Alder v Climate Future Capital Pty Ltd
[2025] FedCFamC2G 263
•26 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Alder v Climate Future Capital Pty Ltd [2025] FedCFamC2G 263
File number: MLG 186 of 2024 Judgment of: JUDGE SYMONS Date of judgment: 26 February 2025 Catchwords: INDUSTRIAL LAW – Fair work – small claims list –where applicant makes claims relating to breach of written contract, Banking, Finance and Insurance Award 2020 and the Fair Work Act 2009 (Cth) – whether contract was properly terminated pursuant to s 117(1) of the Fair Work Act 2009 (Cth) – whether new employment relationship formed after termination – where applicant failed to establish that he was in a relationship of employment following the lawful termination of his employment contract – no basis to award payment for work allegedly done under contract or the Award – application dismissed Legislation: Acts Interpretation Act 1901 (Cth), s 28A
Electronic Transactions Act 1999 (Cth), s 9
Fair Work Act 2009 (Cth), ss 12, 90, 117, 542
Banking, Finance and Insurance Award 2020, Sch A, cll 2, 19, 22.3
Division: Division 2 General Federal Law Number of paragraphs: 80 Date of last submissions: 3 February 2025 Date of hearing: 3 February 2025 Place: Melbourne The Applicant: The applicant represented himself The Respondents: The third respondent represented each of the respondents ORDERS
MLG 186 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DANIEL ALDER
Applicant
AND: CLIMATE FUTURE CAPITAL PTY LTD
First Respondent
COUNTRY CARBON PTY LTD
Second Respondent
NICHOLAS CAMERON
Third Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
26 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application filed on 19 January 2024 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION
By way of application filed on 19 January 2024, the applicant (Mr Alder) has made various claims relating to breaches of a written employment contract dated 17 February 2020 (the contract), the Banking, Finance and Insurance Award 2020 (the Award), and the Fair Work Act 2009 (Cth) (the FWAct).
Alongside the application, Mr Alder filed a Form 5 - Small claim under the Act (Form 5) with the assistance of a solicitor. The Form 5 sets out in some detail a series of alleged contraventions, some of which are identified in the alternative but all of which relate to the period of 23 September 2021 to 9 May 2022 (the alleged employment period) during which time the applicant claims that he continued in the employment of the second respondent (Country Carbon) or, his employment was transferred or assigned to the first respondent (Climate Future). His specific claims are:
(a)Country Carbon is indebted to him in the amount of $56,341.91 being the amount of wages owing under the terms of the contract as a safety net contractual entitlement within the meaning of s 12 of the FW Act and which is protected under s 542 of the FW Act.
(b)In the alternative to (a), Climate Finance is indebted to Mr Alder in the amount of $56,341.91 being the amount of wages owing to him under the terms of the contract and following the assignment by Country Carbon to Climate Finance of its rights and obligations under the contract (relying on clause 20.2 of the contract);
(c)In the alternative to (a) and (b), Climate Finance is indebted to Mr Alder in the amount of $56,341.91 being the amount of wages owing for hours worked in accordance with the Award at classification level 5 (refer clause 4 and Schedule A to the Award);
(d)Country Carbon, alternatively Climate Finance, is indebted to Mr Alder in respect of the following amounts and entitlements:
(i)$5,634.19 for superannuation under clause 8.4 of the contract and/or clause 19 of the Award;
(ii)$4,333.80 for accrued annual leave on termination in accordance with ss 87 and 90(2) of the FW Act and annual leave loading on all accrued annual leave paid on termination in accordance with s 90(2) of the FW Act and clause 22.3 of the Award.
(e)Interest in the amount of $8,984.18
The position of each of the respondents is that no amount of money is owing to Mr Alder because he was not in a relationship of employment with either Country Carbon or Climate Finance during the alleged employment period.
PROCEDURAL BACKGROUND
On 28 February 2024, this matter was referred to mediation by Registrar Edwards.
The mediation took place on 20 June 2024 before Registrar Curnow. At mediation the matter failed to resolve. The Registrar made several procedural orders, one being that the proceeding be referred to a judge for hearing on a date to be fixed and that the parties file affidavits and submissions in support of their respective positions.
The matter came before me for hearing on 3 February 2025. Mr Alder represented himself, and the third respondent (Mr Cameron) represented himself and the two corporate respondents.
At the commencement of the hearing, given that all parties were self-represented, I provided them with an explanation as to the nature of the small claims list and the order and way in which the case would run. My explanation reflected the position that the rules of evidence and procedure do not apply in the small claims list and the Court may act informally and without regard to legal forms and technicalities. The relaxation of these rules and processes does not however relieve an applicant from the necessity to prove their claim, and the Court can only act on evidence possessing a rational, probative force. The parties were informed of their right to cross-examine and the consequence that might attend a failure to challenge the evidence of the other party. Despite this, cross-examination was very limited.
MATERIAL RELIED UPON
Mr Alder was the sole witness in his case, and relied upon his written submissions filed 14 January 2025 and the following documents:
·Application filed 19 January 2024.
·Form 5 and its various annexures.
·Affidavit of Daniel Alder filed on 20 August 2024 (Alder affidavit).
The respondents had two witnesses in their case, being Mr Cameron and his son, Mr Magnus Cameron. The respondents relied upon the written submissions prepared by Mr Cameron and filed on 22 January 2025 and the following documents:
·Affidavit of Nicholas Cameron filed on 3 January 2025 (Cameron affidavit).
·Affidavit of Magnus Cameron filed on 20 September 2024 (Magnus affidavit).
·Form 5.
AGREED FACTS
Most of the facts in this case were agreed, were not actively contested or can be ascertained from documents that both parties relied on and/or to which no objection was taken.
Country Carbon was, at relevant times, a small business that provided carbon offsets to businesses from Australian farmers. Mr Cameron was at relevant times a director and shareholder of Country Carbon.
Climate Future is an investment management company that makes investments in natural capital and land restoration. Mr Cameron is a director and shareholder of Climate Future.
In or around June 2017, Mr Alder commenced employment with Country Carbon in the role of Business Development Manager. Mr Alder was employed on a full-time basis.
Mr Alder signed the contract with Country Carbon on or around 17 February 2020. The contract contained terms (in a Schedule) including that Mr Alder would be paid a salary of $85,000 per annum and work from a location in Albury from 8.30 am to 5 pm Monday to Friday.[1] The contract acknowledged an employment commencement date of 17 February 2017.
[1] Annexure DA.3 to the Form 5.
During 2021 Mr Alder continued to facilitate the sale of Country Carbon’s projects to a third-party Green Collar.
On the morning of 23 September 2021, Mr Alder and Mr Cameron had a conversation regarding the termination of the Business Development Manager Role at Country Carbon.
At 8.42 am on 23 September 2021 (this being after the conversation just referred to), Mr Alder sent Mr Cameron an email which read:[2]
Hi Nick,
Just to advise that if you want to give notice of redundancy you will need to send an official email. This will start the contracted 3 week notice period from the date the email was sent. After this they will require all pay, tax and super + any late super payment charges to be fixed up.
In total it’s around the below (sic) for pay up to date and the 3 weeks is $12,536.15
I will also have 5 days of holiday left after taking holiday for the 3 weeks which will have to be paid out.
Give me a call if you have any questions.
Thanks,
Dan
[2] Exhibit CC1 to the Cameron affidavit.
Mr Cameron responded by email sent at 6.22 pm with the Subject: Confirming redundancy today for country carbon role, “Just confirming the discussion that the role is terminated. Will work out a new position with Climate Future Capital shortly”.[3]
[3] Exhibit CC2 to the Cameron affidavit.
On 16 November 2021 at 8.36 am, Mr Alder sent the following SMS message to Mr Cameron:[4]
Need a signed and dated statement on Country Carbon letterhead stating my salary to send to the UK if possible.
[4] Exhibit CC5 to the Cameron affidavit.
On 17 November 2021, Mr Alder sent a further SMS message to Mr Cameron asking that he send the statement that day.[5]
[5] Exhibit CC5 to the Cameron affidavit.
On 19 November 2021, Mr Cameron sent Mr Alder an email with the subject: Letter for the UK. The email attached a PDF file named “Letter for Daniel UK.pdf”. The attached letter appeared on Country Carbon letterhead and read:[6]
[6] Exhibit CC6 to the Cameron affidavit.
19 November 2021
Dear Sir/Madam,
Re: Daniel Alder Information for the UK
Daniel Alder has been employed by Country Carbon Pty Ltd for the position of business development manager in Albury, NSW, Australia on a salary of $85,000 plus a company motor vehicle.
Kind regards,
Nicholas Cameron
Managing Director
On 24 January 2022, Mr Cameron sent an email to Mr Alder which read.[7]
Hi Daniel
Just confirming we are selling the 500 US carbon credits with the climate active reserve. This more than covers the final pay and should be concluded within 2 weeks.
We should also receive some funds from the sale hopefully within the next 2 weeks as well.
Regards,
Nicholas
[7] Exhibit CC7 to the Cameron affidavit
On 14 April 2022, Mr Alder sent the following email with the subject line: “Options for you to think about”, to Mr Cameron:[8]
[8] Exhibit CC8 to the Cameron affidavit
Hi Nick,
Following our call today obviously you have some choices.
1.Sell the car to cover some portion of unpaid wages to allow for more time for further Country Carbon payments to come from Green Collar or John Conway.
2.You can terminate the position using the below template which must be delivered to me in person or posted to my current address - ## - giving me the 3 week notice period at which point you can fix up the amount in the Attached Entitlement document.
3.You can wait to see if any Country Carbon payment comes through next week and if not I will then submit my 3 week notice to you in person or by post after which you will need to clear the outstanding amounts also or come up with a plan to do so. The total outstanding amount after tax has been sent to you via Mobile every 2 weeks but will be outlined in the document.
As outlined in the attached Entitlement document I will also require at the end of the 3 week period all missing payslips since January 2018 which have not been provided.
I will continue to chase up outstanding Payments from John and the discussed desk research until a decision is made.
Many thanks,
Dan
Note 2: Section 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by:
(a) delivering it personally; or
(b) leaving it at the employee’s last known address; or
(c) sending it by pre-paid post to the employee’s last known address.
2 attachments
Termination-of-employment-template-redundancy.docx
Entitlements Outstanding.docx
The first attachment was a copy of a document produced by the Fair Work Ombudsman with the title “Letter of termination of employment (redundancy)”.[9] The second attachment was a letter addressed to Mr Cameron from Mr Alder dated 14 April 2022 which under the heading “Re: Outstanding wages and entitlements” referred to “my employment with Country Carbon for the period 2 June 2017 to present as a Business Development Manager” and identified as entitlements owed “as set out in the contract of employment and NSW fair work” an amount of $34,608.45 in unpaid wages, $4,513.0 in unused annual leave, $3,760.86 as payment in lieu for 3 week notice period if that employment ceases and $65 for company car aircon repair diagnostics. An amount of unpaid super was also identified. The letter informed Mr Cameron that if Mr Alder did not hear from him within seven days, he would proceed with the Fair Work Ombudsman, and possible court action may follow.
[9] Exhibits CC9 and CC10 to the Cameron affidavit.
On 2 May 2022 at 7.42 am, Mr Alder requested to take a half day of carer’s leave because his son was unwell. The following text message exchange took place between him and Mr Cameron over the course of the morning:
Mr Cameron: Daniel remember that you are meant to be in the role of an owner for the fund biz. So we are not doing time sheets for the fund startup yet. Just do the work that needs to be done because that’s what needed.
Mr Alder: Legally I have to let you know as the CC Contract has yet to be terminated as written notice has not been given as per the NES of the contract after the 3 week notice and all outstanding pay and super would need to be paid which has not happened yet. See my email on the 14th April if you need the notice template and information
Mr Cameron: Legally Daniel we provided the written redundancy notice on Sept 23 2021 of the as there are no positions in Country Carbon as explained many times.
Mr Alder:Hi Nick Please see my last email. As stated many times by myself and as you should be aware under the NES written notice must be given in person or posted to my address which has never occurred. I have emailed a template from the government if you wish to do so. However that can’t be backdated I’m now formally requesting a meeting with you this week to discuss.
On 2 May 2022 at 9.39 am, Mr Alder sent Mr Cameron an email that read:[10]
Hi Nick,
For record purposes, I have been working under my current Country Carbon Contract as written notice as per the National Employment Standards was never given to me and final notice and entitlements and missing Superannuation never paid or given and payslips yet to be sent. With the above information the work done was under the current contract with the advice from yourself that unpaid wages which were covered by myself from savings (with you had knowledge of) would be reimbursed.
It has never been stated that work undertaken for CC including organising file transfers, contact and chasing payments from GC, property owners and CBI- as well as research for future business ideas would be done for free for another company with no contracts signed. Setting up another company to avoid payment of employee entitlements is classed as potential phoenix activity so obviously should be avoided as we don’t want that kind of issue to hang over us when CFC starts.
You are aware of what is overdue with weekly updates via text as well as emailed documents stating the amounts with no concerns raised by yourself to contradict it.
Hopefully that clears up the landscape a little so hopefully if we get some movement this week we can start our next venture fresh with no confusion and tie up the last items and liabilities for Country Carbon.
Many thanks,
Daniel
[10] Exhibit CC12 to the Cameron Affidavit.
On 9 May 2022, Mr Alder gave the following letter to Mr Cameron:[11]
Dear Nicholas
Letter of resignation
I am writing to you to tender my resignation from the position of Business Development Manager with Country Carbon PTY LTD. I am providing you with the contractual 3 weeks of notice, with my last day of employment on 31/05/2022.
Thank you for the opportunities and experience that you have provided during my time at Country Carbon and I wish you all the best for the future.
This letter will accompany the outstanding payments letter that outlines all payments due including Superannuation and the 3 weeks’ notice period as well as some other details.
Yours sincerely,
Daniel Alder
[11] Annexure DA.7 to the Form 5.
The outstanding payments letter referred to in this correspondence identified an outstanding total payment amount of $48,212.54 that comprised:[12]
·Unpaid wages as of 6 May 2022 of $38,369.30;
·Unused annual leave (24 days) of $6,017.38;
·Payment in lieu for 3 week notice period of $3,760.86; and
·Company car aircon repair diagnostics of $65.
[12] Annexure DA.8 to the Form 5.
Mr Alder also claimed an amount of $17,342.6 in superannuation.
On 30 May 2022, in the context of responding to a complaint made by Mr Alder, Mr Cameron sent the Fair Work Ombudsman (Ombudsman) a copy of Mr Alder’s final payslip from 30 July 2021, a copy of Mr Alder’s emails to Mr Cameron dated 14 April 2022, and a copy of Mr Alder’s emails to Mr Cameron dated 2 May 2022.[13]
[13] Exhibit CC13 to the Second Cameron Affidavit.
On 17 October 2022, Mr Alder received an amount of $12,042.62 to his bank account. The payment was accompanied by a “Beneficiary Advice” from Norton Rose Fulbright.[14]
[14] Annexure DA.9 to the Form 5.
On 10 November 2022, the Ombudsman informed Mr Cameron that Mr Alder’s complaint was closed on 18 October 2022.[15]
COMPETING CONSTRUCTION OF THESE EVENTS
[15] Exhibit CC14 to the Second Cameron Affidavit.
Mr Alder
As I indicated earlier, the parties diverge as to how they say the events and communications described above should be interpreted.
Mr Alder deposed in his affidavit that when he was employed as Business Development Manager for Country Carbon his role focused on setting up and running new business ideas in Germany and the USA, managing a team of interns for a short period, running reports and collecting data to apply for Australian Carbon Credit Units, liaising with property owners on behalf of Country Carbon and exploring new ideas.[16]
[16] Alder affidavit at [8].
According to Mr Alder, during 2021, Mr Cameron entered into an agreement with Green Collar to sell the rights to projects to them for a lump sum, plus a royalty amount over time. Mr Alder explained that after this time he would follow up with landholders and Green Collar’s Marc Lincoln to sign over projects. Mr Alder deposed to doing this work until the date on which he provided his resignation (being 9 May 2022). He said that after this time he told Mr Lincoln to contact Mr Cameron going forward.[17]
[17] Alder affidavit at [10].
It was also Mr Alder’s evidence that he was asked to sell American Carbon Credits held by Country Carbon and to chase a property owner, John Conway, who would be paying “us” for the rights to his own project. Mr Alder deposed that his last contact with Mr Conway was in April 2022 and his last message to him was 9 May 2022. According to Mr Alder, he managed to find a buyer for the credits in March 2022 and with Mr Cameron’s permission, signed the contract of sale as Country Carbon.[18]
[18] Alder affidavit at [11].
Mr Alder deposed that “we” (which I understood to be a reference to himself and Mr Cameron) were in the process at this time of working to set up a fund once funds were received from the project sales. According to Mr Alder, he would undertake research and write papers about methodologies. He referred to a meeting with another involved party who would be needed for his financial license. Mr Alder acknowledged that “Nick [Cameron] stated we would do a new contract once the fund was set up which would include a percentage ownership along with the salary as a director”. According to Mr Alder, the contract was never created or signed. He disclaimed any mention of the term “sweat equity” in connection with any such contract.[19]
[19] Alder affidavit at [12].
Mr Alder’s affidavit also contained an acknowledgement that in September of the previous year (being 2021) Mr Cameron had “stated to make the role redundant”. However, according to Mr Alder, he had never paid out any of Mr Alder’s entitlements and Mr Cameron continued to get Mr Alder to undertake the type of work earlier described. According to Mr Alder, “he [Mr Cameron] was aware that I had said I could wait for a period of time until he could pay me for the work I was doing, and he would often say the payments would be soon as evidence in messages attached to the original application”.[20]
[20] Alder affidavit at [13].
It was Mr Alder’s evidence that since starting at Country Carbon, Mr Cameron would frequently miss scheduled salary and superannuation payments. As a result, Mr Alder had to resort to sending him email and text reminders about the outstanding amounts. According to Mr Alder, these messages were also sent after September 2021 “to keep track of the outstanding wages owed which were to be paid and Nick [Mr Cameron] never raised any issues around the outstanding wages”.[21]
[21] Alder affidavit at [14].
According to Mr Alder, it was only on the 2nd of May when he stated that he needed to take sick leave to care for his child, that Mr Cameron said he was to be in the role of an owner and that it was unpaid.[22]
[22] Alder affidavit at [15] and refer [25] above.
In his affidavit, Mr Alder explained that it was this exchange that prompted him, a week later, to hand in his resignation “as I no longer had any assets to sell to cover my wages with Nick’s ongoing statements that payment would be soon especially given his message after requesting sick leave”.[23]
[23] Alder affidavit at [16].
Mr Alder invites the Court to find that the steps taken by Mr Cameron on 23 September 2021, ostensibly on behalf of Country Carbon, did not in fact alter the employment relationship between himself and Country Carbon by bringing it to an end by reason of redundancy.
Instead, Mr Alder submits that the communication exchanged on this day was ineffective in terminating the employment relationship and that he continued in a relationship of employment with Country Carbon until around 9 May 2022, when he gave notice in writing of his decision to resign from his employment.
Mr Alder submits that his position is reinforced by:
·The letter provided by Mr Cameron acknowledging his employment with Country Carbon and salary (see [21] above).
·The SMS messages sent by Mr Alder to Mr Cameron reminding him to pay outstanding amounts in wages across the period April 2021 to 9 May 2022.
·Evidence, in the form of SMS messages, exchanged between Mr Alder and Mr Cameron across the period 1 April 2021 to 24 May 2022 which, according to Mr Alder, involve and/or document Mr Cameron giving Mr Alder directions to perform work.
·The failure of Mr Cameron to provide a copy of any written agreement for a “sweat equity” or similar arrangement.
In his written submissions, Mr Alder identified two pages of SMS messages as evidence that he continued to be required and directed to work and to perform work under the direction of Mr Cameron. The first of these two pages (which I have chosen to reproduce in full) reads:
•On 2 November 2021 at 11.30 the third respondent sent a message to the applicant which read “Suggest reviewing all material before contacting them”. In response the applicant sent a message on 2 November 2021 11.33 which read “Ok sent me the files and I’ll talk to Marc”.
•On 6 January 2022 at 12.27 the applicant sent a message to the third respondent which read “Great, I’ll get on once I have finished this webinar then find Ian Allen’s stuff so we can get those books back”.
•On 31 January 2022 at 11.07 the third respondent sent a message to the applicant that read “CLB markets Peter Favetto broker #### Sydney Office”.
•On 9 February 2022 at 15.36 the applicant sent a message to the third respondent which read “Spoke to Mark, all seems good”. In response the third respondent sent a message to the applicant on 9 February 2022 at 15.37 which read “Great”.
•On 9 February 2022 at 15.39 the third respondent sent a message to the applicant which read “Time to move on to CFC fund focus”.
•On 14 February 2022 at 14.00 the third respondent sent a message to the applicant which read “some more sections needing inputting”.
•On 25 February 2022 at 9.37 the third respondent sent a message to the applicant which read “Really need to work on the Fund planning. Check out this guy in the USA. Some things are useful much not”.
•On 28 February 2022 at 7.00 the third respondent sent a message to the applicant which read “No meet up this morning. Just focus on IM”.
•On 4 March 2022 at 13.16 the third respondent sent a message to the applicant which read “If you want to have a go to call Conway’s the phone number is “###”. Jon is his name”.
•On 8 March 2022 at 15.05 the third respondent sent a message to the applicant which read “send 1 today and second when the files are across”.
•On 9 March 2022 at 9.38 the third respondent sent three messages to the applicant which read “No sign from our end”. “Please check” “just keep on him”.
•On 9 March 2022 at 7.12 the third respondent sent three messages to the applicant which read “Just have a look over Conway’s files on the Dropbox it’s just reports and tiffs for corporate carbon” “Not much to it” “We can share to Jon once you think its ok”.
As far as Mr Alder’s alternative basis for seeking relief is concerned, his written submissions did not explain why the Court should find that a transmission or assignment of the contract had occurred, and neither did he produce any evidence that he identified as bearing on the issue.
Likewise, Mr Alder did not explain the basis upon which the Court should find that the Award applied to any employment relationship that existed between himself and Climate Finance and neither did he make any attempt to explain or provide evidence as to how any work that he performed entitled him to payment at a level 5 classification. Mr Alder produced no material and made no submissions that would allow the Court to find that the Award applied to Climate Future as an employer. The Court had before it the barest information about the first respondent so that it was impossible to determine whether it might fall within the “banking, finance and insurance industry”, as defined. It was not clear whether Climate Future had been trading during the alleged employment period. Likewise, Mr Alder did not produce any material or make any submissions that would allow the Court to find that he was an employee covered by the Award which itself depended on whether the Award was expressed to cover him in relation to his particular employment with Climate Future.
While I consider these last claims do not get off the ground so as to warrant further consideration, I note in any case that there is an uneasy fit between the duties identified in Schedule A of the Award for a Level 5 position and the indicative job list sand the tasks that Mr Alder attributed to himself, which have been described earlier in these reasons at [34]-[35].
The respondents
In his affidavit, Mr Cameron explained that at around 8am on 23 September 2021, he gave verbal termination notice to Mr Alder at Wodonga Place Café. The reason given by Mr Cameron was the closure of the Country Carbon office and the sale of the company projects. There was no need in these circumstances for a Business Development Manager.
According to Mr Cameron, he believed, following the sending of the email to Mr Alder on 23 September 2021 (reproduced at [18] above) that he had validly terminated Mr Alder’s employment. As far as he was concerned, any talk of a future position at Climate Future was subject to developments in that venture.
Mr Cameron deposed as follows to what occurred after this date:[24]
There was no office or workplace for day-to-day activities nor direct supervision or control of Daniel from this point onwards. I did casual work elsewhere and Daniel was living in Tangambalanga, and we did infrequent catchups discussing a new venture, the wrap up of Country Carbon and different business models. I did not provide day to day direction of Daniel’s activities, and he was free to take casual work whilst we explored setting up Climate Future Capital. He was actively encouraged to find casual work as the new business concept was in the early development conception phase. It was in startup mode and not properly functioning and that would take time and would be subject to licensing requirements from ASIC. Daniel had made the request to hold onto the Country Carbon motor vehicle as he said it was the only way of caring for an infant in isolated rural Victoria.
[24] Cameron affidavit at [5].
At the hearing, Mr Cameron provided further information about the nature of the new venture. He told the Court that there had been discussions between himself and Mr Alder about what they could do to obtain a financial services licence but there were a “whole series of what-ifs and contingencies”. They agreed to do a shareholder agreement, but this was contingent on Mr Ben Keough to provide a financial services licence.
As far as the communication from Mr Alder sent on 14 April 2022 was concerned (see [23] above), it was Mr Cameron’s evidence that he was “flabbergasted” by its receipt as he had every reason to believe that he had terminated Mr Alder’s employment. Mr Cameron was adamant that there had been no discussion about redeployment.
Mr Cameron said about the letter provided to Mr Alder on 19 November 2021 (see [21] above) that he had assumed the request for the letter had something to do with university. It did not represent an attempt by Mr Cameron to re-employ Mr Alder.
Mr Cameron acknowledged that there had been a delay in remitting payment to Mr Alder of his final pay upon termination. As noted above, Mr Cameron explained in his affidavit that this was because Mr Alder had pleaded with him to retain his company motor vehicle to look after an infant. Mr Cameron made a decision, which he in hindsight admitted was wrong, to withhold the final pay until the car was returned.[25]
ISSUES FOR DETERMINATION
[25] Cameron affidavit at [21].
Was the contract terminated on 23 September 2021?
The principal issue for determination is whether the information provided to Mr Alder by Mr Cameron on 23 September 2021 was effective in bringing the (admitted) employment relationship between Mr Alder and Country Carbon to an end and extinguishing the parties’ obligations under the contract, save for those that survived termination.
I am satisfied that the communications – which have been set out at [18] above – did have this effect.
At common law, there is no need for notice to be written, unless there is an express term to the contrary. The contract provided at cl 18.2 that the employer (Country Carbon) may terminate the employment by providing written notice. It did not specify the means of transmission. However, in such cases, oral notice accepted by the other party is ordinarily sufficient.
Section 117 of the FW Act identifies the requirements for notice of termination or payment in lieu that apply in respect of national system employees. Section 117(1) provides:
(1) An employer must not terminate an employee’s employment unless the employer has given the employee notice of the day of termination (which cannot be before the day the notice is given).
Note 1: Section 123 describes situations in which this section does not apply.
Note 2: Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by:
(a)delivering it personally; or
(b)leaving it at the employee’s last known address; or
(c)sending it by pre-paid post to the employee’s last known address.
The information distilled in Note 2 above reflects the modes of service referred to in s 28A of the Acts Interpretation Act 1901 (Cth). It does not say anything however about the methods of service of documents that are recognised in the Electronic Transactions Act 1999, which are picked up by means of a “Note” in s 28A(1).
Section 9(1) of the Electronic Transactions Act 1999 (Cth), in its application to persons such as Mr Alder, provides:
Requirement to give information in writing
(1) If, under a law of the Commonwealth, a person is required to give information in writing, that requirement is taken to have been met if the person gives the information by means of an electronic communication, where:
(a)in all cases—at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and
(b)…
(c)…
(d)if the information is required to be given to a person who is neither a Commonwealth entity nor a person acting on behalf of a Commonwealth entity-the person to whom the information is required to be given consents to the information being given by way of electronic communication.
As far as the first requirement is concerned, there is little case law to assist with its meaning. The Explanatory Memorandum which accompanied the introduction to Parliament of the Electronic Transactions Bill sheds some light on the construction and purpose of s 9(1)(a). It describes “the readily accessible” requirement in the following terms:
Clause 9: Writing
…
Readily accessible condition
The readily accessible requirement deals with the concepts of accessibility and useability. It does not, however deal with other issues such as authenticity of an electronic communication…The readily accessible requirement ensures that others will be able to access and use the information contained in the electronic communication and that transactions are not subsequently vitiated by a lack of access to the information. Underpinning this requirement is the basic idea of information being reproduced or retrieved and read. The readily accessible requirement captures this concept and expresses it in terms of objective criterion. The notion of readily accessible is intended to mean that information contained in the electronic communication should be readable and capable of being interpreted. Similarly, it is intended that software necessary to allow the information to be read should be retained. This may be the version of the software used to create the message or subsequent versions of the same or different software that is capable of rendering the information readable. The concept of useable is intended to cover use by both humans and machines. It is intended to deal with the useability of information, which is more than just the receipt of the electronic communication.
The requirement operates at the time the information was given. This time is taken to be the time that the information in the form of an electronic communication is given in compliance with the requirement or permission under a law of the Commonwealth. This will be the time that the electronic communication is transmitted, rather than the time that it is composed or drafted prior to transmittal.
The reasonableness element has been inserted to make clear that a person can fully comply with the law at the time of the electronic communication. A person should not be subject to any ongoing obligations in relation to the use of an electronic communication. This allows a person to satisfy the elements of this requirement immediately where it is reasonable to expect that the information would be readily accessible. There is no continuing requirement to, for example, ensure that the electronic communication is continually updated to take account of the latest changes in technology. Reasonableness in this context is not intended to be a purely subjective matter. It should be determined objectively having regard to all relevant factors, such as the technology available at the time of the electronic communication and the appropriateness of the available technology for the purposes of the communication.
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The concept of subsequent reference impliedly requires that electronic communications should be capable of retention. However, the use of this concept does not mean that electronic communications must be retained – it simply means that they must be capable of retention. Where a person chooses to retain an electronic communication pursuant to Commonwealth law then the requirements that must be satisfied are set out in clause 12.
The requirement must be satisfied regardless of whether the parties to the transaction have a continuing relationship or not.
I consider that the dual requirements of accessibility and usability have been satisfied in this case. There is no question, as a matter of fact, that Mr Alder invited communication regarding the termination of his employment to his identified email address and that he was then able to access and use the information that was transmitted through this process. Mr Alder referred to and then reproduced a copy of the email sent to him by Mr Cameron in his Form 5 application.
More importantly, I consider that objectively speaking, the requirement contained in s 9(1)(a) of the Electronic Transactions Act was satisfied at the time that the email was sent (6.22 pm on 23 September 2021) because the sender of the email, Mr Cameron, could reasonably have expected Mr Alder to be able to access and use the information that it communicated because he had less than 12 hours earlier, instructed Mr Cameron to send information concerning his redundancy to him using his email address. The instruction was sent from the same email address implicitly nominated by Mr Alder.
As far as the second requirement is concerned, it is clear from the email sent by Mr Alder to Mr Cameron on 23 September 2021 (reproduced at [17] above) that he not only consented to the notice of termination being given by way of return email but that he insisted on written notice being provided through this forum.
In these circumstances, it was disingenuous at best for Mr Alder to some seven months later, adopt the position with Mr Cameron (and Country Carbon) that his employment (by reason of redundancy) had not been validly terminated as at around 23 September 2021.
While I accept that there was a significant delay in the payment by Country Carbon of Mr Alder’s final and outstandings wages and statutory entitlements, this does not alter the efficacy or validity of the termination process. The result is that the contract and the employment relationship between Mr Alder and Country Carbon came to an end as at around 23 September 2021.
It is no coincidence in my view that the amount paid into Mr Alder’s account on 17 October 2022 (being $12,042.62) closely approximated the amount said by Mr Alder to be outstanding in his email sent to Mr Cameron on 23 September 2021.
Did an employment relationship exist after 23 September 2021?
On the case advanced by Mr Alder, in order to establish an entitlement to the payment of wages beyond 23 September 2021, he would need to satisfy the Court, on the balance of probabilities, that at some time after 23 September 2021, he became an employee of either Country Carbon or Climate Future.
The common law recognises contracts of employment that are wholly in writing, wholly verbal and those which are a combination of the two. A contract can be formed either by the acceptance of an offer or by conduct of the parties that is sufficient to prove agreement.
The Court acknowledges that rules of offer and acceptance might imperfectly respond to a dynamic, commercial relationship and that it might be difficult to pin down the precise point in time when the employment contract was formed. That is why it is useful in deciding whether a contract has been concluded between parties to focus on the following questions - in all the circumstances, can an agreement be inferred? Has mutual assent been manifested? Would a reasonable person in the position of the parties think there was a concluded bargain?[26]
[26] Mark Irving, The Contract of Employment (LexisNexis Butterworths, 2nd ed, 2019) pp 187-188.
The difficulty with Mr Alder’s case is that the matters he relies upon to establish an employment contract (and co-extensive employment relationship) with Country Carbon or Climate Future (see [44] above) do not provide evidence from which an agreement can or should be inferred or demonstrate that mutual assent has been manifested.
Beginning with the letter provided by Mr Cameron on 19 November 2021, I prefer the evidence of Mr Cameron that the letter was produced in good faith and perhaps, somewhat naively, in response to a request from Mr Alder. It did not reflect or intend to communicate Mr Cameron’s understanding that Country Carbon and Mr Alder were in an employment relationship at the time that it was produced. As Mr Cameron pointed out in his submissions, the letter referred to an employment relationship in the past tense. I accept that Mr Cameron provided the letter because he thought it would assist Mr Alder with opportunities in the United Kingdom.
As far as the SMS payment reminder messages are concerned, I place little weight on them as evidence of an employment relationship between Mr Alder and either corporate respondent. Mr Alder acknowledged that he had been in the habit of sending reminders of this kind to Mr Cameron throughout 2021. The reminders appear to be automated with the basic information (a pay amount of $2,502.23) not changing across the period that they were sent. It is entirely possible that the message automation process once set up was simply not disabled by Mr Alder. In any case, the unilateral decision taken by Mr Alder to send (or cause to be sent) these messages tells the Court nothing about the deal (if any) struck by Mr Alder and Country Carbon or Climate Future.
Which brings me to the SMS messages exchanged between Mr Alder and Mr Cameron upon which Mr Alder relies to demonstrate a system of work and receipt of directions from Mr Cameron in the period following the termination of his employment in September 2021.
I have chosen to focus on the SMS messages highlighted by Mr Alder in his submissions given that he attaches significance to them. It seems to me that these messages – especially those reproduced at [45] above – do not illuminate the question of whether Mr Alder was doing work in the capacity of employee. To the extent that it is possible to discern the nature of the tasks being performed, they seem consistent with the tasks and inquiries that might be performed in the context of a start-up venture, which is how Climate Future has been characterised by all parties. There is certainly evidence that Mr Alder and Mr Cameron communicated in relation to a new venture across the alleged employment period. However, the communication was not one-sided, was sporadic in nature at times (especially during the months of October and November 2021 and January and April 2022) and does not satisfy me, to the required standard, that Mr Cameron was exercising control (or acting in a way that suggested he had the right to do so) over tasks performed by Mr Alder consistent with the arrangement having the legal character of one of employment. The back and forth appeared largely collaborative in nature with Mr Alder at times “calling the shots”.
More tellingly however, there is no evidence before the Court of any offer made by Mr Cameron (on behalf of either Country Carbon or Climate Future) to employ Mr Cameron in either business or as to the terms of any such offer. The high point of the evidence about the nature of Mr Alder’s relationship with either entity is what was said in Mr Cameron’s email sent on 23 September 2021 where he referred to working out a new position with Climate Future Capital shortly.
Mr Alder is critical of the failure of Mr Cameron to produce any written agreement for a “sweat equity” or similar arrangement. This submission is at odds with Mr Alder’s own evidence, that Mr Cameron had told him they would do a new contract once the fund was set up but that the contract was never created or signed.
Mr Alder no doubt feels frustrated that he directed time and energy to the establishment of a new venture and yet was not remunerated for this work. He has not however discharged his onus of satisfying me that he had an entitlement to payment for this work by virtue of being in a relationship of employment with either Climate Future or Country Carbon. While I do not need to reach a concluded view on the issue, the more likely scenario is that Mr Alder agreed to perform tasks connected with the establishment of the new venture in the expectation that upon its completion, he would benefit from ownership and a role as director.
In these circumstances, the appropriate order is that the application filed by Mr Alder on 19 January 2024 be dismissed.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 26 February 2025
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