Craig MacDougall v Link Commercial Mortgages Pty Ltd

[2018] FWC 1982

[2018] FWC 1982

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Craig MacDougall
v
Link Commercial Mortgages Pty Ltd
(U2018/482)

DEPUTY PRESIDENT DEAN SYDNEY, 1 MAY 2018

Application for an unfair dismissal remedy – minimum employment period.

[1] On 15 January 2018 Mr Craig MacDougall made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr MacDougall’s application states that he commenced employment with Link Commercial Mortgages Pty Ltd (the Respondent) on 11 September 2017 and that his dismissal took effect on 15 January 2018.

[3] On 16 January 2018, correspondence was sent to Mr MacDougall noting that based on the information in his application, he had not served the minimum employment period for the purposes of ss.382 and 383 of the Act. The correspondence required Mr MacDougall to advise the Fair Work Commission within 14 days whether he wished to proceed with his application.

[4] On 31 January 2018, Mr MacDougall wrote to the Commission asserting that he had been treated as an employee on an ‘unpaid basis’ for more than a year and that this period should be included in his employment period with the Respondent.

[5] The matter was listed for hearing by telephone (as neither party was located within Australia) on 5 April 2018 to determine whether Mr MacDougall had met the minimum employment period as prescribed by the Act.

[6] It is not in dispute that Mr MacDougall signed an employment contract on or around 1 August 2017 (the employment contract). The employment contract states that Mr MacDougall’s employment would commence “on grant of your 457 visa, thus entitling you to then commence employment with the Company”.

[7] It is also not in dispute that Mr MacDougall obtained his subclass 457 visa on 11 September 2017.

[8] Mr MacDougall asserts that while the employment contract commenced on 11 September 2017, he performed work for the Respondent from September 2016.
[9] The Respondent disputes that the activities undertaken by Mr MacDougall prior to 11 September 2017 constituted employment. The Respondent’s position is that it provided Mr MacDougall “with the opportunity to have training to be ready to hit the ground running within his employment position which was to commence as stated in the employment contract on grant of the 457 visa, which ultimately was granted on 11 September 2017”.

[10] The key issue in determining whether Mr MacDougall has met the minimum employment period is therefore whether the activities he undertook with the Respondent between September 2016 and 11 September 2017 can properly be considered to constitute ‘employment’.

[11] At the hearing Mr MacDougall appeared on his own behalf and Mr Alouan appeared for the Respondent.

[12] Section 382(a) of the Act provides:

“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 ...”

[13] The definition of a minimum employment period is defined in s.383 of the Act:

“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.”

[14] It is common ground that the Respondent is a small business and accordingly the minimum employment period Mr MacDougall was required to meet was one year.

Evidence and submissions

[15] In an Outline of Submissions provided on 20 March 2018, Mr MacDougall submitted that he made the claim for unfair dismissal on the basis of an ‘unlawful deemed dismissal due to non-response from my employer’ and asked that he be awarded a payment of “$120,000 p.a. salary and other entitlements under my contract of employment for the period 11 September 2017 to 12 February 2018”.

[16] Mr MacDougall submitted that the work he performed with the Respondent from September 2016 until 11 September 2017 was on an unpaid basis and was in effect an ‘internship’ until his visa was approved. He provided a detailed witness statement and extensive written submissions and supporting documentation which set out the activities he undertook with the Respondent prior to the commencement of his employment contract. In short, this included Mr MacDougall making contact with his former colleagues to source property finance deals and working on particular ‘transactions’. He asserted there was an agreement with the Respondent that he would be remunerated for this work by way of a payment to him of a percentage of the commission that would be paid to the Respondent from the finance deals.

[17] The Respondent submitted that Mr MacDougall’s employment commenced on 11 September 2017, which was evidenced by:

a. the signing of the employment contract by Mr MacDougall which confirmed the commencement date as the date Mr MacDougall obtained his subclass 457 visa;

b. the show cause letter issued by the Respondent on 16 October 2017 in which the employment commencement date of 11 September 2017 was recorded, and not disputed by Mr MacDougall; and

c. Mr MacDougall’s own unfair dismissal application in which he recorded 11 September 2017 as the date he began working for his employer.

[18] The Respondent submitted that there was no evidence that the period before 11 September 2017 could be considered an ‘internship’ as asserted by Mr MacDougall, nor was it ‘employment’.

Consideration

[19] It is clear on the material before me that Mr MacDougall and the Respondent had a business relationship between September 2016 and 11 September 2017, ie the period prior to the commencement of the employment contract. However, I am not satisfied that this relationship could properly be characterised as an employer/employee relationship. The material in evidence demonstrates a clear intention of the parties that a concluded employment agreement was conditional only upon the granting of a subclass 457 visa. This is evidenced by various documents attached to Mr MacDougall’s witness statement (including emails between the parties).

[20] I do not accept Mr MacDougall’s contention that he was in an ‘internship’ during the period September 2016 and 11 September 2017. Mr MacDougall, who previously held a senior role in the finance sector, apparently delivered professional services during this period with no guidance or training from the Respondent. The activities he undertook do not fall within the ordinary meaning of ‘internship’.

[21] Mr MacDougall was issued with a bridging visa prior to his subclass 457 visa being granted on 11 September 2017. To commence an employment contract without a valid visa would be in breach of the provisions of the Migration Act. I do not consider on the material before me I am able to find that Mr MacDougall had commenced employment with the sponsor prior to the approval of his subclass 457 visa. To do so may give rise to Mr MacDougall being in breach of his visa conditions.

[22] Having given careful consideration to all of the material filed by parties, I am not satisfied that Mr MacDougall was in fact employed by the Respondent in the period September 2016 to 11 September 2017.

[23] As to Mr MacDougall’s claim of non-payment of salary and commission by the Respondent, such issues are beyond the jurisdiction of the Commission and may be agitated in another forum.

Conclusion

[24] Based on the evidence and submissions made of the parties, I am satisfied and find that Mr MacDougall’s employment commenced with the Respondent on 11 September 2017. Accordingly, I find that Mr MacDougall had not completed the minimum employment period of twelve months and is therefore not a person protected from unfair dismissal.

[25] I uphold the Respondent’s jurisdictional objection and dismiss the application. An order to that effect will be issued separately.

DEPUTY PRESIDENT

Appearances:

C MacDougall, on his own behalf.

J-P Alouan, for the Respondent.

Hearing details:

2018.

Sydney (by Telephone):

April 5.

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