Buckley and Secretary, Attorney-General's Department

[2021] AATA 210

Buckley and Secretary, Attorney-General's Department [2021] AATA 210 (12 February 2021)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )

)         No: 2020/4087

GENERAL DIVISION  )

Re: Gary Buckley

Applicant

And: Secretary, Attorney General’s Department
Respondent

DIRECTION

TRIBUNAL:  Mrs J C Kelly, Senior Member

DATE OF CORRIGENDUM:            23 March 2021

PLACE:  Sydney

IT IS DIRECTED, in accordance with subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), that the text of the decision in this application is to be altered such that:

1.    the reference to “5 and 20 March 2019” in paragraph 64 of the decision is replaced with “5 and 20 March 2018”;

2.    the reference to “5 March and 20 March 2019” in paragraph 65 of the decision is replaced with “5 and 20 March 2018”;

...................................................[sgd].......................

Mrs J C Kelly, Senior Member

Division:                  GENERAL DIVISION

File Number(s):      2020/4087

Re:  Gary Buckley

APPLICANT

And  Secretary, Attorney-General's Department

RESPONDENT

DECISION

Tribunal:                  Mrs J C Kelly, Senior Member

Date:  12 February 2021

Place:  Sydney

The reviewable decision dated 10 June 2020 is affirmed.

................................................[sgd]…………........................

Mrs J C Kelly, Senior Member

CATCHWORDS

EMPLOYMENT ENTITLEMENTS –whether applicant is entitled to an advance under the Fair Entitlements Guarantee Act 2012 (Cth) – where applicant received workers’ compensation payments following an injury at work – where employer was insolvent when the applicant’s employment ended – whether the end of the employment was due the insolvency of the employer – where applicant’s employment ended because the employer did not have light work for him following injury – decision under review affirmed

LEGISLATION

Corporations Act 2001 (Cth) ss 286, 588E

Fair Entitlements Guarantee Act 2012 (Cth) ss 10, 14, 19, 35 Fair Work Act 2009 (Cth)

CASES

Lewis v Doran [2004] NSWSC 608

Milardovic and Secretary, Department of Employment [2019] AATA 213

REASONS FOR DECISION

Mrs J C Kelly, Senior Member 12 February 2021

INTRODUCTION

1.The Fair Entitlements Guarantee (FEG) is a legislative scheme to cover certain unpaid employment entitlements for eligible employees who lose their job due to the liquidation or bankruptcy of their employer.

2.The Applicant, Mr Buckley, seeks an advance payment under the Fair Entitlements Guarantee Act 2012 (Cth) (FEG Act) in relation to unpaid employment entitlements owed to him by his former employer Empire Built (NSW) Pty Ltd (Empire Built) for annual leave and leave loading and payment in lieu of notice (PILN).

3.The reviewable decision made by the Respondent on 10 June 2020, affirmed a decision dated 29 January 2020 that the Applicant was not eligible for an advance payment under the FEG Act.

4.At the hearing on 21 January 2021, the Applicant did not argue that he was entitled to long service leave or unpaid wages and the Respondent accepted that he was a permanent employee of Empire Built and did not maintain the argument that he was a casual employee.

5.The issues had reduced to:

a)  whether the end of the Applicant’s employment with Empire Built was due to the insolvency of Empire Built (s 10(1)(c)(i) of the FEG Act); and if so,

b)  whether the applicant has unpaid employment entitlements for:

(i)  annual leave and leave loading; and

(ii)  PILN, and if so,

c)  whether any outstanding entitlements owed to him at the end of his employment have been satisfied by the payment agreed in terms of the settlement in proceedings in the Fair Work Commission (the FWC Settlement), pursuant to s 19 of the FEG Act.

UNDISPUTED FACTS

6.The Applicant began work with Empire Built on or about 1 October 2016.1 The Respondent did not dispute that the employment contract was oral, that the Applicant was to earn $1,400 net per week and that there are no business records such as pay slips, group certificates, PAYG summaries, separation certificates/letters of termination, or records of wages, annual leave or timesheets. The only documentary records of payments made by Empire Built to the Applicant were his bank statements.

1 T1.1/7; T15.1/198.

7.The Applicant suffered an injury to his left hand at work on 4 October 2017 when he lowered a ramp and “the bucket rolled towards & hand got crushed”.2 He was certified unfit for his usual duties.

8.On 16 October 2017, GIO, as an agent for the Workers Compensation Nominal Insurer, determined that his pre-injury average weekly earnings were $1,400.3 The amount had been calculated based on information the Applicant had provided. At least by 21 December 2017, the Applicant was certified as having capacity to work but was working less than 15 hours per week.4 The Applicant received workers’ compensation entitlements from GIO from 5 October 2017 to 4 January 2018 at a rate of 100% of his average weekly earnings, and 80% of his average weekly earnings from 5 January 2018.5

9.On 5 March 2018, the Applicant’s employment with Empire Built was ended during a conversation with the Director, Mr Michael Khalil (the 5 March 2018 conversation).

10.The Applicant commenced proceedings against Empire Built in the Fair Work Commission (FWC) for unfair dismissal in breach of the Fair Work Act 2009 (Cth) which were finalised in the FWC Settlement dated 26 June 2018.6 The FWC Settlement stated that the Applicant had been employed by Empire Built from 1 October 2016 to 5 March 2018. The terms included, without admission of liability, that:

(i)  Empire Built must pay (and if Empire Built cannot, the Director Michael Khalil must pay) the Applicant an amount of $9,800 gross, to be taxed as an eligible termination payment, in addition to any other monies paid to the Applicant, and

(ii)   Empire Built rescinds its dismissal of the Applicant and for all purposes the Applicant’s employment is treated as having come to an end by reason of resignation.

2 T3.4/39.

3 T9.3/170-172.

4 T9.4/173.

5 T9.4/163.

6 T1.1/7-9.

11.On 3 July 2018, the Deputy Commissioner of Taxation applied for the winding up of Empire Built. The Notice of Application for Winding Up Order dated 30 July 2018 showed a hearing date of 10 August 2018. It was apparently withdrawn after Empire Built made two payments (see [18]).

12.On 24 and 25 July 2018, the Applicant’s legal representative communicated with the chambers of Commissioner Johns of the FWC by email. He sought a certified copy of the FWC Settlement to register in the Local Court as a “judgment” to enforce the debt. The FWC did not provide certified copies of documents from the proceedings.

13.On 21 and 22 August 2018, the Applicant’s legal representative communicated with the Local Court about enforcing the FWC Settlement. The Court required a certified document.

14.On 21 September 2018 the Application for Winding Up Empire Built was withdrawn.7

15.On 4 and 8 October 2018, the Applicant’s legal representative communicated with the chambers of Commissioner Johns again. The outcome was the suggestion that the Applicant would have to commence a civil action to enforce the agreement.

16.In the meantime, on 1 October 2019, the Applicant made a claim for an advance pursuant to s 14 of the FEG Act.8 The applicant claimed the following:

Unpaid wages	$2,647.40 (1 week)
Underpaid wages	$6,429.40 (2.5 weeks)
Annual leave	$12,064.58 (6.38 weeks)
Annual leave loading	$2,111.30 (6.38 weeks)
Payment in lieu of notice	$3,782 (2 weeks)
Total	$27,034.68

7 T4/47.

8 T3/12-21.

17.On 9 October 2018, liquidators were appointed to Empire Built by a resolution of the member.9

18.The report from the liquidator dated 18 December 2019 included the following:

·in relation to Priority Creditors, the Department of Small Business and Jobs had notified that a former employee (the Applicant) had submitted a claim under the FEG scheme for $27,034.68 but the liquidator was “unable to comment on this line of enquiry” “given the limited books and records in my possession”.10

·voidable recoveries were an Australian Taxation Office (ATO) Preference Claim Settlement estimated to be $100,000. The liquidator had identified two payments to the ATO in the relevant six month period totalling $115,800.71 which was settled for

$100,0000.11

19.In the Statutory Report to Creditors dated 9 January 2019, the liquidator stated:

·the company had operated in the construction industry providing demolition and excavation services.12

·the company had ceased to trade prior to the liquidator being appointed.13

·the date of insolvency for Empire Built was approximately July 2016, if not earlier.14

·Empire Built was not compliant with s 286 of the Corporations Act 2001 (Cth) (Corporations Act) which required it to maintain financial records that correctly record and explain its transactions and financial position.15 Therefore, under s 588E

9 T5.1/52.

10 T8/104.

11 T8/103.

12 T5.1/53.

13 T5.1/53.

14 T5.1/56.

15 T5.1/56.

of the Corporations Act, Empire Built is presumed to have been insolvent since its incorporation on 26 May 2014.16

·the Applicant was listed as a priority creditor for the sum of $9,800.17

20.In a signed declaration in relation to his FEG claim dated 17 January 2020, Mr Buckley listed the following outstanding employee entitlements:18

Unpaid and underpaid wages	1 week	$2,647.40
Annual leave	6.38 weeks	$12,064.58
Annual leave loading	6.38 weeks	$2,111.30
Payment in lieu of notice	2 weeks	$3,782.00

21.On 29 January 2020, the Applicant’s claim for FEG was refused because he was not eligible for FEG assistance (the primary decision). On 26 February 2020, the Applicant’s legal representative requested a review of that decision.

22.On 27 April 2020, the Applicant’s legal representative responded to a request for additional information, providing an unsigned statement by the Applicant with annexures (the unsigned statement) and set out his his claim as follows:19

Unpaid wages for public holidays during employment (1 September 2016 to 5 March

2018)

$6,429.40 (17 days)

Payment in lieu of notice

$5,429.40 (14 days)

Annual leave (based on 79 weeks of employment)

$16,084.85 (42.53 days)

16 T5/51.

17 T5.1/60.

18 T9.2/168.

19 T15/193-194.

Annual leave loading	$2,814.85 (42.53 days)
Total	$30,758.50

23.On 10 June 2020, the reviewable decision affirmed the primary decision. On 8 July 2020 the Applicant applied to the Tribunal for a review of the 10 June 2020 decision.

24.The Applicant gave oral evidence at the hearing.

CONSIDERATION

Was the end of the Applicant’s employment due to the insolvency of Empire Built?

25.Section 10 of the FEG Act sets out the eligibility requirements for the Fair Entitlements Guarantee. Subsection 10(1) provides that a person is eligible for an advance if the Secretary is satisfied of eight criteria, including subsection (1)(c):

(c)the end of the employment:

(i)   was due to the insolvency of the employer; or

(ii)  occurred less than 6 months before the appointment of an insolvency practitioner for the employer; or

(iii)  occurred on or after the appointment of an insolvency practitioner for the employer.

26.The facts of this case do not satisfy either subsection 10(1)(c)(ii) or (iii): a liquidator was appointed on 9 October 2018, seven months and four days after the end of the Applicant’s employment.

27.The Respondent’s primary contention was that the Applicant is not eligible for an advance because his employment did not end “due to the insolvency” of Empire Built.

28.The questions that the Tribunal must resolve in determining whether the Applicant’s employment ended ‘due to the insolvency’ of Empire Built are set out in Milardovic and Secretary, Department of Employment [2019] AATA 213 (Milardovic) at [62], namely:

(i)  when did the Applicant’s employment with Empire Built end;

(ii)  whether Empire Built was insolvent at the time the Applicant’s employment ended; and

(iii)  if so, whether the Applicant’s employment ended due to the insolvency of Empire Built.

29.The answer to the first question is that the Applicant’s employment ended on 5 March 2018.

30.The Respondent conceded that Empire Built was likely to have been insolvent at the time the Applicant’s employment ended on 5 March 2018, based on the Statutory Report to the Creditors dated 9 January 201920, which is summarised at [19].

31.In Milardovic, the Tribunal considered in detail how to determine whether a Company is in fact insolvent when the date of insolvency is in issue. Citing Palmer J in Lewis v Doran [2004] NSWSC 608, the Tribunal observed that it will have the benefit of the wisdom of hindsight in identifying when the insolvency is to be determined retrospectively.21

32.The benefit of the wisdom of hindsight is of little assistance in this case because there are very poor records available to determine with any great certainty whether Empire Built was trading while insolvent at the time of the Applicant’s employment ending.

33.The Respondent submitted that it is preferable to presume that the information provided by the insolvency practitioner for the employer is accurate, in accordance with s 35 of the FEG Act. I accept that is the proper approach. It leads to the conclusion that in accordance with s 588E of the Corporations Act, Empire Built is presumed to have been insolvent since its incorporation on 26 May 2014.

34.I find that the answer to the second question is that Empire built was insolvent at the time the Applicant’s employment ended on 5 March 2018.

20 T5.1/56.

21 Milardovic at [82].

The parties’ contentions about the reason the Applicant’s employment ended

35.The Respondent contended that the Applicant’s employment did not end due the insolvency of Empire Built but as a result of a dispute between the Applicant and Mr Khalil which was resolved in the FWC Settlement. It relied on the following facts:

·The Applicant’s employment with Empire Built commenced in late-September 2016 (or 1 October 2016 according to the FWC settlement) when Empire Built was insolvent.

·The Applicant received wages consistently throughout the period October 2016 until his injury on 3 October 2017.22 From October 2017 until his termination, the applicant received workers compensation payments.23

·He was certified fit for light duties in January 2018.

·On the Applicant’s own account, his employment was terminated following a disagreement with Mr Kahil.24

·The FWC Settlement provided that Empire Built agreed to rescind the dismissal and “for all purposes treat the Applicant’s employment as having come to an end by reason of the Applicant having resigned”.25

·Any outstanding employment entitlements owed to the Applicant were due to Empire Built’s poor compliance with industrial relations laws which has been resolved by the FWC settlement and were not due to Empire Built being insolvent.

·The Applicant’s employment did not end due to the insolvency of his employer in accordance with the requirement of s 10(1)(c)(i) of the FEG Act. Rather the end of his employment arose in the context of the applicant being unfit for his

22 T9.1.

23 T9.1; T9.4/173.

24 T15.1/202-203.

25 T1.1/7.

usual duties from October 2017, seeking light duties from his employer, and the employer terminating his employment due to a disagreement between the two.

36.The Applicant argued that his employment ended due to the insolvency of Empire Built because:

·Empire Built could not afford to employ him. It was unable to pay the Applicant consistently, or any of his annual leave or his superannuation.

·It is likely that Empire Built terminated the Applicant’s employment on 5 March 2018 due to the Applicant’s request that his outstanding superannuation and annual leave be brought up to date and the Employer could not afford to do this because Empire Built:

owas already trading insolvent;

owas in arrears with a sizable debt to the ATO; and

odid not have any cash flow to pay the Applicant’s entitlements.

37.In support of its argument, the Applicant pointed to the fact that the winding up proceedings were commenced against Empire Built on 3 July 2018, three months after Empire Built terminated the Applicant’s employment, and seven days after attending the FWC and entering into the FWC Settlement.

38.The Applicant rejected the Respondent’s argument that Empire Built ended the Applicant’s employment due to his inability to perform his role or being unfit for his usual position, pointing to the fact that the Applicant was employed in an identical position with Wilson Plant & Equipment some 14 days after Empire Built terminated his employment.

The evidence about the reason the Applicant’s employment ended

39.The critical facts in this case are the conversation on 5 March 2018 when Mr Khalil fired the Applicant and the surrounding circumstances.

40.The Applicant provided the following information In the FEG initial claim form dated 1 October 2019. In response to Question B15.1 about any changes in his working conditions in the last six months of his employment, the Applicant stated that he was injured at work, lodged a workers compensation claim, “However no Light duties were made available to me so I had to find my own light duties through another business”. In response to a question about steps taken to recover employee entitlements, the Applicant wrote:

Telephone discussion with Michael Khalil (director) on 20 March 2018 – he refused to pay me or investigate any underpayment. All other telephone call attempts were ignored. obtaining legal advice; contacting the liquidator.

41.The Applicant stated that the last date he worked for his former employer was 5 March 2018, he did not resign, and his employer terminated his employment with no notice.

42.He wrote that he had to load and unload the truck, which explains how he was injured in October 2017. His base weekly wage before tax was $1,891. He began work with Wilson Plant & Equipment Pty Ltd on 19 March 2018 and attached a pay slip.

43.In an email sent on 17 January 2020 to “Jobs – FEG”, the Applicant’s legal representative attached various documents in response to a request for further information and wrote that following on from discussions “with your colleague” he was unable to meet with the client and obtain a Statutory Declaration “but can provided the following information” which can be confirmed by statutory declaration.26 He wrote that “We are instructed as follows” and set out a list of 14 matters, including:

8. When the Applicant was injured whilst working for the Employer – the Employer would not provide adequate light duties and as such the Applicant had to find their own light duties with another employer in order to continue to be paid from GIO.

…

10.   The Applicant’s employment was terminated on 5 March 2018 whilst on Workers Compensation.

11.    On 5 March 2018, the Applicant received a telephone call from Michael Khalil the Director of the Employer and was told his employment was terminated effectively immediately without any reason.

12.   The Applicant was not given any notice or paid in lieu of any notice.

13.   The Applicant attempted to contact Mr Khalil on a number of occasions after his employment was terminated to obtain:-

26 T9/132.

a.   Unpaid wages

b.   Payment in lieu of notice

c.   Pay slips and group certificates.

Mr Khalil answered the Applicant’s telephone call on 20 March 2018, but refused to provide any of the above. After that date, Mr Khalil would not answer his phone calls.

14.    The Applicant has had no further contact with the Employer or Mr Khalil since 20 March 2018.

44.The Applicant provided two statements in support of his case. The first was unsigned and undated (the first statement).27 It was provided under cover of an email dated 27 April 2020, in response to a request for further information in relation to the internal review. The Applicant’s legal representative referred to previous correspondence and a telephone call, and noted that due to COVID-19, meeting with clients to witness documents and obtain instructions “is challenging” and that “we have agreed to proceed on the basis of using an unsigned statement from the Applicant answering your queries and in absence of any submissions from our office”, which could be provided if required.28 Attached to the first statement were eight photographs displaying text messages sent from Mr Khalil to the Applicant giving him instructions about jobs. Some were undated. Those that were dated were in September 2017.

45.The second statement was signed and dated 18 November 2020 (the second statement). In the second statement, the Applicant explained that he continued to rely on the first statement and added the information in the second statement “for clarification”.

46.In the first statement, the Applicant explained how Empire Built operated, at [4] to [8]:

4. On or about late September 2016 I commenced my employment with Empire Built.

5.  The day before my first day of employment, I was required to meet Mr Khalil at his house in East Hills. At that meeting, Mr Khalil handed to me the keys to the truck I would be driving and then also directions to the location of the truck which was in a suburban street Milperra.

6.  To the best of my understanding, Mr Khalil’s address in East Hills was the base of the Empire Built business. There was no actual “head office”. From this location he would have a woman, whose name I do not recall answer the calls for the business and handle the paperwork needed.

27 T15.1/198-204.

28 T15/193.

7.  The next day was the first day of employment with Empire Built. I drove my car to the location of the truck in Milperra. I parked my car at the location and then picked up the truck. I drove the truck throughout the day and completed what jobs were assigned to me. At the end of the day I returned the truck to the Milperra location and drove my car home.

8.   There was no depot or garage for the trucks like in my previous jobs. I was required to take the truck home with me every night and I was responsible for it. I used to park it down the road from where I lived.

47.At [10] to [15] of the first statement, the Applicant described his duties:

10.   During my employment with Empire Built I was employed as a fulltime truck driver driving long haul heavy machinery prime movers and trucks.

11.  I was one of the main truck drivers employed by the Company.

12.  My general hours were between 7am and 5pm, but it would depend on the type of job and traffic on the road. I would sometimes be required to work outside those hours.

13.  My duties included but were not limited to:-

a.  Driving a prime mover either attached to a trailer or float;

b.    Moving heavy machinery to and from construction sites, such as excavators;

c.  Picking up and delivering shipping containers;

d.  Picking up and delivering skip bins;

e.  Picking up construction waste and rubble and taking it to the tip or another site;

f.  Delivering clean fill to building sites;

g.  Maintenance of the trucks;

h.  Occasionally I would operate an excavator if required to.

14.  I would receive instructions from Mr Khalil or another person whom I only knew as Larry.

15.  I would receive instructions on a regular basis via phone (both telephone calls and SMS) and also in person whilst attending jobs. …

48.The Applicant stated the following about light duties in the first statement. He was certified fit for light duties in January 2018 but Empire Built would not provide light duties and so he found an employer who would, Emilio Civil. During the five weeks Emilio Civil had light duties for him, he would ring Mr Khalil, who would mostly ignore his calls. In late January 2018 he spoke with Mr Khalil, told him that GIO were trying to get hold of him, and asked for light duties. Mr Khalil said he was working on it and would call him. The Applicant said that he needed to be provided with light duties because he had been waiting for weeks. Mr Khalil said that he would call the Applicant.

49.In the first statement, the Applicant set out his conversation with Mr Khalil on 5 March 2018 “with words to the following effect”:

I said: Hi Michael, just calling to see if I can come back to work yet. My work with Emilio Civil is drying up.

He said: Yes Im still working on it.

I said: It’s been nearly two months. I can come in and wash the trucks or do small jobs on site.

He said: When im ready I’ll call you

I said: Whilst I have you on the phone, can you tell me how much annual leave I have accrued.

He said: Annual Leave? Why do you want that? You just had a 3 month vacation!

I said: No I didn’t! I was off on workers compensation due to my injury. You haven’t paid me anything!

He said: So what!

I said: I’m entitled to it. Plus you still haven’t paid me my superannuation. He said: Yeah Yeah. I know just give me some time.

I said: how much longer do you need? Its been nearly 2 months, plus I have been asking for my superannuation for nearly 2 years!

He said: I don’t need this shit from you Gary. You can go fuck yourself. You’re fired!

I said: You’re firing me whilst on workers compensation? He said: Yeah. don’t come back. You’re done.

I said: Firing me doesn’t change anything. You still owe me my Superannuation and accrued annual leave.

He said: You’ll never get it from me.29

50.Mr Khalil hung up. After that telephone call, the Applicant called him a number of times but Mr Khalil did not answer. The Applicant stated that he continued to work for Emilio Civil.

1. The first substantive matter addressed in the Applicant’s second statement is headed

“Termination of Employment in Connection with Insolvency”. The Applicant stated: “for the

29 The first statement at [41].

period leading up to the termination of my employment with Empire Built…the company was having money problems”.  He set out four examples he could recollect.

52.The first was a conversation in about early February 2018 “whilst on light duties”, when the Applicant was directed to fly to Melbourne to pick up a new truck and Mr Khalil gave him a bank cheque to pay for it.

I said: Are we registering our trucks down in Melbourne now? Are you thinking of starting to do more business down there?

He said: Yes, the cash flow isn't the greatest at the moment. If we can't turn it around, I'm thinking about signing the company over to my cousin who lives down there. Plus, the registration of the trucks and costs of running the company are cheaper in Victoria.

53.The Applicant was not paid for this until 28 February 2018, some 4 weeks later.

54.The second example comprised conversations the Applicant had with Mr Khalil in early February 2018 while he was performing light duties at a residential demolition site at Bankstown.

Mr Khalil expressed to me, “this is a cash job, I won’t get paid until its finished, so your pay may be a little late this week”.

55.At the completion of the job, the Applicant witnessed Mr Khalil receive what appeared to him to be a large sum of cash from the client and had the following conversation with him:

I said: Now that you are paid, can you please pay me?

He said: Yeah, I just need to fix up a few bills first. If there is some left over, I’ll try and pay you what I can.

56.The Applicant stated that he received delayed payment for three weeks work on 28 February 2018.

57.The third example was that on a number of occasions throughout his employment, the payment of the Applicant’s salary, which was to be paid weekly, was delayed. He stated that he would regularly ask Mr Khalil where his pay was. Mr Khalil would always say words to the effect: “money is tight at the moment. I’ll get it to you as soon as I can”.

58.The fourth example related to GIO certifying him fit for light duties in late December 2017 or early January 2018. He telephoned Mr Khalil:

I said: Good news, I can come back to work on light duties now. When can I start? He said: I can’t provide you with any work.

I said: Why not? I can do some small jobs around the yard or at jobsites? He said: No. I can’t afford it right now.

59.The Applicant stated that he told GIO about the conversation. He was advised to visit a vocational counsellor while GIO sorted out the situation with Empire Built. He did, but after being told he would most likely work in an office, the Applicant sought permission to find his own light duties. In or around late January 2018, the Applicant telephoned GIO and stated that Emilio Civil could no longer provide him with light duties. GIO suggested he visit the vocational counsellor again because they could not make contact with Mr Khalil or Empire Built. Later that week, the Applicant telephoned GIO for an update and was told that contact had been made with someone in Empire Built’s office who refused to provide him with light duties. GIO told Empire Built that by law they had to. GIO told the Applicant to get in touch with Empire Built again to organise when to commence work. He commenced light duties with Empire Built in February 2018 but was provided with little work, being three hours on each of two days on the demolition site in the first week, one day in the second week picking up a truck from Melbourne, and a total of six hours in the last two weeks of February.

60.The Applicant explained that when he reviewed his bank statements, he realised that he had returned to work with Empire Built by the time he had the conversation with Mr Khalil on 5 March 2018 and recalled the conversation to be to the following effect. He said that he was not getting enough light duties hours and asked why he was being given a few hours a day and was then sent home. Mr Khalil said: “I can’t afford to have you on”. The Applicant then asked to be “at least” paid his annual leave and superannuation which he could live off for a while. Mr Khalil said he could not pay that, the company had been doing it tough, and he did not have the cash lying around. Mr Khalil became abusive and told him he did not need him anymore.

61.The Applicant also recalled during the conversation that he asked for his pay slips and group certificates, and explained that he needed them to do his tax return.

62.During his oral evidence, the Applicant said that he was generally paid regularly in the lead up to the injury in October 2017 but some weeks payment was a week and a half late.

The reason the Applicant’s employment ended

63.The Applicant’s evidence about the conversation on 5 March 2018 and the surrounding circumstances has evolved in response to the primary and reviewable decisions. His FEG initial claim and the email from his legal representative dated 17 January 2019 are to the effect that Mr Khalil initiated the telephone call on 5 March 2018 and terminated the Applicant’s employment without giving any reason. The Applicant called Mr Khalil a number of times and on 20 March 2018, Mr Khalil answered and the Applicant asked for unpaid wages, payment in lieu of notice and pay slips and group certificates.

64.The first and second statements have the Applicant initiating the 5 March 2018 call because he was seeking additional light duties and during the course of the conversation asking for various unpaid entitlements. The two conversations previously identified on 5 and 20 March 2019 have merged into one and in doing so strengthen the Applicant’s argument that his employment was terminated due to Empire Built being insolvent.

65.I prefer the version of events set out in the FEG initial claim and the email of 17 January 2019. There were two telephone calls on 5 March and 20 March 2019.

66.The Applicant’s evidence has been consistent that he had difficulty getting Empire Built to give him light duties, although his position changed from not being given any light duties, to having been given some in February 2018, as set out in his second statement, having reviewed his bank statements and seen the three credits from Empire Built on 28 February 2018. Those payments were for $200, $400 and $560, a total of $1,160.

67.I find that the evidence shows that Mr Khalil terminated the Applicant’s employment on 5 March 2018 because he did not have light duties for him, which GIO had advised him he was legally obliged to provide. Contrary to the suggestion in the Applicant’s second statement, there was no “yard” where he could do light duties. His evidence was that the business was run out of Mr Khalil’s house, the Applicant was responsible for the truck he drove, including parking it near his home. In his own words “I was one of the main truck drivers employed by the Company”. He could not perform that work and Empire Built did not have light duties to give him.  His employment was terminated.

68.The end of the Applicant’s employment was not due to the insolvency of the employer, Empire Built. He does not satisfy subsection 10(1)(c)(i) of the FEG Act. He was not eligible for an advance payment under the FEG Act.

69.It is unnecessary to address the other issues raised in the proceedings.

DECISION

For the above reasons, the reviewable decision dated 10 June 2020 is affirmed.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

.....................................[sgd]...................................

Associate

Dated: 12 February 2021

Date(s) of hearing:  18 January 2021

Solicitors for the Applicant:              T Dutt, Empire Lawyers

Solicitors for the Respondent:          L Pendle, Australian Government Solicitor