Bartosz Wolkowski v 10 Collective Pty Ltd T/A 10 Collective

[2013] FWC 3498

[2013] FWC 3498

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bartosz Wolkowski
v
10 Collective Pty Ltd T/A 10 Collective
(U2013/6281)

COMMISSIONER RYAN MELBOURNE, 4 JUNE 2013

Termination of employment - jurisdictional objection - small business - minimum employment period not served.

[1] The following decision (now edited) was issued in transcript during proceedings on 31 May 2013.

[2] An application was made by Mr Wolkowski under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy.

[3] The respondent, 10 Collective Pty Ltd, has raised the jurisdictional objection that Mr Wolkowski has not served the minimum employment period required under s.383 of the Act.

[4] It is a matter of agreement between the parties that the respondent is a small business and therefore the minimum employment period under s.383 is a period of one year ending at the time of the dismissal.

[5] Mr Wolkowski does not become a person protected from unfair dismissal unless he has served at least the minimum employment period, in this case being one year. What is not in dispute in this matter is that Mr Wolkowski was terminated on 21 January 2013. It is also not in dispute that he was working for the respondent as from 30 January 2012. The period that is not in dispute does not amount to 12 months. What is in dispute between the respondent and the applicant is a question as to whether or not the applicant worked for the respondent prior to 30 January and worked for such a period of time or in such a manner that the applicant would have a period of employment of one year ending as at the date of dismissal. Period of employment is defined by s.384 as follows:

“(1) An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee's period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b): if

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised; the period of service with the old employer does not count towards the employee's period of employment with the new employer.”

[6] What that effectively means in relation to this matter is that I have to have regard to a period of continuous service; and if employment was as a casual, whether it was on a regular and systematic basis and with a reasonable expectation of continuing employment.

[7] In this matter the evidence is as follows: the applicant accepted an offer of employment in November and did so by 24 November. The offer was to commence employment by 6 February 2012. Between accepting the offer on 24 November 2011 and the expected start date on 6 February 2012 the applicant requested an earlier start date of 31 January 2012. The respondent had no difficulty with an earlier start date. Prior to the applicant then commencing on 30 January, the applicant on 13 January performed work which resulted in a person being placed in work.

[8] The applicant was not at that stage formally working out of the offices of the respondent. The applicant had completed and finished his previous employment. The applicant contacted the respondent and sought from the respondent a reformatting of the worker's resume or CV and sought from the respondent the terms and conditions of the respondent where the worker would be placed with the respective person who wanted that worker's services. Ms Carpenter indicated that on 13 January she sent to the applicant the reformatted resume and she sent to the applicant the terms and conditions that the respondent used in its placement of persons.

[9] The applicant used that material to then place the relevant worker with a business that required that relevant worker's services. Ms Carpenter admits that she got a benefit from the work performed by the applicant. The applicant contends that in performing that work he was doing it in his capacity as an employee of the respondent. The respondent contends that the applicant was doing that work in accordance with what might be described as an industry practice, and certainly in accordance with conduct engaged in by Ms Carpenter when she had moved from one employer to another at a previous occasion.

[10] The respondent did not consider the work performed by the applicant to be done as an employee but treated it as a goodwill gesture. The respondent paid the applicant an amount of one and a half days' pay for work performed, but did so on the basis of paying it as a goodwill gesture and not as wages earned. The question before me then is whether or not the work performed by the applicant on 13 January and immediately thereafter in requesting the reformatted CV, the terms and conditions from the respondent, and then placing a worker with a client in circumstances where the respondent in this matter got the benefit, whether that was work done as an employee of the respondent.

[11] The tests in these sorts of matters are probably best summed up by an extract from a decision of the High Court in Ermogenous v Greek Orthodox Community of South Australia Inc in which the majority said:

“Intention to create contractual relations

24. "It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty." To be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet "[t]he circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts".

25. Because the inquiry about this last aspect may take account of the subject-matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances, not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the "intention to create contractual relations" requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word "intention" is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.” [citations omitted]  1

[12] That is important because it does mean that as it says, rather than searching for the uncommunicated subjective motives and intentions of the parties, it is to have regard to what would objectively be conveyed by what was said and done. In a decision of the full court of the Federal Court of Australia in 2003 in the decision of Damevski v Giudice, Marshall J said in relation to the intention of parties to create a legal relationship, the following:

“93 Anson's Law of Contract, 28th ed. at p.31, discusses the test applied to intention for the purpose of establishing an agreement:

‘In common with most European legal systems, the test of a person's intention is not a subjective, but an objective one; that is to say, the intention which the law will attribute to a person is always that which that person's conduct bears when reasonably construed by a person in the position of the offeree, and not necessarily that which was present in the offeror's own mind.

Although the approach is objective, it is not purely objective in the sense that the intentions of the parties are entirely irrelevant so that a contract may be formed which is in accordance with the intention of neither party. It has been stated that `the judicial task is not to discover the actual intentions of each party; it is to decide what each was reasonably entitled to conclude from the attitude of the other.’

94 Anson's Law of Contract also refers to the test of intention in relation to the creation of legal relations at p. 71:

‘The test of an intention to effect legal relations is an objective one. It may be that the promisor never anticipated that the promise would give rise to any legal obligation, but if a reasonable person would consider there was an intention so to contract, then the promisor will be bound.’

95 It is an accepted principle of contract law that although a person's apparent intention will generally represent their real intention, an objective approach should be taken in establishing intention: see Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540; Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd; Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council [1990] EWCA Civ 13; [1990] 3 All ER 25 and Toyota Motor Corp Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106 at 176 per Brooking J and 176 per Tadgell J.

96 Endoxos may have set about making arrangements for the provision of labour through a third party, but ultimately it acted in a way that showed that it in fact intended to create legal relations. The evidence indicates that Endoxos wanted to maintain control of Mr Damevski, expected him to use their equipment and clothing emblazoned with Endoxos livery and, ultimately, wanted to be able to dismiss Mr Damevski.

97 In Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd, Mahoney JA said at 330:

‘It is generally accepted that, in determining whether what the parties have done results in a binding contract, their intention is significant. And there is reference in the cases and the textbooks to the question whether, for there to be a binding contract, it is necessary that the parties have an actual or subjective intention to contract: see, eg, the cases referred to by McLelland J in Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251; see generally, Halsbury's Laws of England, 4th ed, vol 9, par 300 at 175. But questions in that form are, I think, apt to mislead: it is, in my opinion of more assistance to ask whether actual or subjective intention to contract plays a part in determining whether there is a binding contract, and (if it does) what part it plays.

The proper view is, in my opinion, that the existence of a contract is a consequence which the law imposes upon, or sees as a result of, what the parties have said and done. Actual subjective intention to contract is a factor which the law takes into account in determining whether a contract exists but it is not, or not always, the determining factor.’”

[13] In the same case of Damevski v Giudice Merkel J expressed a similar sentiment:

“140. ....As was observed by Lord Diplock in Gissing v Gissing [1971] AC 886 ("Gissing") at 906:

‘the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party's words or conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party.’

[14] What I draw from this case law is that in the context of the present matter the intention held by the applicant was clearly to enhance the employment relationship and bring it forward. It was clearly a subjective intention by the applicant that by performing work, he was doing so in a manner which was consistent with the existence of and the operation of an employment relationship. It is also clear from the evidence of Ms Carpenter that the subjective intention of Ms Carpenter in accepting the work performed by the applicant was not to create an employment relationship, but to accept the benefit in a way which was consistent with maintaining momentum, past practice, her own past conduct, and where - subjectively from the point of view of Ms Carpenter - she would take the benefit but pay something for the benefit.

[15] Quite clearly the subjective intention of Ms Carpenter was not to create an employment relationship. What I now need to do is to then look at what would be the objective approach to this matter. If I have regard to the language used in Anson's Law of Contract, which I have quoted from, where it says:

“It has been stated that ‘the judicial task is not to discover the actual intentions of each party; it is to decide what each was reasonably entitled to conclude from the attitude of the other.’”

[16] I come to the conclusion in this matter that it was not a reasonable entitlement for the applicant to conclude that the respondent would accept that an employment relationship had been brought forward. I find that the respondent was reasonably entitled to conclude from the conduct of the applicant that the applicant was positioning himself to be a better or a model employee, but not necessarily to have created an employment relationship as from 13 January.

[17] The approach has to have some regard to a reasonable construction placed by the acceptor of the work as to the conduct of the person providing the work and it has to be a reasonable construction. In my view the reasonable construction of what occurred on 13 January, and an objective reasonable construction, was that it was not intended to and did not in fact create an employment relationship as from that date. The payment on the 24th of one and a half day’s pay; there is no evidence put to me by the applicant that there was specific work performed prior to 24 January which would have attracted one and a half day’s pay other than the work on 13 through to 16 January. In which case I accept that the characterisation of the payment as described by Ms Carpenter was for the benefit of the bookkeeper or the accountant to characterise it as one of the half days' pay, but it was intended as payment for the placement which occurred on 13 January.

[18] On that basis I cannot find that there is any evidence which would support a commencement date of employment that would start from 20 January 2012, which was the Friday immediately before 24 January. My conclusion, therefore, is that there was not an employment relationship in play as at 13 January. My conclusion is that certainly by 30 January the employment relationship had commenced. Even if the employment relationship commenced as from 24 January, it is still insufficient.

[19] On that basis I find that the applicant in this matter has not served the minimum employment period required in section 383, which means the applicant is not a person protected from unfair dismissal within the meaning of section 382. On that basis the application is dismissed.

COMMISSIONER

Appearances:

Mr T. O’Brien for the Applicant

Ms G. Carpenter forthe Respondent

Hearing details:

2013.

Melbourne:

May 31

 1 [2002] HCA 8; 209 CLR 95; 76 ALJR 465; 187 ALR 92 (7 March 2002), Gaudron, McHugh, Hayne and Callinan JJ

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