David Armstrong v Taxation Management Services Pty Ltd ATF TMS

[2014] FWC 5553

[2014] FWC 5553

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Armstrong
v
Taxation Management Services Pty Ltd ATF TMS
(U2014/1566)

COMMISSIONER WILLIAMS PERTH, 15 AUGUST 2014

Termination of employment - national system employer.

[1] This decision concerns an application made by Mr David Armstrong (Mr Armstrong or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Taxation Management Services Pty Ltd as Trustee for TMS (the respondent).

[2] The respondent has filed a Form F3−Employer’s Response to Unfair Dismissal Application objecting to the application on two jurisdictional grounds being firstly that the respondent is a small business and the dismissal was consistent with the Small Business Fair Dismissal Code and secondly that,

“The respondent is a trust and the employee was employed in Western Australia and as such is a non-constitution corporation and is not covered by the fair work commission.” (sic)

[3] This decision deals with the second jurisdictional objection only.

[4] The parties were directed to put written submissions regarding the respondent’s objection and both sides have done so.

[5] The respondent submits that persons employed by a non-constitutional corporation in Western Australia (including a sole trader, partnership or trust) are not covered by the dismissal laws.

[6] The respondent says it is a trust. The respondent has provided an extract from “ABN lookup” which shows the current detail for ABN 52948197944 which is the ABN number the applicant included in his application as an identifier for the respondent. The respondent points out that that extract identifies the ABN is for an entity named “The Trustee for TMS” and the entity type is “Discretionary Trading Trust”.

[7] The applicant has provided a range of materials as part of his submissions.

[8] These include what appears to be the signature page of an employment contract which was signed on 10 October 2011. It was signed on that date by Mr David James Armstrong. That page was also signed by an authorised person of Taxation Management Services Pty Ltd.

[9] The applicant has also provided a copy of a page which appears to be from an AMP Life Limited - Flexible Lifetime superannuation account which identifies the employer as being Taxation Management Services Pty Ltd and that the date employment started was 17 November 2011.

[10] The applicant provided with his application and as part of his submissions correspondence from Mr John Hoff being one letter dated 8 April 2014 and another dated 11 April 2014. Both letters are on the letterhead of Taxation Management Services Pty Ltd.

[11] The letter dated 11 April 2014 is addressed to the applicant and is headed “Re: Letter of Termination”. That letter explains amongst other things that Mr Armstrong’s “...employment with the Company is terminated effective immediately.”

[12] The applicant submits that he was employed by Taxation Management Services Pty Ltd as Trustee for TMS.

[13] The applicant submits that the TMS trust is not a legal entity but rather a structure set up as a matter of law to deal with the ownership and operations of property and assets between the legal entity and the beneficiaries of the trust. The legal entity is Taxation Management Services Pty Ltd.

[14] The applicant submits that Taxation Management Services Pty Ltd is a trading corporation and so a constitutional corporation and is therefore a national system employer.

Consideration

[15] Based on the information provided by the parties I am satisfied on the balance of probabilities that the employer of the applicant was Taxation Management Services Pty Ltd.

[16] Section 380 of the Act defines “employer” for the purposes of an unfair dismissal remedy application to mean a national system employer and section 14 of the Act provides the definition of a national system employer.

[17] Considering these provisions of the legislation and the submissions and information provided by the parties I am satisfied that the employer of Mr Armstrong, Taxation Management Services Pty Ltd, was at the time of his dismissal a national system employer.

[18] Consequently my decision is that the jurisdictional objection raised by the respondent that it is not a national system employer is hereby dismissed and an order for that effect will be issued.

[19] Mr Armstrong’s application will be referred for conciliation and the parties will be contacted in due course.

COMMISSIONER

Final written submissions:

Respondent, 6 June 2014

Applicant, 13 June 2014

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