Adam Hildebrandt v Coffee Smugglers Pty Ltd T/A the Den Cafe and Bar
[2023] FWC 2267
•6 SEPTEMBER 2023
| [2023] FWC 2267 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Adam Hildebrandt
v
Coffee Smugglers Pty Ltd T/A The Den Cafe And Bar
(C2023/2331)
| DEPUTY PRESIDENT EASTON | SYDNEY, 6 SEPTEMBER 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection – respondent claimed that the applicant was not an employee – sale of business – new employer – “trial shift” – employment in hospitality – application properly made – FWC’s jurisdiction properly engaged. Application to deal with contraventions involving dismissal
Mr Adam Hildebrandt is a full-time university student completing a Bachelor of Arts with a major in history. He has a condition called autism and is at the lower end of the spectrum.
On 18 June 2022 Mr Hildebrandt started work at the Den Café and Bar in Engadine, NSW. He was employed as a Casual Food and Beverage Attendant Grade 1 under the Restaurant Industry Award 2020 and was paid $27.46 per hour. Mr Hildebrandt said “this was my first ever job and I was very excited.”
Mr Hildebrandt’s first employer was Go Beyond Consulting Pty Ltd. On 27 March 2023 Coffee Smugglers Pty Ltd (Coffee Smugglers) purchased the Den Café and Bar business. Mr Hildebrandt’s employment with Go Beyond Consulting Pty Ltd ceased at that time.
On 27 March 2023 Mr Hildebrandt and others were invited to a “team meeting” by Coffee Smugglers’ management personnel “so we get to know each other better.” On Saturday 1 April 2023 the following message was sent to Mr Hildebrandt and others:
“Hey guys,
Can you please send me your availability for the next week?
Additionally, we are organising a meet and greet this Monday at 5 pm, which will continue for three hours following dinner with The Den members.
Kindly ensure that everyone can attend, and let me know if anyone has any conflicts. I'm looking forward to meeting all of you and getting started with this new team.”
Mr Hildebrandt gave the following account of the “team meeting” on Monday 3 April 2023:
“At the Staff Meeting I was invited to continue working at DCB for Coffee Smugglers. I was offered, and I accepted, a shift from 18:00 to 22:30 hours on 5 April 2023. There was no mention of a trial period.
The Staff Meeting ended after approximately one hour.”
Mr Hildebrandt then worked his shift on Wednesday 5 April 2023. During that shift he was supplied with an "Employee Details" form that required him to provide contact details, tax file number, bank details, superannuation details and shift availability. During the shift Mr Hildebrandt also asked about his hourly rate but did not receive an answer.
The next day Mr Hildebrandt followed up his enquiry about his rate of pay by text message to “Nishan”, who was a manager. Nishan is no longer employed by Coffee Smugglers.
It seems that Mr Hildebrandt's inquiry about his pay was not well received by Nishan. In short Nishan said that Coffee Smugglers would pay “23$/ hour flat” and was not prepared to pay $27.46 per hour. Mr Hildebrandt was not offered any further shifts.
Two days later Mr Hildebrandt was paid cash for the hours he worked on 5 April 2023.
On 24 April 2023 Mr Hildebrandt made an application to the Fair Work Commission under s.365 of the Fair Work Act 2009 (Cth) (the Act). Mr Hildebrandt claims that he was dismissed from his employment with Coffee Smugglers and that the dismissal contravened the general protection provisions of the Act.
Coffee Smugglers maintains that it never employed Mr Hildebrandt and therefore he was not ever dismissed.
“A person who has been dismissed”
Mr Hildebrandt only has capacity to make a claim if he is “a person who has been dismissed” (per s.365(a)). “Dismissed” is defined in s.12 of the Act by reference to s.386. Section 386 is in the following terms:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) …”
Section 386 refers only to “employment” ending. As such, the reference to a “person” who has been dismissed can only be a reference to an employee who has been dismissed.
The Commission’s Jurisdiction
The Fair Work Commission can deal with applications under s.365 of the Act by way of conciliation or mediation under s.368. If the Commission is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful it can issue a certificate under s.368(3). Section 370 imposes a substantial restriction upon applicants by preventing a general protections court application being made unless the FWC has issued a certificate under s 368(3)(a) in relation to the dispute (Ward v St Catherine’s School [2016] FCA 790 at [3]).
The Full Court in Coles Supply Chain v Milford [2020] FCAFC 152, (2020) 300 IR 146 (Milford) made the following relevant observations about the FWC’s capacity to deal with applications under s.365 and antecedent disputes about dismissal:
(a)The FWC’s non-determinative powers to deal with a dispute under s.368 are only enlivened if an application is properly made under s.365. The proper making of an application under s.365 is an essential precondition to the FWC’s authority to perform its functions under s.368 (at [51]);
(b)a dispute about whether a person has been dismissed raises an antecedent issue going to the existence of the FWC’s authority to compel an employer to participate in its conciliation processes (at [65]);
(c)it is open for a respondent to assert that there has been no dismissal, which gives rise to a dispute on that question that falls to be determined under s.365 (at [67]).
(d)that dispute must be resolved before the FWC’s powers under s.368 can be exercised at all (at [67]);
(e)the FWC is entitled to determine the limits of its authority to deal with a dispute under s.368, although it has no authority to conclusively determine those limits (at [43]).
(f)in so determining the limits of its authority the FWC may determination matters of fact (at [71]);
(g)the Federal Court or the Federal Circuit Court has the power to judicially determine whether a person is entitled to make an application to the FWC (at [74]). The FW Act establishes alternative pathways for an applicant and prospective litigant and a court might decline to recognise an “application” or resulting certificate is valid when determining an objection to competency of a legal proceeding under s.370 of the FW Act (at [75]); and
(h)the determination by the FWC is not authoritative in the sense of being final. If the FWC errs in determining a question upon which its authority depends, it will commit jurisdictional error by wrongfully denying that it has the authority to “deal with the dispute” under s.368 of the FW Act (at [79]).
Was the Applicant ever employed by the Respondent?
Coffee Smugglers argued that Mr Hildebrandt only ever worked a “trial shift”:
“To provide you with a clear understanding of the situation, I would like to outline the events that transpired. The individual in question approached our establishment expressing an interest in the position of a waiter. We invited him to participate in a trial shift, which is a standard practice in our industry to assess the suitability of potential employees for the role.
After the trial shift, accessing his work , we communicated the rate of pay that the company would offer if the individual were to be hired. Unfortunately, the individual disagreed with the offered rate and expressed his disagreement with our decision. As a result, we agreed not to proceed with the hiring process.
Since the individual did not advance to become an official employee, we compensated him for his time and efforts during the trial shift by providing cash payment. This payment was made in good faith as a gesture of gratitude for his participation, despite the fact that he did not meet our requirements for employment.”
Mr Hildebrandt denied ever being told that it was a trial shift.
Mr Sonam Pandey is the owner of Coffee Smugglers and gave evidence at hearing. Mr Pandey met Mr Hildebrandt at the team meeting/meet and greet on 3 April 2023 but did not have any direct contact with Mr Hildebrandt in relation to working on 5 April 2023. Mr Pandey explained that Nishan the manager made these arrangements and Nishan was dismissed by Coffee Smugglers after a short period of employment.
In essence Coffee Smugglers argued that the "trial" was part of a pre-employment “hiring process” that meant that Mr Hildebrandt was not an employee unless he passed the trial.
Coffee Smugglers was not obliged to employ any of the previous owner’s employees and it is possible that Coffee Smugglers might have chosen not to employ Mr Hildebrandt (or any of the others). However all of the communications from Coffee Smugglers to Mr Hildebrandt (and the employees that worked for the previous owner) were consistent with Coffee Smugglers looking to employ each of the employees: there were several references to meeting the "team" and "getting started with this new team", as well as posting "this week's roster" and the like.
There was no evidence of Coffee Smugglers having any concerns about Mr Hildebrandt's performance on his “trial shift”. It seems from the later SMS exchange between Nishan and Mr Hildebrandt that Coffee Smugglers was content to offer Mr Hildebrandt ongoing work at its nominated rate. It also seems from the SMS exchange that the only reason Mr Hildebrandt was not offered more work was his insistence that he be paid at the award hourly rate (ultimately this being a matter for a Court to decide).
There is no suggestion that Mr Hildebrandt performed work as a volunteer. Nor was there any suggestion that he provided services as an independent contractor. Before the shift and also during the shift he was provided with an Employee Details form, which is consistent with Mr Hildebrandt becoming an employee of Coffee Smugglers (if he was not already employed).
Coffee Smugglers submitted that “we believe it is essential to clarify that the individual was never an employee of The Den and was never entitled to the benefits and protections associated with employment. His engagement with our establishment was solely for the purpose of a trial shift, which is a customary practice within the hospitality industry.”
Coffee Smugglers did pay Mr Hildebrandt for the shift and in the SMS exchange with Nishan there was no suggestion that he would not be paid for the shift.
Coffee Smugglers complained that it would be highly impractical to "employ" every person who works a "trial shift". Coffee Smugglers claimed that a trial shift is customary within the hospitality industry. Neither argument assists Coffee Smugglers. If a person is employed, even for one shift, then certain obligations arise for employers and, as Coffee Smugglers might now appreciate, certain protections are afforded to employees.
For the above reasons I find that Mr Hildebrandt was an employee of Coffee Smugglers and that he was “an employee who was dismissed” from his casual employment.
A conference will shortly be convened to deal with Mr Hildebrandt’s claim against Coffee Smugglers.
DEPUTY PRESIDENT
Appearances:
Mr P Hildebrandt, for the Applicant
Mr S Pandey, for the Respondent
Hearing details:
2023.
Sydney (By Video using Microsoft Teams)
August 3.
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