Craig Gouldson v Integrated Protective Services Pty Ltd

[2017] FWC 647

[2017] FWC 647

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Craig Gouldson
v
Integrated Protective Services Pty Ltd
(U2016/8757)

COMMISSIONER LEE MELBOURNE, 8 MARCH 2017

Application for relief from unfair dismissal - application dismissed.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 4 November 2016. This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Mr Craig Gouldson (the Applicant) claims he was unfairly dismissed from his employment with Integrated Protective Services Pty Ltd (the Respondent).

[2] The application was made on 8 August 2016. The Respondent has objected to the application on the basis that there was a jurisdictional matter to be determined, that is, that the Applicant was not a person protected from unfair dismissal because the Applicant had not served the minimum employment period.

The law to be applied

[3] Section 382 (a) of the Act provides as follows:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[4] It is not necessary to deal with the factors in s.382 (b) of the Act as I am simply dealing with the minimum employment period.

[5] Section 384 (1) of the Act provides the meaning of “period of employment”:

“382 Period of employment

(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.”

[6] Section 384 (2) of the Act deals with when casual employment counts towards a period of employment and it is not necessary to deal with that provision.

[7] Section 383 of the Act provides the meaning of “minimum employment period”:

“383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

[8] The matter was listed for hearing before me on 4 November 2016. Sworn evidence was provided by the Applicant on his own behalf; by Mr Singh, Manager of the Respondent and Mr O’Neill, Consultant to the Respondent, who gave brief evidence.

[9] The Respondent submits that the Applicant worked for the Respondent from 19 February 2016. They also submit the Applicant is still on their books as a casual employee and was not actually dismissed. They also submit that they are a small business employer within the meaning of the Act; that is that they have less than 15 employees.

[10] The Applicant submits that he had been employed by the Respondent since 7 November 2015 and he also submits that the employment he had in November and December 2015 was with RPG Security, who engaged him at that time on two occasions. The Applicant submits he was dismissed from his employment on 22 July 2016.

[11] Relevantly, in terms of RPG Security, the Applicant submits that they are an associated entity within the meaning of the Act; an associated entity has the meaning given by section 50AAA of the Corporations Act 2001. The Applicant submits that RPG Security are a related entity to the Respondent.

[12] I make no finding as to whether the Applicant was dismissed. I have assumed for the purposes of this application he was dismissed, as he asserts, on 22 July 2016. The matters that I have to determine are: if the Applicant was employed by the Respondent on 19 February 2016 and was dismissed on 22 July 2016 then that means that he was employed for a period of only five months and three days. It is at this point whether or not an associated entity arrangement becomes relevant, because if the employment of the Applicant with RPG Security on those two days in November and December was employment with an associated entity then it may count towards a period of employment.

[13] It is also a factor in determining whether or not the Respondent is a small business, because if they are associated entities then the total number of employees would be counted towards the size of the business.

[14] The Applicant’s evidence was that he performed work at two separate event days in November and December 2015, both events were described as “A Day on the Green”. He accepts that in performing that work that he approached the company RPG Security and was offered work by that company to do that work. However, the curiosity to this particular situation is that he was paid by the Respondent Company and that is agreed by the Respondent that they did, indeed, pay the Applicant. It is evidenced by his bank statements that were tendered in the proceedings for that he was paid by the Respondent.

[15] Mr Singh gave evidence on that point that his company did pay a number of employees at those two events but did so through a contracted arrangement with RPG Security to, as he described it, “support their payroll”. The circumstances of that arrangement were, as it was described by Mr Singh under sworn evidence, that the arrangement is that from time to time security companies do not have sufficient capacity within their payroll framework or enough liquidity, or perhaps enough overdraft, to provide payment to employees within the requisite period of the fortnightly period and for that reason they engage in some sort of contractual arrangement with other providers who have payroll capacity in order to be able to meet that demand.

[16] While I find that a rather curious arrangement, I am not satisfied, nor is it asserted by the Applicant, that the fact of the payment being made through the Respondent altered the fact that he was an employee of RPG Security at the relevant time. He was an employee of RPG Security; he was not on that evidence an employee of the Respondent until 19 February 2016.

[17] This brings us to the issue of associated entity and consideration has to be given as to whether or not RPG Security is an associated entity of the Respondent. The evidence does not support this proposition. The Commission provided a bundle of materials, company extracts from ASIC to the parties, which were marked as Exhibit C1. Parties were given an opportunity to consider those extracts. The Commission itself sought that those extracts be obtained and provided to the parties in order to satisfy itself after hearing from the parties as to whether they provided any evidence of any relationship at all between the organisations. It is apparent from those materials that there is no relationship of the type or types contemplated in section 50AAA of the Corporations Act 2001 between RPG Security and the Respondent.

[18] Dealing with that matter alone and for that reason alone, it cannot be said that the period, the two days of employment that the Applicant had with RPG Security, could count towards his period of employment with the Respondent because he was simply being employed by another company and there was no association between those two companies.

[19] Further, as I mentioned earlier, the payroll support function and the arrangement that is entered into whereby one security company pays employees of another, again - and I have neglected to mention it earlier - as Mr Singh put, in return for a margin on the amounts that are invoiced, meaning it is not something that is provided as a free service, it is certainly a commercial arrangement on his evidence. However, that does not of itself give rise to any notion of control as contemplated in section 50AAA of the Corporations Act 2001.

[20] For those reasons I am not satisfied that there is any associated entity relationship between RPG Security and the Respondent.

[21] Finally, there was a reference to a company named Secom Australia and there was a suggestion that there was a relationship between those two organisations. That is not relevant to the issue of the period of employment but it is relevant to the issue of whether or not the Applicant is a small business. Again, having considered the material in Exhibit C1 1, and having heard from the parties on that, I am not satisfied that there is any relationship between Secom Australia and the Respondent. Therefore I am not satisfied that either Secom Australia or RPG Security are associated entities of the Respondent.

[22] I make no finding as to whether the Applicant working on those two single days in November and December, were periods of employment that would meet the test of being regular and systematic. However, I make the observation that it is unlikely that two separate periods of employment would give rise to a notion that the Applicant had a reasonable expectation of continuing employment. The key issue in this matter is that the employment was with a different company and that company was not an associated entity of the Respondent. Therefore, on any measure, that period of employment does not count towards the Applicant’s total period of employment.

[23] I am satisfied on the evidence before me that the Applicant was employed for a period from 19 February 2016 until 22 July 2016, that is a period of five months and three days, which is short of the six-month period of employment that has to be served and for that reason alone the Applicant has not met the minimum employment period.

[24] I have considered the evidence as to whether or not the Respondent is a small business and my findings on that are clear. The Respondent provided material as part of the bundle of materials marked as Exhibit R1 which was a series of lists of names of employees that were said to be employed during the period 1 April 2016 to 31 July 2016 and a summary document was also produced during the proceedings at my request and marked Exhibit R2. The documents in Exhibit R2 show that between the period 1 April 2016 to 31 July 2016 the Respondent employed nine employees. There is a query as to the role of the owner of the company and the role he performs and, indeed, the role of Mr Singh, perhaps even Mr O’Neill. However, even if these employees were to be included in the group of employees and even the additional person that the Applicant claimed he worked with for a time, there would still only be total of 13 employees, being fewer than 15 employees at that time.

[25] I am satisfied, having had the opportunity to view the Respondent’s MYOB profile that the Respondent displayed during proceedings and the Applicant had an opportunity to view, it is clear on the evidence, and there is no evidence to the contrary from the Applicant - that there were any more than those numbers of employees at the relevant time.

[26] I am satisfied that the Respondent is a small business employer within the meaning of the Act as set out in section 23. On any view, there is no doubt that the Applicant does not meet the minimum period of employment. As the Applicant does not meet the minimum period of employment, he is not a person protected from unfair dismissal and the application is therefore dismissed.

[27] An order giving effect to this decision has previously been published in PR587254.

COMMISSIONER

Appearances:

C Gouldson on his own behalf for the Applicant

H Singh for the Respondent

Hearing details:

2016.

Melbourne:

4 November.

Final written submissions:

25 October 2016

 1   Exhibit C1, Company Extracts from ASIC provided to parties during proceedings.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR589855>