Deborah Morton v Regal Accident Repairs Pty Ltd
[2024] FWC 1868
•17 JULY 2024
| [2024] FWC 1868 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Deborah Morton
v
Regal Accident Repairs Pty Ltd
(U2023/12265)
| DEPUTY PRESIDENT O'KEEFFE | PERTH, 17 JULY 2024 |
Application for unfair dismissal remedy – does not meet minimum employment period – application has no prospects of success – application dismissed pursuant to s587(1)(c)
Ms Deborah Morton (Ms Morton) applied to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) claiming she had been unfairly dismissed by Regal Accident Repairs Pty Ltd (the Respondent). Ms Morton’s application was made at the same time as four other such applications made against the Respondent. For convenience, all five applications were heard together. The other four applications are now resolved.
By way of brief background, the applications arose in circumstances where the Respondent was purchasing a business – being Regal Group (WA) Pty Ltd – from Ms Morton and her husband. Some employees of Regal Group (WA) Pty Ltd plus Ms Morton and her husband were offered employment in the purchased business by the Respondent. However, the sale fell through and all of those employees of the Respondent were dismissed.
During the process of dealing with Ms Morton’s application it became clear that her claims were actually for unpaid wages and denied contractual benefits. As such, they were not within the jurisdiction of the FWC. Nevertheless, as part of conciliated settlement discussions between the Respondent and the five Applicants on 29 April 2024, potential settlement of these claims was canvassed.
Ms Morton and the Respondent came to an agreement on terms that would have resolved her underpayment claims and, subject to a deed being drafted to ensure Ms Morton could still pursue her denied contractual benefits claims, the application to the FWC was to be discontinued. However, difficulties arose in securing a deed that met both party’s needs. Ms Morton sought some additional time to get legal advice on the deed and I granted this time.
On 10 May 2024 I sent an email to Ms Morton’s legal representative seeking an immediate update on progress as I was concerned about the amount of time that had passed. At that time I advised that I regarded Ms Morton’s application as having no prospects of success on the basis that she did not appear to meet the minimum employment period and further noted that the claims being settled were not claims over which the FWC had jurisdiction. I also advised that my Chambers was closing at 5pm that afternoon and would not re-open until 10 June 2024. Given this, I provided directions that required Ms Morton to provide submissions on why her unfair dismissal claim should be allowed to proceed, addressing in particular the minimum employment period and how she met that requirement. Such submissions were due on 31 May 2024.
I received a response from Ms Morton’s representative to my email sometime later on 10 May 2024, containing some proposals for wording in the deed of settlement that would allay their concerns. Further, the email suggested that the party’s legal representatives were conferring regarding resolution of all claims.
On 4 June 2024 my Chambers sent an email to Ms Morton advising that the information due on 31 May 2024 had not been received and asking that such information, along with an explanation for the delay, be provided by 5 June 2024. Ms Morton’s representative then advised by return email on 4 June 2024 that he believed his email had clarified the position that the parties had indeed reached a settlement albeit that the issue of the wording of the deed was unresolved. He included suggested wording for the deed that he believed would resolve the matter.
On 11 June 2024 I wrote to the parties seeking the views of the Respondent on this proposed wording by 13 June 2024. On 14 June 2024 the Respondent advised that it did not agree with the wording drafted by Ms Morton’s representative and proposed its own wording but also indicated it was open to discussions. On 17 June 2024 I wrote to the parties indicating that this matter, which in all likelihood fell outside of the FWC’s jurisdiction, was taking an unreasonable amount of FWC resources to manage. I advised the parties that they had until 28 June 2024 to sort the matter out. I also advised as follows:
If … the claim… remain(s) in dispute, then the applicant… must file with Chambers such evidence as they have which demonstrates that they were an employee – as opposed to director – of Regal Group (WA) Pty Ltd. Such evidence should establish that such employment was for a period equal to twelve months minus the time spent on the payroll of Regal Accident Repairs Pty Ltd. If this evidence is not provided, the Deputy President advises that his provisional view is that the applicant… would not then be able to demonstrate that they met the Minimum Employment Period as set out in s.382(a) of the Fair Work Act. In such circumstances, he advises that he may use the powers conferred by s.587(1)(c) to dismiss the application… on the basis that (it) has no reasonable prospects of success.
If the evidence is provided, then the Deputy President will confer with the parties regarding programming of a hearing to determine whether there had been a transfer of business. If there was a transfer, then the FWC can deal with the unfair dismissal applications.
On 28 June 2024 the Respondent advised that the parties had settled on a figure but not final wording of the deed. On 1 July 2024 I wrote to the parties essentially extending the deadline for resolution to 5 July 2024 but again noting that if it was not resolved, Ms Morton would need to provide evidence of her employment with Regal Group (WA) Pty Ltd or the unfair dismissal application would be dismissed. No correspondence was received from either party by 10 July 2024.
On that date I then wrote to Ms Morton directing that she provide evidence of her employment by 15 July 2024 or her application would be dismissed. Ms Morton wrote to Chambers on 12 July 2024 and stated, in part, as follows:
“I wish to express my disappoint (sic) on what one can only describe as biasness (sic) towards me in this matter when a settlement has been agreed to and waiting on the settlement deed to be completed as per the correspondence between the Parties.”
My Chambers responded to Ms Morton’s email as follows:
“Deputy President O'Keeffe notes your correspondence and your frustration with the Respondent in this matter. However, the only means available to the Commission to deal with your application is via hearing your unfair dismissal claim. At this time we have asked you for information – being evidence of your employment with Regal Group (WA) Pty Ltd - that will indicate that the Commission has jurisdiction to conduct such a hearing. No such information has been provided. As such, the Deputy President reiterates the instructions in his email dated 10 July 2024.”
Ms Morton responded on 15 July 2024 as follows:
“With all due respect I do not see the need to provide any further evidence at this stage due to an agreement being reached between The Respondent and myself. The only thing holding up the finalization of this matter is the Respondent by not providing the amended settlement deed as per MS. Martino's email stating she would have her secretary type up such deed and would send through for executing.
I believe the commission should be asking the Respondent to either produce such deed as agreed or explain why they are now reneging on the settlement which would then give all parties some clarity on the matter. I believe this to be a reasonable request considering an agreement had been reached.
Should the Respondent now wish not to proceed with the agreed settlement I request the commission supply me with a written letter stating the Respondent has reneged on the agreed settlement.
I would then request time to consider my options on how to proceed or by taking this matter up with a court of jurisdiction which will only add additional costs to the parties which would be regrettable considering we are so close.”
On 15 July 2024 my Chambers responded to Ms Morton as follows:
“Deputy President O’Keeffe notes your correspondence. Essentially, the issue for the FWC is that in all likelihood it does not have jurisdiction to hear your matter. The claims you are making are essentially for underpayment and breach of contract – neither of which are issues over which the FWC has jurisdiction. Further, these claims have taken resources from the Deputy President’s chambers that should be used to process matters over which the FWC does have jurisdiction.
At this time, Chambers has no sense of what the parties have or have not agreed by way of settlement and the terms of a deed. However, Deputy President O’Keeffe is loathe to commit further resources in circumstances where the FWC cannot deal with the claims of the Applicant and cannot enforce the terms of the agreed settlement – if indeed there are any. As such, he has continually sought evidence from you that would indicate that the FWC does have jurisdiction – in which case he could have called the matter on for hearing. As you have not provided that evidence then, on the basis of such evidence as the FWC does have, it does not have jurisdiction to hear your unfair dismissal claim.
Given this, subject to the 4.00pm (AWST) today time limit previously imposed, your application will be dismissed.”
No further correspondence was received from Ms Morton.
Conclusion
Based on the evidence before the FWC it is clear that Ms Morton was, for a short period, an employee of the Respondent. However, this period was not long enough for her to meet the required minimum employment period. For her to meet that requirement, the FWC would have to have found that there was a transfer of business between Regal Group (WA) Pty Ltd and the Respondent. I note that this matter was not heard and decided. Additionally, Ms Morton would have needed to have a period of service as an employee with Regal Group Pty Ltd such that she could become a transferring employee, and one with sufficient service – when added to her time as an employee of the Respondent – to meet the minimum employment period.
However, it seemed likely to me that Ms Morton was never an employee of Regal Group (WA) Pty Ltd but rather was a director of that company. As such, she would have no period of employment with Regal Group (WA) Pty Ltd to count towards the minimum employment period. It was for this reason that I continually sought evidence from her to prove she was an employee of Regal Group (WA) Pty Ltd. No such evidence has been forthcoming. For that reason, I find that Ms Morton is incapable of demonstrating that she meets the required minimum employment period for the purposes of making an unfair dismissal claim. Her application thus has no prospects of success and I order, using the powers provided by s.587(1)(c), that her application be dismissed.
DEPUTY PRESIDENT
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