and cost-effective way for the applicant to make these estimations is to do so by reference to a generalised equation or method. It would be a lengthy and thus potentially costly process for the applicant to estimate the duration for each given occasion by reference to more specific evidence such as the phone bills, the number of calls recorded on the phone bills which are likely to be related to one given roster change, the time period between such calls, and the identity of the persons she made the calls to.

76    During cross-examination at the quantum hearing on 29 June 2016, teased out the apparent lack of correlation between the amount of time the applicant’s method document suggests should be assigned for particular periods of overtime work on selected occasions and the duration of the calls out to which they relate, as recorded in the telephone bills on which Ms Lindner’s calculations were based.

Respondent’s method

77    There are also obvious limitations with the method the respondent initially proposed to calculate the actual time the applicant spent performing overtime work. Reliance on telephone bills recording the duration of calls made by the applicant alone ignores the time the applicant spent performing other aspects of the rostering work. It also ignores the time the applicant spent talking to doctors during calls made to her, including initial calls requesting a roster change and reply calls doctors made to the applicant in response to missing a call from her and after checking with spouses and the like that they are able to pick up or swap a shift. In the hearing on 29 June 2016, the respondent did not make any concessions about the need to include the incoming calls in the calculations, emphasising instead that Ms Polan conceded in her oral evidence that the initial incoming calls were usually brief.

78    During the quantum hearing, counsel for the respondent accepted that, given the respondent’s method (and its evidence) did not capture all of the tasks the applicant performed during overtime, it would be appropriate to “gross up” by a maximum of 50% the amount arrived at by reference to the Telstra bills. As I have noted, the respondent changed its position after the hearing in its supplementary final submissions, and sought to withdraw that concession. Instead, it reverted to the position that any payments should be calculated only by reference to the time represented in the Telstra bills.

The total amount the applicant is entitled to

79    Although in its submissions dated 15 June 2016, the respondent originally calculated the unpaid overtime the applicant may prima facie be entitled to for the period 1 October 2008-19 September 2014, the claim period the applicant has specified in her originating documents is 1 October 2008 to 17 September 2012 and I made findings about this claim period in my judgment on liability which I am not prepared to depart from now. As such, the applicant’s original claim period is the period in relation to which I will make my findings about quantum.

80    At [20] of the liability judgment, and on the basis of the facts agreed between the parties, I made the following findings:

There is no dispute between the parties that the applicant was paid an on-call allowance at all times when rostered on-call in accordance with the 2006 Agreement (cl 22.4 of the 2005 Award), the 2009 Agreement (cl 38.2.1(a) and (b)), and the 2011 Agreement (cl 104.2.1(a) and (b)). It is also agreed that:

(1)    the applicant was not paid any recall payments under the 2006 Agreement;

(2)    the respondent did not commence paying the applicant any three hour minimum recall payments until in or about August 2012; and

(3)    the respondent did not commence paying the applicant any double time recall payments until in or about November 2013.

81    Thus, on the facts as already found in this proceeding, the applicant began receiving some extra payments for the work she was performing outside her ordinary hours (in addition to the on-call allowance which she had always been paid) from approximately August 2012. Before that time, she did not receive any extra payments apart from the on-call allowance and the findings I have made about her entitlement to overtime can be fully applied. The next question thus is: what orders should be made in relation to the period “in or about August 2012” to 17 September 2012 (when her claim ends, on the pleadings).

82    In determining this question, Ms Lindner’s evidence should be considered. In her affidavit, she deposed to having made one calculation of overtime entitlements based on phone bills to 19 September 2014 and another for the period 1 October 2008 to 31 July 2012. She describes the latter date as “the date from which the Respondent erroneously paid recall allowance to the Applicant”. The evidence in this proceeding suggests the date was actually 30 July 2012.

83    Ms Lindner also deposed that, to her knowledge, other payroll staff employed by the respondent calculated the amount which the respondent contends was erroneously paid to the applicant by way of recall allowances. I note these are of course raw numbers, and not numbers which take into account what the applicant should have been paid from 30 July 2012 onwards by way of overtime. The total is said by Ms Lindner to be $60,271.27 and she exhibits to her affidavit a payment summary (exhibit EAL-3) recording the recall payments made to the applicant.

84    It is by reference to this payment summary that the answer to the question posed can be given. On the second page of exhibit EAL-3, there is an entry which reads:

85    This source document establishes, on the balance of probabilities, that the applicant was indeed paid double recall allowance on and from 30 July 2012. In my opinion, when regard is had to the comparatively smaller nature of the overtime payments (so much can be seen from Ms Lindner’s other evidence) it is apparent that, from 30 July 2012 to 17 September 2012, the applicant would not have received any more money if she had been paid overtime entitlements instead of recall payments.

86    Accordingly, I do not propose to order the respondent make any payments in respect of the period 30 July-17 September 2012. That means the calculations set out in Ms Lindner’s affidavit can be used, rather than the modified figures extending to the end of the applicant’s claim period, which formed part of the respondents’ supplementary final submissions. At [13] of her affidavit, Ms Lindner calculates the applicant’s total base entitlement for the period 1 October 2008-31 July 2012, using the respondent’s method, to be $18,579.52. Although this figure calculates the applicant’s entitlement up until 31 July 2012 rather than to 29 July 2012, the day before the applicant started receiving recall payments and so the end of the period she is entitled to overtime payments for, I do not consider the additional two days to be significant in the context of these proceedings and I do not intend to make any reduction for them.

87    Under the relevant agreements, management and administrative officers such as Ms Polan are entitled to be paid at the rate of time and one half for the first two hours of overtime and double time thereafter. This is not in dispute between the parties.

88    At [86] of the liability judgment, I said:

It is not possible to discern from the schedule what period of time the applicant worked on each occasion alleged. As the general allegation which I have reproduced above acknowledges, the times no doubt varied. It may have depended, for example, on whether the applicant had to make one phone call or five. It may have depended on the length of each phone call. It may have depended on whether, as a result of one phone call, other phone calls had to be made. The applicant was entitled, in my opinion, to be paid for the periods she worked in accordance with the overtime rates in the applicable award or agreement. Unless the award or agreements otherwise provided (and it does not appear to me that they did), if she only worked for ten minutes in one period, then the proportion of her hourly rate which would be subject to payment at time and a half, or double time, would only be that ten minutes.

89    Consistently with that finding, I consider the sum must be fixed by reference to the time actually worked by the applicant, rather than periods of time during which she did some work, and did other non-employment related activities as well. There is no basis in the industrial agreements, or otherwise in the evidence, to consider she was entitled to be paid for “waiting time” of any significant amount. However, some common sense must be applied. If the applicant received a call from a doctor who needed a shift changed and the call took five minutes, then she spent fifteen minutes searching for an appropriate replacement and placing a call to that person, if the applicant then had to wait ten minutes for the call to be returned, I would be inclined to say that is a continuous period of performance of her employment duties. If, on the other hand, the prospective replacement did not call the applicant back for two hours, I do not consider that those two hours are properly described as “waiting time”, or as any other aspect of performing her duties of employment which entitle her to be paid for the whole of the time.

90    The applicant has not structured her evidence in this way. Rather, through use of her ‘method’, and a rounding up process to one hour periods, the total amount of hours she puts forward bear insufficient resemblance, in my opinion, to the hours of overtime she actually worked. At least on the evidence as she has presented it, she has failed to prove that the number of hours she has entered for each event where she had to make roster changes actually represents the hours she worked, or a sufficiently close approximation of them.

91    There are other difficulties with the applicant’s evidence given in the tables she has produced, and I accept the challenges made by the respondent, in relation to the following matters.

92    The time estimated in the applicant’s tables is disproportionate to the time that the Telstra bills show was spent on outgoing phone calls. The Telstra records show that most outgoing calls made by the applicant were under a few minutes, although there are some longer calls. Correctly, as I have found above, the applicant maintained that this did not represent all the work she did. However, there was insufficient evidence about how – if a call to a possible replacement doctor took only a few minutes – the rest of an hour, as claimed by the applicant, was occupied. While I have found that making and receiving calls was not the entire content of the work the applicant performed, I consider it was the most central aspect of her overtime role. In the absence of any detailed evidence about what she did with the rest of her time on each occasion of overtime work, there does in my opinion need to be some proportionate relationship between the time spent on the calls and the other aspects of her overtime work flowing from making calls to try and reorganise rosters. There is no such proportionate relationship on the applicant’s evidence.

93    It would appear there was some double counting in the applicant’s calculations, and overlaps with her ordinary hours. The applicant accepted as much during cross-examination:

So in the case of the most recent affidavit, 26 June, and the annexure – the schedule to that – you’ve done that in the third entry that you mention this morning, 7 October 2008?---Yes.

The time of the incoming call was 7.05?---Yes.

O and G, I take it, is Obstetrics and Gynaecology?---Yes.

It’s the ward and you’ve only noted that down as one hour because, if you went for two, it would have taken you to 9.05, which is well into ordinary time?---Yes. Yes.

But you haven’t done that for 6.50, for example, where you’ve gone to 8.50, which is two hours?---Yes.

So do you accept there’s some double counting there with ordinary time and double time for 20 minutes?---Yes. Yes.

So your claim would have to be reduced to that extent?---Yes.

And, similarly with 9 October 2008, the very same figures – 6.50 incoming call. You claim two hours, which would take you to 8.50, which includes 20 minutes of ordinary time?---Yes.

94    One of the applicant’s responses to this was that there were other places where she had underestimated how long she worked and it all evened out. I do not accept this explanation. The applicant constructed the schedules (of which she produced four successive versions) avowedly on the basis of her estimates, and avowedly by ‘rounding up’ the time she spent performing these tasks. I do not accept that the tables she produced have any elements of underestimation.

95    As the respondent submitted, there was at least one other kind of double-counting, or overlap. There were entries in the tables where the applicant had given an estimate of time spent on a task, and the estimate actually ran into the time the applicant recorded as commencing a further task. The example given by the respondent in its supplementary final submissions will suffice to illustrate the point.

96    In the entry for 24 October 2008, the applicant records incoming calls at 5.50 am and 7.20 am. She enters two hours of overtime for the first call, at 5.50 am. That suggests she was performing work in relation to that 5.50 am call until 7.50 am. However, she also records one hour of overtime for the 7.20 am call, although for at least half an hour of this time she has given evidence she was working on filling the roster in relation to the first call.

97    To her credit, in her evidence in chief, the applicant also accepted there were errors in the tables she had produced. She gave the following evidence:

Can you work backwards and how many days 485.66 should be?---Well, no. It’s by those seven hours and those seven hours have to come out of that actual time spent and so I can only see 1 January, which is two hours, and the 26th, which is one hour.

So is that – you’re saying three hours, not seven?---Yes. I think I’ve assumed that there must have been a Monday but that’s not a public holiday. Sometimes you get the Monday after the weekend if it was a Saturday/Sunday public holiday. I think that’s actually an error. I apologise for that.

Well, the court has to have comfort that this is accurate. Have you checked this document?---I’ve checked it 100 times but I’ve obviously missed that one.

98    I accept the applicant attempted to prepare the tables as diligently and accurately as she could. Despite her best efforts, there were still inaccuracies, and the ones identified were not ones the applicant herself picked up. Nevertheless, the existence of some inaccuracies tells against substantial reliance being put on the details of the tables. However, my principal reason for not relying on the tables as the most appropriate way of calculating the applicant’s entitlements stems from the matters I have set out at [79]-[92] above.

99    In her final written submissions, which provided revised calculations by way of submissions rather than evidence, the applicant asserted she had removed all double-counting. There is simply no way to gauge the accuracy of this statement. The figures provided by the applicant have been revised now on several occasions, and I am not persuaded the Court can be confident that all the weaknesses exposed during cross-examination on the basis of the figures then relied upon by the applicant have been removed or corrected.

100    Given that I do not consider the tables produced by the applicant sufficiently estimate the time she actually spent performing tasks related to her employment during these overtime periods, the question is whether I should find she has failed to prove her case at all, or whether I should find there is a different approach to calculating her overtime hours which better estimates the work she is likely, on the balance of probabilities, to have performed.

101    In the circumstances, it would be inappropriate to find the applicant has not proved she worked any hours of overtime during the claim period. That is so especially since the respondent does not dispute she did perform work outside her ordinary hours, and has itself adduced evidence to quantify what it accepts to be part of that work. The applicant has given probative evidence about the nature of her other duties, and I am satisfied this is not a situation where she has failed to prove any loss. In these circumstances, the Court is required to do its best on the evidence before it to quantify her loss: see, in the context of damages, Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 4 FCR 450; 57 ALR 167 at 183; The Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; 174 CLR 64 at 83; Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd [2007] FCAFC 40; 157 FCR 564 at [35], [99]; Tabet v Gett [2010] HCA 12; 240 CLR 537 at [136]; TCL Air Conditioner (Zhongshan) Company Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83; 232 FCR 361 at [39], [164].

102    The Telstra bills provide a reliable basis for assessing at least some of the work performed by the applicant. As I have found, they do not completely represent the work she did for at least two reasons: they do not record incoming calls, and they cannot quantify the time the applicant spent checking contact details and considering who to call and who could be placed on which roster for the various departments. I accept the applicant’s evidence, and submissions, that the tasks were more complex than simply making and receiving calls. I also accept there was likely to have been short periods of time in between calls when the applicant was not able to do anything else, and where it is appropriate to see her as continuously performing work between calls. How often this occurred is not possible to gauge from the way the evidence has been collated and presented.

103    In these circumstances, the respondent’s initial concession during oral argument was, in my opinion, a fair approach. That is, if one adds 50% to the entitlement figure based on the hours the applicant spent on outgoing calls, as represented by the Telstra bills, then there is an appropriate allowance for incoming calls and for the other tasks I have found in the liability judgment the applicant performed during these overtime periods.

104    Although the respondent formally withdrew this concession in its supplementary final submissions, that does not preclude the Court adopting the approach suggested, if it considers it is the best estimate of what, on the balance of probabilities, were the hours worked by the applicant by way of overtime during the relevant period. I am satisfied this is the case.

105    Accordingly, I find the applicant is entitled to payment for the time she spent on outgoing calls between 1 October 2008 and 31 July 2012, as reflected in the Telstra phone bills, plus 50% of that figure, “grossed up” to allow for the time she spent taking incoming calls and performing other tasks during her overtime not comprising making and receiving telephone calls. As I have noted, using the Telstra bills, Ms Lindner calculated the applicant’s total base entitlement for the period 1 October 2008-31 July 2012 to be $18,579.52.

106    I note that this total base figure differs from the total base entitlement figure that the respondent included in Sch B to its supplementary final submissions, and the difference is not solely explained by the fact that Ms Lindner’s affidavit calculates entitlements up to 31 July 2012 and the Sch B table calculates entitlements up to 17 September 2012. For example, the base entitlement figures for the year 2011 in the two sources appear to differ by approximately $200.00. The respondent did not explain this difference in its base amount calculations. Given Ms Lindner’s affidavit is in evidence, and Sch B is only a submission, I intend to rely on the figures in that affidavit. Therefore, the total sum of the applicant’s base entitlement is $18,579.52 plus 50%, which is $27,869.28.

107    There was no agreement between the parties on whether the applicant is entitled to prejudgment interest on her overtime entitlements. As I have noted, the respondent in its supplementary final submissions introduced a new area of dispute, by submitting that the Court should decline to order interest because the recall payments made to the applicant compensated her sufficiently. I assume this is because they were larger than her overtime entitlements during that period (so she in effect received that money in any event), and the difference could on the respondent’s view be seen as compensating the applicant for her claim period interest as well.

108    I accept the respondent’s additional submissions about interest to some extent. As I have noted, there is no evidence about why the applicant was paid the recall allowances by the respondent, in circumstances where the respondent denied she was entitled to them. Notwithstanding the absence of any such evidence, Ms Lindner’s evidence establishes the applicant did receive approximately $60,000 in recall payments up until 20 October 2014. Ms Lindner’s evidence also indicates that the recall payments were most likely larger than the overtime payments the applicant would have received, based on my findings of what her entitlements were under the industrial instruments. So the applicant did have the use of this money at the time she would have been paid overtime from 30 July 2012 until 20 October 2014. Since the recall payments were a larger sum, there is force in the respondent’s submission that the applicant received this money in her hands on and from 30 July 2012, and it could in one sense compensate her for the interest on her overtime payments that she would otherwise have been entitled to dating back to the start of her claim period in October 2008.

109    Taking a somewhat broad brush approach given the state of the evidence (or lack of it), I consider a fair outcome is that the applicant not be awarded any interest on her overtime payments from the start of her claim period until the end of the period she received recall payments. That means interest should only be payable from the time her recall payments ceased – which on the evidence appears to be from 21 October 2014 until the date of this judgment. She is entitled to some interest for being kept out of her overtime payments for the ensuing years after her recall payments, and then employment, ceased.

110    The parties will be directed to agree on the calculation of interest for this period. The Court’s practice notes have been updated since the parties’ last submissions, and the relevant practice note that the interest should be calculated in accordance with is now Practice Note GPN-INT. The parties should calculate the interest on the total grossed-up base entitlement figure ($27,869.28) for the period of 21 October 2014-31 January 2017, in accordance with the practice note.

111    If, as has been the Court’s experience to date, the parties are unable to agree on a calculation, they will directed to attend a mediation with a Registrar of this Court to resolve the calculations, once and for all. The Registrar will be authorised to determine the interest sum if the parties cannot agree. The dispute between the parties must be brought to an end, as the costs, resources and time have become disproportionate to the sums involved.

The applicant’s entitlement to double time payments where an eight hour break was not afforded

112    I do not accept that the applicant is entitled to double time payments for overtime performed without a break of eight hours from her ordinary work. In my opinion, cl 25.6 of the 2005 Award and cl 38.2.1(f) of the 2009 Agreement, in their use of the phrase “resumes or continues work” and their express reference to the instructions of an employer, are intended to deal with circumstances of recall to duty and not overtime. That is consistent with the weight I have given in the liability judgment to the role of an employer’s instructions in determining whether work is performed on recall or not.

113    There would very often not be an eight hour break between an employee’s ordinary hours and overtime. The applicant’s approach would render the double time entitlement payable on most overtime worked. I do not accept that was the purpose or intention of these clauses. Rather, they are designed as a disincentive to employers recalling employees to duty without giving them a sufficient break.

Conclusion

114    In accordance with the approach I have decided is appropriate, I find the applicant worked overtime by way of making and receiving calls in order to find replacement doctors and to organise those doctors into particular shifts in particular departments. These tasks are fairly represented by the Telstra bills analysed by Ms Lindner. I also find that the applicant worked on other tasks during her overtime work, including receiving calls from doctors, taking time to think through which doctors to call and finding their other details, and consulting rosters to establish which doctors were suitable or available for which departments. I have found that the estimate of the applicant's total entitlement based on the Telstra bills should be grossed up by 50% to take this work into account.

115    I have found the applicant was not entitled to double time rates where an eight hour break was not afforded. I have also found she was not entitled to claim for long “waiting periods” between calls, although shorter periods are properly considered part of her overtime duties, and are in my opinion sufficiently covered by the additional 50%.

116    Therefore, the applicant is entitled to the sum of $27,869.28 by way of overtime payments, with interest to be calculated and agreed by the parties in accordance with the Court’s reasons and Practice Note GPN-INT.

Associate:

Dated:    27 January 2017