Darcy O'Rourke v Gempire Pty Ltd as the trustee for Customs House Unit Trust T/A Customs House Restaurant and Wine Bar

[2013] FWC 7723

[2013] FWC 7723

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Darcy O’Rourke
v
Gempire Pty Ltd as the trustee for Customs House Unit Trust T/A Customs House Restaurant and Wine Bar
(U2013/1493)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 3 OCTOBER 2013

Application for relief from unfair dismissal - jurisdiction - minimum engagement period and whether Respondent was a small business employer.

[1] On 8 May 2013 Mr Darcy O’Rourke (the Applicant) filed an application under s.394 of the Fair Work Act 2009 (the FW Act) alleging that the termination of his employment by Gempire Pty Ltd as the trustee for Customs House Unit Trust T/A Customs House Restaurant and Wine Bar (the Respondent) on 26 April 2013 was harsh, unjust or unreasonable.

[2] The Respondent did not file a response to the Application.

[3] The matter was referred for conciliation on 31 May 2013 but was not resolved. A jurisdictional hearing was conducted on 30 August 2013.

[4] Mr Liam Magowan appeared with permission for the Applicant and Mr Ben von Einem appeared with permission for the Respondent.

[5] Mr Daniel Muhor, the Director, Secretary and Public Officer of Gempire Pty Ltd gave evidence for the Respondent. The Applicant did not call any witnesses.

Background

[6] The Respondent operates the Customs House Restaurant and Wine Bar in Geelong which opened in March 2012. 1

[7] It is agreed that the Applicant was employed by the Respondent as a casual employee from 25 May 2012. The date of dismissal identified by the parties differs by a day, with the Applicant specifying 26 April 2013 as the date his dismissal took effect, while the Respondent has specified 25 April 2013. This difference is not material given the period of employment is 11 months, which is less than the required one year minimum employment period if the Respondent is found to be a small business employer for the purposes of the FW Act. 2

[8] It should be indicated that the case was characterised by the absence of definitive documentation or evidence to assist the Commission determine the jurisdictional issue at hand, particularly around the working pattern of casual employees or the termination date of employees. The evidence of Mr Muhor was unreliable, not because he in any way sought to mislead the Commission, but rather as a result of his lack of confidence in the veracity of the documentary evidence provided on his behalf. This is best characterised by Mr Muhor’s admission under cross-examination that the termination dates entered into the Respondent’s pay system from which was derived the bulk of the evidentiary material before the Commission were a “guesstimate” based on his recollection of the relevant employee’s termination date. 3 Mr Muhor’s further evidence was that the dates of termination set out in the documentation were not necessarily exact but were “give or take”4, with the potential deviation from the actual date of termination being “A week here or there.”5 Mr Muhor’s later evidence in respect of one employee was that “Maybe I was out by a week or two.”6

The Respondent’s evidence

[9] Mr Muhor did not submit a witness statement. As a result, his evidence was provided by way of cross-examination. Much of Mr Muhor’s evidence involved a comprehensive run through of the staffing roster 7 for the Customs House Restaurant and Wine Bar for the week commencing 22 April 2013, that is the week the Applicant was dismissed. The roster listed twenty names, one of which was Mr Muhor’s, representing a mix of full-time, part-time and casual employees and subcontractors. Consistent with the poor quality of the material before the Commission, there were names on that roster that did not appear in the payroll activity data provided by the Respondent. Regard was also had to Payroll Activity (Summary) for April 2013 submitted by the Respondent which included the names of four persons not included on the abovementioned roster (Mr Blake Coleman, Mr Damien Kos, Mr Fraser McFadden and Ms Sarah Pires).8 All in all, Mr Muhor was cross-examined about the employment of twenty three persons, other than himself.

The Applicant’s evidence

[10] As noted above, the Applicant did not lead any evidence. The Applicant also raised several issues regarding the identity of the actual employer, describing it as “opaque.” 9

The submissions of the Respondent

[11] The Respondent submitted that at the time of the Applicant’s dismissal the Respondent was a small business employer as defined by the FW Act. Based on payroll activity documentation for April, the Respondent submitted that it employed fifteen employees in total comprised of two full-time employees, two part-time employees and eleven casual employees. However, based on a closer examination of that payroll material, the Respondent submitted that “it is impossible to conclude, on balance of probabilities, that each of the eleven casual employees were employed on a “regular and systematic basis.” Many of the listed casual employees are no longer employed by the respondent.” 10

The submissions of the Applicant

[12] The Applicant submitted that, as the Respondent was seeking to oust the jurisdiction of the Commission in respect of the Application, the onus was on the Respondent to provide the necessary evidentiary material. The Applicant further submitted that to the extent that there is not evidence or documentary evidence before the tribunal that could have been put before the tribunal, “the tribunal is entitled to draw an adverse inference, namely that evidence would not have been beneficial to the respondent.” 11 In support of this latter submission, the Applicant cited Jones v Dunkel12 (Jones v Dunkel). However, the circumstances of that case differ from this one in that the defendant in that matter was not called as a witness, whereas Mr Muhor was called by the Respondent as a witness in this matter. In other words, Jones v Dunkel did not involve question marks about the veracity of the material before the Court but rather whether the “jury, when they asked, should therefore have been told fully of the inference they could draw from the silence of Hegedus [the defendant] who counsel had deliberately chosen not to call.”13

[13] It was the Applicant’s submission that the Respondent had “failed to prove that it fits within the exceptions such as to oust the jurisdiction of the tribunal.” 14

Conclusion

[14] As noted above, the evidence in this case left much to be desired. For instance, prior to the jurisdictional hearing I asked the Respondent to provide some additional material, including payroll activity details for each month from November 2012 to March 2013 (inclusive), in respect of employees referred to on the payroll activity summary for April 2013, the commencement date and termination date (if applicable) and, in respect of casual employees on that list, details of their hours of work for each month since their employment commenced. Unfortunately, that last element of the material sought was not provided, presumably because it was not readily available, though the other elements requested were provided. Against that background and the previously mentioned unreliability of Mr Muhor’s evidence, I have adopted the approach of assuming that casual employees were employed on a regular and systematic basis where they had three or more months of service with the Respondent.

[15] Applying that approach to the persons listed on the previously mentioned roster for the week commencing 22 April 2013 and Payroll Activity (Summary) for April 2013 and drawing on Mr Muhor’s evidence under cross-examination favours a finding that of the twenty three persons identified through that process:

• eleven persons were either full-time, part-time or regular and systematic casual employees - this group includes the Applicant

• the eleven persons are Mr Peter Avan, Bryce (surname not mentioned - who, based on the Respondent’s evidence, was engaged as an apprentice in the week commencing 22 April 2013) 15, Mr Nathan Cavallo (a casual employee who commenced on 19 March 2012), Ms Michelle Hiddleston (a casual employee who commenced on 12 March 2012), Mr Kaspar Carr Howard (a full-time employee), Mr Akshay Kumar (a part-time employee), Ms Danielja Lazic (a part-time employee), Mr Fraser McFadden (a casual employee who commenced on 15 January 2013), Mr Darcy O’Rourke (the Applicant - a casual employee who commenced on 25 May 2012), Ms Stacey Quarrell (a full-time employee), and Ms Laura Winkworth (a casual employee who commenced on 29 October 2012);

• one person, Ms Mathilde Lane-Turner, commenced as a casual employee on 1 April 2013 and therefore could not be characterised as a regular and systematic casual employee at the time the Applicant was dismissed;



• one person, Mr Blake Coleman, commenced as a casual employee on 26 April 2013, that is either on the day or alternatively the day after the Applicant was dismissed and therefore could not be characterised as a regular and systematic casual employee at the time of the Applicant’s dismissal;



• one person, Amber (surname not mentioned), had undertaken on a work trial in late 2012 but had not worked again since that time - Mr Muhor’s evidence was that she “prefers not to work” 16 and was included on the roster at his parents request. Mr Muhor’s evidence is corroborated by the absence of any mention of Amber in any of the payroll and Employee Employment Details documentation submitted by the Respondent to the Commission;



• one person, Gary (surname not mentioned), was a subcontractor;



• two persons, Sean and Sam (surnames not mentioned), were relief workers from an unrelated venue who were on loan to the Respondent but not employed by the Respondent; and



• six persons were shown as having ceased employment or had their employment terminated during April 2013. The six persons and the date their employment ended are Ms Camilla Beecher (a casual employee who commenced on 1 January 2013) - 15 April 2013, Ms Alexandra Burridge (a casual employee who commenced on 28 September 2012) - 9 April 2013, Mr Damien Kos (a full-time employee) - 19 April 2013, Mr Jack Krzywdzinski (a casual employee who commenced on 15 September 2012) - 21 April 2013, Mr Mitchell Lapenas (a casual employee who commenced on 28 December 2012) - 15 April 2013, and Ms Sarah Pires (a casual employee who commenced on 29 December 2012) - 10 April 2013.

[16] Given Mr Muhor’s evidence that the termination dates in the documentation provided to the Commission were guesstimates, the question becomes what to do in respect of the six persons listed above who either ceased employment or had their employment terminated shortly before the Applicant was dismissed. If I apply Mr Muhor’s give or take of a deviation of one week after the termination date shown in the Employee Employment Details documentation, only two of the six persons (Messrs Kos and Krzywdzinski) fall into the category of having been an employee at the time of the Applicant’s dismissal, making that first group shown above thirteen. If however, I apply a maximum deviation of two weeks as also alluded to by Mr Muhor under cross-examination in respect of one employee, then four of the six persons (Ms Beecher and Messrs Kos, Krzywdzinski and Lapenas) would be categorised as employees at the time of the Applicant’s dismissal, making the first group above fifteen. However, this applies a “give” approach in each circumstance, whereas Mr Muhor’s evidence contemplated the possibility of a “take” in which case none of the six persons would be categorised as employees at the time of the Applicant’s dismissal. Reinforcing the potential for the actual termination date to precede that shown in the Employee Employment Details documentation was Mr Muhor’s evidence under cross-examination regarding Mr Kos when he indicated that Mr Kos “actually left in March” 17 rather than the 19 April 2013 date appearing in the payroll documentation.

[17] On balance, I consider allowing for a “give” or deviation of one week after the termination date shown in the Employee Employment Details documentation as appropriate given the acknowledged vagaries of the evidence in this case. Doing so results in a finding that the Respondent employed thirteen employees at the time of the Applicant’s dismissal. This means that the Respondent is a small business employer as defined in the FW Act.

[18] As the Applicant had not served the 12 month minimum employment period required by the FW Act he is not protected from unfair dismissal by the FW Act.

[19] On the issue raised by the Applicant regarding the employer in this case, the Respondent submitted that the “correct name is Gempire Pty Ltd as the trustee for Customs House Unit Trust, trading as Customs House Restaurant and Wine Bar.” 18 In support of that submission, the Respondent referred to an email of 29 August 2013 from his accountant, which was provided to the Applicant and the Commission on that day, in which the accountant confirms that “the three unit holdings trusts shown on the structure are non-trading trusts and their only activity is that of investments, i.e. unit holders, property investment, share investments.”19 In the absence of any evidence being led on this issue, I am unable to form a definitive view on this issue. However, the limited material before the Commission favours a finding that none of the Respondent’s associated entities employ any persons.

[20] For all these reasons I uphold the Respondent’s jurisdictional objection and dismiss the application.

DEPUTY PRESIDENT

Appearances:

L. Magowan, Counsel, for the Applicant.

B. von Einem for the Respondent.

Hearing details:

2013.

Melbourne:

September 2.

 1   Transcript at PN 94

 2 s.383 of the FW Act

 3   Transcript at PN 155

 4   Ibid PN 156

 5   Ibid PN 157

 6   Ibid PN 305

 7   Exhibit M1

 8   Attachment to Respondent’s Outline of Submissions in Reply to an Application for an Unfair Dismissal Remedy

 9   Transcript at PN 77

 10   Respondent’s Outline of Submissions in Reply to an Application for an Unfair Dismissal Remedy at [9]-[11]

 11   Transcript at PN 47-48

 12 (1959) 101 CLR 298

 13   Ibid Judgement of Windeyer J at [33]

 14   Transcript at PN 49

 15   Ibid PN 262-264

 16   Ibid PN 276

 17   Ibid PN 173

 18   Ibid PN 19

 19   Ibid PN 22

Printed by authority of the Commonwealth Government Printer

<Price code C, PR542835>