Brendon Cook v Gumala Investments Pty Ltd T/A Gipl

[2015] FWC 3402

[2015] FWC 3402

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brendon Cook
v
Gumala Investments Pty Ltd T/A GIPL
(U2015/936)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 MAY 2015

Application for relief from unfair dismissal.

[1] Mr Brendon Cook alleged that the termination of his employment by Gumala Aboriginal Corporation (GAC) on 24 October 2014 was unfair.

[2] Mr Cook’s unfair dismissal application lodged on 4 March 2015 was not made within 21 days of the date of the dismissal.

[3] In his application, Mr Cook advised that on 24 October 2014 he was removed as a director of Gumala Investments Pty Ltd (GIPL). The decision to remove him was made by the GAC, which is the sole shareholder of GIPL.

[4] On 5 March 2015, Mr Cook lodged a document with the Fair Work Commission changing the name of the organisation from the GAC to GIPL. It is not clear what that document was intended to do. However, as a result of that email, the name of the respondent to the proceeding was changed to GIPL.

[5] The GAC filed an employer response in which it objected to the application on the basis that it was filed out of time; Mr Cook was not dismissed and Mr Cook was not an employee.

[6] GIPL also filed an employer response form in which it objected to the application on the basis that the application was filed out of time; Mr Cook was not its employee and Mr Cook was not dismissed by it.

[7] GIPL stated that Mr Cook had been appointed to the board of GIPL by the GAC and he was not an employee of GIPL. It submitted that he was not appointed an “executive director” and any remuneration received was monies paid as directors fees pursuant to clause 70 of GIPL’s Articles of Association.

[8] In the employer response filed by the GAC, it advised that Mr Cook was not its employee. It put that the Board of the GAC appointed Mr Cook to be a director of GIPL. It submitted that pursuant to the Articles of Association, it is entitled to appoint directors to the Board of GIPL and directors are not employees of the GAC. It submitted that the GAC did not dismiss Mr Cook, it merely removed him as a director.

[9] At the hearing, I permitted the GAC and GIPL to be represented by legal practitioners. In the case of GIPL, I accepted that the matters raised a complex issue and it would permit the matter to be dealt with more efficiently. I permitted the GAC to be represented because I was advised that the acting CEO had only been in the position for one week and was not available to be present at the conference.

[10] Mr Cook did not dispute that he had been appointed a director of GIPL by the GAC. He was paid remuneration by GIPL. He said that as a director, he was required to administer the Gumala General Foundation. He was a signatory to the accounts and he was required to check accounts and authorise payments. His financial responsibilities took about one week per month. In addition, he attended joint management meetings, and other committee meetings between the monthly directors meetings. He said his committee work took about two weeks per month. In addition, he was required to prepare for the directors meetings and he discussed matters with others. Furthermore, as he was a representative of the Innawonga people, he needed to consult with his people. Mr Cook provided a copy of a pay slip provided to him by GIPL which was headed “employee pay slip.” He submitted that his duties were more akin to that of an executive director. However, he accepted that he was not appointed to that position.

[11] The Articles of Association of the GIPL provided for the appointment and remuneration of directors. A resolution appointing Mr Cook a director was passed on 11 September 2013. His appointment commenced on 13 October 2013. His remuneration was fixed by a resolution of the Board of GIPL. A further resolution prevented the directors from being engaged as paid consultants by GIPL or receiving any additional remuneration without the prior written approval of the GAC Board.

[12] I find that Mr Cook was not an employee of GIPL. GIPL did not appoint Mr Cook as a director, that was done by the GAC. Any monies paid to Mr Cook by GIPL were in his capacity as a director. Mr Cook undertook certain tasks, but those tasks were undertaken in his capacity as a director. Mr Cook did not enter into a contract of employment with GIPL.

[13] I accept the submission of GIPL that the pay slips issued to Mr Cook are not determinative of an employment relationship between Mr Cook and GIPL. I accept that it reflects the use of one accountancy package to record payments made, be they wages or directors fees.

[14] The GAC, by appointing Mr Cook as a director of GIPL, also did not enter into a contract of employment with Mr Cook.

[15] If Mr Cook is aggrieved at being removed as a director by the GAC, that is a matter he needs to resolve with the GAC. It is not a matter that can be resolved by the Fair Work Commission.

[16] As Mr Cook was not an employee of either GIPL or the GAC, his application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

Mr B Cook on his own behalf.

Ms K Groves and Ms E Tan on behalf of Gumala Aboriginal Corporation.

Mr J Fiocco on behalf of Gumala Investments Pty Ltd.

Hearing details:

2015.

Hearing via telephone:

18 May.

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