Alan Edge v Titanium Security Australia Pty Ltd

[2015] FWC 5279

[2015] FWC 5279

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alan Edge
v
Titanium Security Australia Pty Ltd
(U2015/4264)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 5 AUGUST 2015

Application for relief from unfair dismissal – no reasonable prospect of success - applicant not an employee of the respondent.

[1] This decision deals with an application made by Titanium Security Australia Pty Ltd (Titanium) to dismiss an unfair dismissal application made by Mr Edge.

[2] Mr Edge’s application has been the subject of a number of hearings dealing with various jurisdictional issues and involving different parties.

[3] Before dealing with the Titanium application, which has been made pursuant to s.587(1)(c) of the Fair Work Act 2009 (the FW Act), I have set out a brief summary of the history of the matter. That history discloses a complex series of contractual and employment arrangements which reflect the business model operated by Titanium and a number of other businesses. I note that the information provided to me in these proceedings was largely directed at establishing who was not Mr Edge’s employer and was not particularly helpful in making any positive finding possible. The approach adopted by the various entities who asserted that they were not Mr Edge’s employer bordered on the farcical and reflected what I consider to be business arrangements reflective of dubious business ethics.

[4] Mr Edge’s application was lodged in the Fair Work Commission on 24 March 2015. In his application Mr Edge asserted that he was employed by Titanium Security Pty Ltd (Titanium) from 17 March 2014 to 6 March 2015. He asserted that the termination of his employment was unfair.

[5] In its response to Mr Edge’s application, Titanium asserted that Mr Edge was not employed by it and that he worked under a labour hire arrangement with Group 4 Securitas Pty Ltd (Group 4). Titanium advised that:

The Applicant was not an Employee of the Respondent.

“1. The Applicant’s services were provided to the Respondent by way of a labour hire arrangement organised by Group 4 Securitas Pty Ltd ….

2. The Respondent and Group 4 Securitas Pty Ltd are not related bodies corporate.

3. As a result of complaints received by the Respondent relating to the Applicant, the Respondent directed Group 4 Securitas Pty Ltd to not assign the Applicant to provide services for the Respondent.

….” 1

[6] Mr Edge’s application proceeded to conciliation but was not resolved through that process. It was referred to me for determination.

[7] Throughout the initial proceedings in this matter, Mr Edge has generally adopted the position that he understood that he was employed by Titanium but that, if evidence of an alternative employer was provided, he would consider that.

[8] On 29 April 2015 Titanium lodged an application pursuant to s.587 of the FW Act through which it sought that Mr Edge’s unfair dismissal application should be dismissed on the basis that it had no reasonable prospect of success.

[9] At a telephone Directions conference on 7 May 2015 I advised the parties that the question of whether Titanium was Mr Edge’s employer would be considered at a hearing on 1 June 2015. Directions specifying the material to be provided by both parties were issued.

[10] Following this conference I am aware that Mr Edge contacted both the FWC conciliator who convened the conciliation conference and my Associate. At that time he indicated that he was considering withdrawing his application and lodging a second application against Group 4.

[11] On 20 May 2015 Titanium provided advice in the following terms:

“We refer to the above matter and the directions of the Senior Deputy President issued on 7 May 2015.

We advise that since the Senior Deputy President issued the directions referred to above, there has been further communication between the parties resulting in the Applicant filing a Form F1 seeking to rename the employer and respondent to the Applicant’s claim.

In these circumstances, the parties by agreement request that the Senior Deputy President’s directions of 7 May 2015 be stayed until such time as the Applicant’s interlocutory application be resolved. The parties further seek that the hearing date of 1 July 2015 be vacated.

We submit the above requests will best ensure fairness in resolving the dispute.

….” 2

[12] Mr Edge subsequently confirmed his request to amend the original application so as to change the name of the respondent to Group 4. The application was the subject of a hearing on 10 June 2015. Advice of this hearing and directions were sent to a nominated officer at Group 4.

[13] On 9 June 2015 Titanium advised that it did not object to the amendment of the application so as to delete any reference to Titanium and replace it with references to Group 4. Titanium advised that I should rely on the recent Full Bench decision in Djula v Centurion Transport Co Pty Ltd 3as authority for such an approach.

[14] The hearing on 10 June was via a video link between Adelaide and Sydney. Mr Gorval appeared as agent for Titanium pursuant to an unopposed grant of permission made under s.596(2)(a). Mr Edge represented himself. Group 4 did not participate in this hearing.

[15] I note that, at the outset, there was no dispute that Titanium issued an Employment Separation Certificate to Mr Edge in which it asserted that it dismissed him. Titanium assert that this was issued in error. Notwithstanding this, at this hearing Mr Edge did not dispute that he was employed by Group 4 and not by Titanium. Titanium advised that it was not an entity associated with Group 4 and simply had a contractual relationship with Group 4 for the provision of contract labour. Titanium also reiterated that it was content to have Group 4 replace it as the respondent in this matter.

[16] Mr Edge’s motion to replace Titanium with Group 4 was relisted for a further hearing on 26 June 2015 to enable Group 4 to participate. Group 4 provided some information in preparation for this hearing and unsuccessfully sought to provide other material privately to the FWC. The information provided confirmed that Mr Edge signed a Casual Labour Hire Handbook issued by Group 4 which confirmed he was employed by Group 4. Notwithstanding this, Mr Edge was variously paid by Groover Payroll Pty Ltd (in Liquidation) but from December 2014, and until the termination of his employment, by TNT Facility Management Pty Ltd (TNT).

[17] At the hearing on 26 June 2015 Mr Raza appeared for Group 4 and ultimately sought an extended opportunity to advise whether Group 4 regarded itself as Mr Edge’s employer.

[18] I also note that TNT was advised of this hearing but that it did not participate in the matter.

[19] At a hearing on 20 July 2015 Mr Zada, of counsel was granted permission to represent Group 4 pursuant to s.596(2)(a). The Group 4 position was that, whilst it was arguable that it was Mr Edge’s employer at one time, TNT was Mr Edge’s employer at the time of the termination of his employment. Group 4 asserted that it was engaged by Titanium to provide security officers and that it then subcontracted that service to TNT. There was no suggestion that Mr Edge was advised of this other than the payment of his wages by TNT. Notwithstanding this, in the course of this hearing Mr Edge advised that he no longer sought to amend his application so as to argue that Group 4 was the employer. The Titanium motion to dismiss Mr Edge’s application was relisted on that basis.

[20] This motion was the subject of a hearing on 3 August 2015. The Titanium position was to reiterate that it did not employ Mr Edge. Titanium relied on the Group 4 Casual Labour Hire Handbook signed by Mr Edge on 17 March 2015 as a clear indication that he was employed by Group 4 and not by Titanium. 4 Titanium provided a Tax invoice from Group 4 for the provision of security manpower at the location where Mr Edge worked.5 Titanium also provided an ASIC extract which confirmed that it had no corporate relationship with Group 4.6 Titanium provided copies of payroll advices with respect to Mr Edge and reflecting payments made to him by TNT.7 It also provided a Tax File declaration signed by Mr Edge on 1 February 2015.8 Further, it provided a letter from Mr Waheed of TNT, dated 17 June 2015 in which Mr Waheed asserted that TNT was hired as a subcontractor in December 2014 by Group 4 and detailed various steps taken to advise security officers working for Titanium that it regarded itself as the employer.

[21] Additionally, the evidence of Mr Davies, a Titanium manager was:

“4. Titanium is a security company which operates through the use of labour hire arrangements. Titanium sources clients in need of security and patrol services and then engages companies such as Group 4 Securitas Pty Ltd (Group 4) to provide security officers to patrol the sites of Titanium’s clients.

5. Although Titanium does not employ the security officers whom are the subject of Titanium’s labour hire arrangements, Titanium reserves the right to direct the Group 4 in the assignation of security officers to the sites of Titanium’s clients subject to their request.

6. It was in the practice of Titanium to liaise directly with any labour hire security officers when seeking reports about the security of its clients’ premises.” 9

 [22] Mr Davies’ evidence went to its assignment of Mr Edge and his completion of the Employment Separation Certificate, which he signed without realising that Titanium was not Mr Edge’s employer. Mr Davies’ evidence was that Titanium had never paid Mr Edge and had only paid Group 4 for the work Mr Edge had undertaken. Mr Davies gave evidence that:

“10. On or about 6 March 2015, following a complaint received from a client of Titanium regarding the Applicant’s conduct at one of its sites, Titanium directed Group 4 to cease to assign the Applicant to Titanium’s clients’ sites.” 10

[23] In the hearing, Mr Davies conceded that the Annexure A to which he referred was incorrect and that he simply provided telephone advice to Group 4 to the effect that Mr Edge could no longer work on Titanium work sites.

[24] Mr Edge’s position was that he understood that he was an employee of Titanium. Mr Edge agreed that he had received payments from TNT Payroll Services Pty Ltd but that he understood that this was simply a payroll service. He reported for duty and undertook work at the direction of Titanium. He acknowledged that, at various times he had signed employment related forms but he understood that these were simply for payment purposes and did not impact on the extent to which he regarded himself as an employee of Titanium.

[25] Mr Edge provided correspondence which indicated that Titanium was contractually obliged to advise its client if security personnel were not direct employees and had not done so. Further, that security personnel wore Titanium uniforms such that they appeared to be Titanium employees.

[26] Section 587(1) states:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.”

[27] If Mr Edge was not employed by Titanium his application can have no reasonable prospect of success.

[28] Whilst it may be the case that Titanium did not comply with its contractual obligations, the evidence before me confirms that Titanium was not Mr Edge’s employer such that the application simply cannot succeed.

[29] I have adopted the position that Titanium and other corporate entities implemented practices which represented substantial unfairness on Mr Edge in terms of the absence of reasonable advice to him about who was his employer at any one point in time. Whilst the motion to change the respondent may have ultimately enabled clarification of just who was the employing entity, the only conclusion available to me at the present time is that Mr Edge’s application lacks any reasonable prospect of success because Titanium was not the employer. In reaching this conclusion I have had particular regard to the extent that Titanium is a completely separate entity to both Group 4 and TNT. I am not satisfied that the evidence indicates that Titanium is operating in an arrangement with either Group 4 or TNT so as to be some form of collective employer of Mr Edge. The material before me does not enable a definite conclusion about the extent to which Group 4 and TNT are operating some form of shared employment arrangement. In this matter, I have concluded that whilst Mr Edge may have been understandably uncertain about the employment related forms which he signed, such as the Tax File Declaration and an employment application for TNT, these forms do not support his proposition that he was an employee of Titanium. The fact that Mr Edge was provided with Titanium uniforms, was subject to Titanium’s direction and was provided with minimal information about who actually employed him at any one point in time, created an understandable confusion. Further, the Employment Separation Certificate provided to him by Titanium reflects both an error on Mr Davies’ part and the convoluted and poorly documented business and employment arrangements under which security guards performed work at the direction of Titanium. Notwithstanding this, I have concluded that Mr Edge was a labour hire employee and cannot be regarded as a direct Titanium employee. The information before me suggests that Mr Edge was most likely an employee of TNT. Accordingly, he may elect to pursue an application of this nature against TNT but will need to establish exceptional circumstances so as to enable an extension of the 21 day time limit to do so.

[30] For the avoidance of doubt, nothing in this decision should be taken as endorsing the business model, or of the behaviour of Titanium, or, for that matter Group 4. As TNT has not participated in these proceedings I make no comment about its position. I have, however, concluded that any confusion on Mr Edge’s part about who was his employer is perfectly understandable.

[31] An Order (PR570088) dismissing the application will be issued accordingly.

Appearances:

A Edge on his own behalf.

S Gorval agent representing Titanium Security Australia Pty Ltd.

S Raza and P Zada of counsel representing Group 4 Securitas Pty Ltd.

Hearing details:

2015.

Adelaide (and Video-link to Sydney)

June 10 and 26

July 20

August 3.

 1   Form F3, para 2.2

 2   Email from Employsure Pty Limited to FWC, dated 20 May 2015

 3   [2015 FWCFB 2371

 4   Exhibit T1, Document A

 5   Exhibit T1, Document B

 6   Exhibit T1, Documents C, D and E

 7   Exhibit T1, Document H

 8   Exhibit T1, Document G

 9   Exhibit T2, paras 4 - 6

 10   Exhibit T2, para 10

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