Giltrap v Czeschka
[2022] FedCFamC2G 715
Federal Circuit and Family Court of Australia
(DIVISION 2)
Giltrap v Czeschka [2022] FedCFamC2G 715
File number(s): ADG 121 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 31 August 2022 Catchwords: INDUSTRIAL LAW – dismissal from employment – whether rescission of dismissal from employment – date of dismissal or dismissals – number of employees at time of dismissal or dismissals – whether employee or independent contractor – whether casual employee employed on a regular and systematic basis – whether employer a small business employer Legislation: Fair Work Act 2009 (Cth) ss 23, 117, 119, 121, 570 Cases cited: Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424; (2004) 206 ALR 387; (2004) 78 ALJR 907; [2004] Aust Torts Reports 81-752
Birrell v Australian National Airlines Commission (1984) 5 FCR 447; (1984) 9 IR 101
Climaze Holdings Pty Ltd (t/as Alan Croll Roofing) v Dyson (1995) 13 WAR 487
Construction, Forestry, Maritime, Mining and Energy Union & Anor v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 96 ALJR 89; (2022) 312 IR 1
Frederick v South Australia [2006] SASC 165; (2006) 94 SASR 545; (2006) 152 IR 182
Hamilton v Whitehead [1988] HCA 65; (1988) 166 CLR 121; (1988) 63 ALJR 80; (1988) 82 ALR 626; (1988) 14 ACLR 493
Hodgson v Amcor Ltd [2012] VSC 94; (2012) 264 FLR 1; (2012) 64 AILR 250-033
Lee v Lee’s Air Farming Ltd [1961] AC 12
New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371; [2002] Aust Torts Reports 81-676; (2002) 115 IR 283; (2002) 52 AILR 5-410
Port Kembla Coal Terminal v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99; (2016) 248 FCR 18; (2016) 263 IR 344
R v The Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-Operative Ltd (1977) 16 SASR 6; (1977) 44 SAIR 1202
Riordan v War Office [1959] 3 All ER 552; [1959] 1 WLR 1046
Riordan v War Office [1961] 1 WLR 210
Thomson v Kimberly College Ltd & Ors [2020] FCCA 3361
ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; (2022) 96 ALJR 144; (2022) 312 IR 74
Division: Division 2 General Federal Law Number of paragraphs: 86 Date of last submission/s: 27 August 2021 Date of hearing: 27 August 2021 Place: Perth Counsel for the Applicant: Mr R Manuel via CISCO Webex Solicitor for the Applicant: WBH Legal Counsel for the Respondents: Mr A Potts via CISCO Webex Solicitor for the Respondents: Morgan Alteruthemeyer ORDERS
ADG 121 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: STEPHEN CRAIG GILTRAP
Applicant
AND: JOSEF CZESCHKA
First Respondent
SIMON BRENNAN
Second Respondent
L2S ENGINEERING PTY LTD
Third Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
31 august 2022
THE COURT ORDERS THAT:
1.The matter be adjourned to a directions hearing at11.00am ACST/9:30am AWST on 9 September 2022.
2.Costs, if any, be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
Introduction
Before the Court is an application and statement of claim (“the Application”) filed on 13 March 2020 by the applicant, Mr Stephen Craig Giltrap (“Mr Giltrap”). The Application alleges contraventions of s 550 of the Fair Work Act 2009 (Cth) (“FW Act”) by the first respondent, Mr Josef Czeschka (“Mr Czeschka Snr”), the second respondent, Mr Simon Brennan (“Mr Brennan”) and the third respondent, L2S Engineering Pty Ltd (“L2SE”), for alleged failure to pay Mr Giltrap redundancy payments, sick leave, annual leave, and superannuation payments in accordance with the FW Act.
In an order dated 8 February 2021 the Court (differently constituted) “noted” that the hearing of “this matter is bifurcated” and listed it for hearing on the issue of whether L2SE had 15 or more employees. The Court notes that the usual rule is that it is preferable for all issues of fact and law in a proceeding to be determined at one time (see, for example, Thomson v Kimberly College Ltd & Ors [2020] FCCA 3361 at [22]-[24] per Judge Jarrett). The bifurcation of this hearing has resulted in the determination of relatively narrow issues in relation to only one aspect of the claim, namely redundancy payments, and in so far as it might now be required, a delay in the Court dealing with other aspects of the claim.
The Court notes that the first respondent, Mr Czeschka Snr took no part in these proceedings: he filed no appearance and no other documents, and did not appear at the hearing.
Material Before the Court
Mr Giltrap filed a Statement of Claim on 18 March 2020. Mr Brennan and L2SE filed a Response on 30 July 2020. No other pleadings have been filed.
The following written evidence is before the Court:
(a)the witness statement of Vanessa Nunn signed 19 April 2021 (“Nunn Statement”);
(b)the affidavit of Doreen Lind sworn 26 May 2021 (“Lind May 2021 Affidavit”);
(c)the affidavit of Mr Giltrap sworn 12 July 2021 (“Giltrap Affidavit”);
(d)the affidavit of Simon Brennan affirmed 5 August 2021 (“Brennan Affidavit”);
(e)the affidavit of Vanessa Nunn affirmed 19 August 2021 (“Nunn Affidavit”); and
(f)the affidavit of Doreen Lind sworn 20 August 2021 (“Lind August 2021 Affidavit”).
Issues
There are three primary issues to be determined in relation to the case presently before the Court. They are as follows:
(a)on what date or dates was Mr Giltrap’s employment with terminated by L2SE?;
(b)if Mr Giltrap’s employment was terminated by L2SE, for the first time, on 20 December 2019, was that termination subsequently rescinded?; and
(c)was L2SE a small business with fewer than 15 employees for the purposes of ss 121 and 23 of the FW Act as at the date or dates of termination of Mr Giltrap’s employment?
The evidence
Evidence of Mr Giltrap
Mr Giltrap gave evidence that:
(a)he was engaged by L2SE as a project manager on a full-time permanent basis, commencing on or around 25 October 2017;
(b)the terms of his employment were contained in a written employment contract dated 25 October 2017 ( “Contract of Employment”); and
(c)pursuant to the Contract of Employment he was to work 40 hours per week from Monday to Friday at the rate of $100,000 per year, and that he was paid at that rate between 25 October 2017 to 11 November 2019, but that in breach of his contract from 11 November 2019 onwards he was paid at the rate of $95,014.14, a reduction in relation to which he was not consulted, and to which he did not consent.
The Contract of Employment provides for termination of employment at cll 1.8 and 1.9. Clause 1.8 provides for summary dismissal at any time without notice, but only for the commission of “any act of serious misconduct”. Clause 1.9 provides for termination of employment by L2SE by the giving of one week’s notice (and an additional week for an employee aged over 45 with at least two years continuous service). The Court notes that clause 1.9 of the Contract of Employment is not in complete accord with the periods of notice required to be given or paid in lieu of notice under s 117 of the FW Act.
Clause 1.10 of the Contract of Employment sets out various entitlements to remuneration, accrued leave, and other entitlements under the Contract of Employment or by law upon termination of employment.
In relation to the events between 20 December 2019 and 9 January 2020 Mr Giltrap’s Affidavit evidence was that:
(a)on 20 December 2019 he was advised by email (the email is not in evidence) by Mr Czeschka Snr, a director of L2SE, that he was being made redundant, effective immediately;
(b)he was not provided with a formal termination letter;
(c)he was not paid any entitlements at the time of dismissal, nor was he told that entitlements would be paid to him, and he was not consulted in any way in relation to the 20 December 2019 redundancy;
(d)as 20 December 2019 was the final day of work prior to the Christmas break he did not attend work, and he was also not able to contact Mr Czeschka Snr to discuss his termination as “L2S had shut shop”: Giltrap Affidavit at [11];
(e)on approximately 30 December 2019 Mr Giltrap was advised by telephone by Gordon Gendall, an employee of L2SE to return to work as L2SE had been purchased by a new company;
(f)annexed a company search for L2SE;
(g)on 6 January 2020 Mr Giltrap returned to work on the assumption that he would sign a new employment contract, but he was not presented with any documentation, nor was he given a Fair Work Information Sheet, or access to any applicable Award;
(h)on 7 January 2020 Mr Giltrap spoke to a Mr Brennan, by telephone, and discussed some aspects of L2SE’s business in the Northern Territory, and made enquiries as to whether there would be further investment in the Northern Territory operations, and says that he was told by Mr Brennan that there would be such investment, but that at no time during this conversation did Mr Brennan mention or allude to any job changes or redundancies;
(i)on 9 January 2020 Mr Brennan advised Mr Giltrap that he was being made redundant, effective immediately;
(j)Mr Giltrap received a termination letter on 9 January 2020 (“January 2020 Termination Letter”) which he says indicates that he was being made redundant, and advised him that he was being paid one week’s notice as he had been employed at L2SE for less than 12 months;
(k)the terms of the January 2020 Termination Letter, including the “Redundancy Payout Summary” are as follows (reproduced unaltered, save for redacted address):
9 January 2020
Stephen Giltrap
[address redacted]
Darwin NT 0830
Dear Stephen,
RE: TERMINATION OF YOUR EMPLOYMENT ON NOTICE
The purpose of this letter is to confirm the outcome of a recent review by L2S Engineering Pty Ltd (the employer) of its operational requirements and what this means for you.
As a result of economic downturn, the full-time position of Project Manager is no longer required so we regretfully advise that your employment with L2S Engineering Pty Ltd is terminated immediately. As such any L2S Engineering property or equipment is to be return in good working order immediately also.
Please see attached for an estimate of your final pay to be processing on Friday 17 January 2020 which will include 1 weeks’ notice in accordance with Clause 1.9 Termination of Your Employment on Notice from your Employment Contract with L2S Engineering Pty Ltd as you have not yet completed two full years of service. At time of payment, you will also be provided with a copy of your employment separation certificate that will be filed with Centrelink/Human Services.
Should you have any queries or further information that may vary this estimate, please contact me directly by email so we are able to maintain HR records of all communications.
We thank you for your contribution during your employment with us.
Yours sincerely
L2S Engineering Pty Ltd
Simon Brennan
Managing Director
51 Burlington Street Naval Base WA 6165
(PO Box 2310, Rockingham DC WA 6967)
(08) 9410 0787
L2se.com.au
Redundancy Payout Summary
Commencement Date:30 October 2017
Finish Date: 16 January 2019
Employment Classification: Project Manager
Classification: Full Time
Salary: $100,000.00
Annualised Hourly Rate: $45.68
Hours per week: 38
Payment Type Weeks Hours Total Hours Cost
Hours Worked to 9/1/20 38 38 $1,735.84
Unused Annual Leave 72 72 $3,288.96
Notice in Lieu 38 38 $1,735.84
Redundancy $0.00
Total Payout $6,760.64
In relation to the number of employees employed by L2SE as at 20 December 2019 and 9 January 2020 Mr Giltrap gave evidence that:
(a)as at 20 December 2019 there were 19 employees employed at L2SE: Giltrap Affidavit at [22], as follows:
1. Jake Baarsoe
2. Josef Czeschka Jr (casual)
3. Josef Czeschka (contract/director)
4. David Duncan (casual)
5. Daniel Dixon
6. Kane Dowsen
7. Gordon Gendall
8. Drew Horton
9. Khy Jackson (casual – regular and systematic)
10. Doreen Lind
11. Vanessa Nunn
12. Gavin Satie
13. Ren Sunley
14. Zaldy Elan
15. Wayne Fowler (casual – regular and systematic)
16. Wayne Mangan
17. Stephen Giltrap
18. Ben Murray
19. Douglas Reid
(b)that as at 9 January 2020 there were 20 employees employed at L2SE: Giltrap Affidavit at [25], as follows:
1. Benjamin Murray
2. Daniel Dixon
3. Douglas Reid
4. Drew Horton
5. Gordon Gendell
6. Jake Baarsoe
7. Kane Dowsen
8. Ren Sunley
9. Stephen Giltrap
10. Vanessa Nunn
11. Wayne Mangan
12. Zaldy Elan
13. Josef Czeschka Jnr (Casual)
14. Rohan Green
15. James Mather
16. Michael Hughes (casual)
17. Khy Jackson (casual)
18. Doreen Lind
19. Gavin Satie
20. Wayne Fowler (casual)
Mr Giltrap gave very brief evidence-in-chief to the effect that:
(a)he believed that he was initially terminated on 19 December 2019;
(b)he returned to work on 6 January 2020 and worked until 9 January 2020; and
(c)he did not receive any pay for the period between 20 December 2019 and 6 January 2020 “to [his] best knowledge”: Transcript, page 6, but that he did receive a further payment on or about 9 or 10 January 2020, after he was terminated on 9 January 2020: Transcript, page 6.
In cross-examination Mr Giltrap gave evidence that:
(a)he received a phone call from Mr Gendall on 30 December 2019 stating that he was to resume work on 6 January 2020 with “business as usual”: Transcript, page 7;
(b)he did not attend a meeting on 30 December 2019 with Mr Brennan and others: Transcript, page 7;
(c)on termination on 9 January 2020 he was paid one week’s notice, unused annual leave, and that the hourly rate calculated was calculated on his “previous employment contract”: Transcript, page 9;
(d)he was paid out his annual leave for the period between 20 and 29 December 2020, although he was not 100 per cent sure of precisely what he was paid: Transcript, page 9;
(e)the period of shut down between 20 December 2019 and 6 January 2020 would ordinarily have been a period of annual leave: Transcript, page 10; and
(f)asserted that he knew how many employees were employed as at 20 December 2019 and 9 January 2020 because he did the timesheets for the personnel who were located in Darwin and sent those timesheets to Doreen Lind for entry onto the pay sheets: Transcript, pages 10-11.
Mr Giltrap was cross-examined in relation to specific employees, and in that regard:
(a)was not 100 per cent positive that David Duncan was an employee of L2SE on 20 December 2019, although he did believe that Mr Duncan was working at Austal Ships on that day: Transcript, page 12;
(b)he was “not 100 per cent sure” if Doreen Lind and Gavin Satie were employed as at 9 January 2020: Transcript, page 13;
(c)said that Michael Hughes was employed, and that he walked out of a meeting concerning redundancy (the date of which was not specified): Transcript, page 13;
(d)he had assumed that Mr Rohan Green was an employee as a consultant (and not as was put to him a consultant contractor): Transcript, page 13;
(e)that Josef Czeschka Jnr was not an employee as at 9 January 2020: Transcript, page 13; and
(f)that to the best of his knowledge the last pay he received from L2SE was after 9 January 2020, and he was not paid on 4 or 6 January 2020: Transcript, page 14.
In re-examination Mr Giltrap said that he presumed that he received payment with respect to annual leave and other accruals on 30 December 2019.
Evidence of Ms Lind
Doreen Lind was employed by L2SE in its accounts department and did the “pays” for the employees of L2SE: Lind May 2021 Affidavit at [2]. Ms Lind was employed from 3 March 2015 to 20 December 2019.
In the Lind May 2021 Affidavit at [4] Ms Lind gave evidence that as at 20 December 2019 the employees of L2SE numbered 18 and were as follows (reproduced unaltered):
1. Jake Baarsoe - Fulltime;
2. Josef Czeschka Jnr - Casual;
3. Josef Czeschka - Fulltime MD/General Manager;
4. Daniel Dixon- Fulltime;
5. Kane Dowsen - Fulltime;
6. Gordon Gendall - Fulltime;
7. Drew Horton - Fulltime;
8. Khy Jackson - Casual;
9. Myself- Fulltime;
10. Vanessa Nunn - Fulltime;
11. Gavin Satie - Fulltime;
12. Ren Sunley - Fulltime;
13. Zaldy Elan - Fulltime;
14. Wayne Fowler - Casual;
15. Wayne Mangan - Fulltime;
16. Steve Giltrap - Fulltime;
17. Ben Murray- Fulltime;
18. Douglas Reid - Fulltime.
Ms Lind swore a further affidavit on 20 August 2021 and in the Lind August 2021 Affidavit she said that:
(a)L2SE was paying at least 18 employees as at 20 December 2019: at [4]; and
(b)at [6] said that the following employees were employed as at 20 December 2019:
6.1 Jake Baarsoe
6.2 Josef Czescha Jnr (casual)
6.3 Josep Czescha Snr
6.4 Daniel Dixon
6.5 Rohan Green – Contract
6.6 James Mather
6.7 Michael Hughes (casual)
6.8 Kane Dowsen
6.9 Gordon Gendall
6.10 Drew Horton
6.12 Khy Jackson (casual)
6.13 Vanessa Nunn
6.14 Gavin Satie
6.15 Ren Sunley
6.16 Zaldy Elan
6.17 Wayne Fowler (casual)
6.18 Wayne Mangan
1.69 Steve Giltrap
6.20 Ben Murray
6.21 Douglas Reid
Ms Lind also gave evidence that on 20 December 2019 employees in the Perth office of L2SE were advised that their employment contracts would be terminated and that L2SE was going into administration: Lind August 2021 Affidavit at [8] and [10].
In relation to payment Ms Lind said that she was told by Mr Czeschka Snr that employees had been paid for the previous two weeks but that he could not confirm when other payments would be made or when employees would be paid out their entitlements: Lind August 2021 Affidavit at [10].
Ms Lind was cross-examined, and in her cross-examination gave evidence that:
(a)she prepared the Lind August 2021 Affidavit after she received a copy of the Brennan Affidavit with the pay lists attached, and which included three other people that she had forgotten were casuals: Transcript, page 19;
(b)when preparing her affidavits she did not have access to any L2SE documents, including payroll documents: Transcript, page 19;
(c)in relation to the Lind May 2021 Affidavit she discussed her evidence with another former employee, Ms Vanessa Nunn: Transcript, page 20;
(d)Rohan Green was employed on a casual contract basis at the beginning, but was then put on to a contract rate where an invoice was provided from his business: Transcript, page 21;
(e)Michael Hughes did not work past December 2019: Transcript, page 21; and
(f)she cannot remember if David Duncan was employed as at 20 December 2019: Transcript, page 22.
Evidence of Ms Nunn
Ms Nunn gave evidence in relation to the number of employees employed at L2SE on 20 December 2019 and 9 January 2020 as follows:
(a)in the Nunn Statement that the employees who were dismissed by L2SE at the same time as her (on 20 December 2019) were as follows (reproduced unaltered):
12.1 Jake BaarsoeJosef Czescha Jnr (casual)
12.2 Daniel Dixon
12.3 Rohan Green
12.4 James Mather
12.5 Michael Hughes (casual)
12.6 Kane Dowsen
12.7 Gordon Gendall
12.8 Drew Horton
12.9 Khy Jackson (casual)
12.10 Doreen Lind
12.11 Vanessa Nunn
12.12 Gavin Satie
12.13 Ren Sunley
12.14 Zaldy Elan
12.15 Wayne Fowler (casual)
12.16 Wayne Mangan
12.17 Steve Giltrap
12.18 Ben Murray
12.19 Douglas Reid
(b)as to the four casual employees that three, Khy Jackson, Michael Hughes and Wayne Fowler, worked systematic and regular hours;
(c)as at 9 January 2020 L2SE had the following employees:
21.1 Benjamin Murray
21.2 Daniel Dixon
21.3 Douglas Reid
21.4 Drew Horton
21.5 Gordon Gendal
21.6 Jake Baarsoe
21.7 Kane Dowsen
21.8 Ren Sunley
21.9 Stephen Giltrap
21.10 Vanessa Nunn
21.11 Wayne Mangan
21.12 Zaldy Elan
21.13 Wayne Fowler (casual)
21.14 Simon Brennan
21.15 Jake Baarsoe
21.16 James Mather
21.17 Khy Jackson (casual)
21.18 Michael Hughes (casual)
(d)Ms Nunn says that the 18 persons employed as at 9 January 2020 were engaged as 15 full-time employees and three regular and systematic casual employees;
(e)in the Nunn Affidavit Ms Nunn says that as at 20 December 2019 the following were employees of L2SE (she having missed one in the Nunn Statement):
5.1 Jake Baarsoe
5.2 Josef Czescha Jnr (casual)
5.3 Josef Czescha Snr
5.4 Daniel Dixon
5.5 Rohan Green
5.6 James Mather
5.7 Michael Hughes (casual)
5.8 Kane Dowsen
5.9 Gordon Gendall
5.10 Drew Horton
5.11 Khy Jackson (casual)
5.12 Doreen Lind
5.13 Vanessa Nunn
5.14 Gavin Satie
5.15 Ren Sunley
5.16 Zaldy Elan
5.17 Wayne Fowler (casual)
5.18 Wayne Mangan
5.19 Steve Giltrap
5.20 Ben Murray
5.21 Douglas Reid
(f)says that all of the casual employees except for Josef Czescha Jnr worked on a regular and systematic basis and worked as many hours each week as the full-time staff;
(g)Ms Nunn says that she knew each of the employees personally having been employed at L2SE on a full-time permanent basis as HSEQ Manager/Procurement Supervisor on a full-time basis from 21 March 2014 until 20 December 2019: at [2], [7] [8] and [9].
In relation to the events of 20 December 2019 Ms Nunn said that Mr Czeschka Snr told employees in the Perth office of L2SE on that day that their employment contracts would be terminated, and that L2SE would be going into administration: Nunn Affidavit at [9]-[10].
Ms Nunn says that she was subsequently asked to attend a meeting at the Perth office of L2SE on 30 December 2019 with Mr Brennan of BRE Engineering, where she “was offered to commence employment again on 6 January 2020”: Nunn Affidavit at [15]. Although Ms Nunn does not expressly say so it can be inferred that she recommenced employment with L2SE as she deposes to having her employment “terminated again” in March 2020: Nunn Affidavit at [15].
Cross-examined, Ms Nunn gave evidence that:
(a)she was not paid on 6 January 2020, and was not paid until a fortnight later than that on or around 20 January 2020: Transcript, page 25;
(b)her entitlement to annual leave continued to accrue during the period from 20 December 2019 to 6 January 2020: Transcript, pages 25 – 26;
(c)the lists of L2SE employees in the Nunn Statement and Nunn Affidavit were prepared from memory, and the amendment in the Nunn Affidavit was because she missed including an employee in the list in the Nunn statement and later corrected the list for the Nunn Affidavit, an amendment derived from her phone records and memory of who was there on the day: Transcript, page 26;
(d)she did not have a discussion with Ms Lind concerning the number of L2SE employees, expressly saying “I reject that”: Transcript, page 26;
(e)she maintained that Michael Hughes was working on “9 January 2021” [scil. 2020], and did not believe that he stopped work in “December”: Transcript, page 27;
(f)she did not know if David Duncan was employed on 20 December 2019: Transcript, page 27;
(g)she considered that James Mather was a full-time employee: Transcript, page 27;
(h)Doreen Lind and Gavin Satie were not working on “9 January”: Transcript, page 28.
Evidence of Mr Brennan
Mr Brennan gave evidence that:
(a)he is a director of L2SE, having become so on 29 December 2019: Brennan Affidavit at [1]–[2];
(b)he became a director after paying a loan amount to L2SE to enable it to continue to trade and pay wages, having previously become aware that L2SE was about to be placed into liquidation, following which he contacted the previous director, Mr Czeschka Snr, who informed him that all employees of L2SE had been “laid off” and that liquidation was imminent: Brennan Affidavit at [2];
(c)having become a director, “in the New Year of 2020” he approached a number of employees who had been laid off and “verbally informed them that I would like to rescind their termination and that they could continue to work for the company. One of those persons was … Mr Stephen Giltrap, who accepted my offer and was paid wages on the basis that he had never been terminated”: Brennan Affidavit at [5];
(d)on 9 January 2020, having reviewed L2SE’s position company structure, he decided that Mr Giltrap’s position was no longer tenable, and informed Mr Giltrap that his position was no longer required and terminated his employment with L2SE: Brennan Affidavit at [6];
(e)as at 9 January 2020 L2SE employed 12 full-time employees as set out in L2SE’s payroll employee summary: Brennan Affidavit at [7] and annexure SB2, as follows:
7.1 Benjamin Leslie Murray;
7.2 Daniel Dixon;
7.3 Douglas Reid;
7.4 Drew Horton;
7.5 Gordon Gendall;
7.6 Jake Baarsoe;
7.7 Kane Adam Dowsenl
7.8 Ren Sunley;
7.9 Stephen Craig Giltrap
7.10 Vanessa Nunn
7.11 Wayne Michael Mangan and
7.12 Zaldy Jnr Elan
(f)as at 9 January 2020 L2SE employed three casual employees, Wayne Fowler, James Mather and Khy Jackson: Brennan Affidavit at [8]–[10] and annexures SB3, SB4 and SB5, the annexures being the payroll activity details for each of those employees from 1 July 2019 to 30 June 2020;
(g)Michael Hughes had his employment with L2SE terminated on 20 December 2019 before Mr Brennan became a director of L2SE: Brennan Affidavit at [11] and annexure SB6 being a payroll summary from 1 July 2009 to 30 June 2020; and
(h)he had no employment contract with L2SE, and had never received any wage, financial remuneration or fringe benefits or dividends from L2SE, but was the sole director and sole controller of the affairs of L2SE: Brennan Affidavit at [3]–[4].
Mr Brennan gave brief evidence in chief, relevantly as follows:
(a)in relation to Mr Mather that he had only been working for a week or two prior to 20 December 2019, and was employed as a casual employee until around August 2020 when he became a full-time employee: Transcript, page 31;
(b)Mr Mather was not paid during the usual stand-down period over Christmas and New Year of 2019–2020 because he was a casual employee at that time: Transcript, page 31;
(c)that until 9 January 2020 Mr Mather was employed as a casual employee on an as needs basis with a mixture of full-time and part-time work: Transcript, page 32; and
(d)that he received no remuneration or fringe benefits from L2SE: Transcript, page 32.
Mr Brennan was cross-examined, and gave evidence as follows:
(a)he had no involvement in the termination of employees of L2SE on 20 December 2019: Transcript, page 33;
(b)that having become the sole director of L2SE on 29 December 2019 he formed the view that some of the employees who had been terminated on 20 December 2019 ought to be re-employed: Transcript, pages 33-34;
(c)that the employees who were re-employed were re-employed by L2SE: Transcript, page 35;
(d)not all of the employees who were re-employed by L2SE were re-employed in the same positions: Transcript, page 35;
(e)that there was a payroll for all employees on salaries and wages only on 6 January 2020: Transcript, page 35, for “work” being “primarily annual leave” over the Christmas shutdown: Transcript, page 36; and
(f)in characterising employees employed on before 20 December 2019 as casual employees, or not, he was reliant upon L2SE’s payroll records, and not upon his personal knowledge: Transcript, pages 36 and 38;
In re-examination Mr Brennan said that the re-employed employees were treated by L2SE as if their employment was continuous (that is that the termination on 20 December 2019 had not occurred) and their entitlements were fully maintained: Transcript, page 39.
Consideration
Whether rescission of 20 December 2019 termination of employment
Law concerning rescission of termination of employment
In Riordan v War Office [1959] 3 All ER 552; [1959] 1 WLR 1046 at 1054 per Diplock J (affirmed on appeal in Riordan v War Office [1961] 1 WLR 210 ) it was said that:
… the giving of a notice terminating the employment, whether by employee or employer, is the exercise of the right under the contract of employment to bring the contract to an end, either immediately or in the future. It is a unilateral act, requiring no acceptance by the other party, and, like a notice to quit a tenancy, once given it cannot in my view be withdrawn save by mutual consent.
In Birrell v Australian National Airlines Commission (1984) 5 FCR 447; (1984) 9 IR 101 (“Birrell”), FCR at 458 per Gray J the Federal Court observed that:
The purpose of providing in a contract for a period of notice of termination is to enable the party receiving the notice to make other arrangements. An employee given notice by his or her employer has a period of time in which to seek another job; an employer who receives notice has time to arrange for a substitute employee. It would be harsh if arrangements so made during the running of the notice could be disrupted, and parties could be held to their contracts by unilateral withdrawal of the notice at the last minute. Such withdrawal, if possible, could lead to an employee being bound by contracts of employment with two employers, or an employer being bound by contracts of employment with two employees, each being required to give notice to one or the other in order to be extricated from this position, or possibly to suffer the requirement to forfeit or pay wages for a period of time. In my view, I should lean against the adoption of any principle which could lead to such unfortunate consequences, and I should follow the authorities which tend to establish that withdrawal of a notice of termination of a contract of employment can only be effected by consent of both parties.
Birrell reflects the current state of the law in Australia: see New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371; [2002] Aust Torts Reports 81-676; (2002) 115 IR 283; (2002) 52 AILR 5-410 at [277] per Spigelman CJ; Frederick v South Australia [2006] SASC 165; (2006) 94 SASR 545; (2006) 152 IR 182 at [73]-[75] per White J; Hodgson v Amcor Ltd [2012] VSC 94; (2012) 264 FLR 1; (2012) 64 AILR 250-033 at [422]-[428] per Vickery J.
It follows from the law as set out above that the rescission of a termination of employment can only be effected by consent of the parties to the contract of employment, in this case, Mr Giltrap and L2SE. Although several questions are raised by the issues posited at [6] above, the key to the resolution of those issues is firstly to determine if there was consent to the rescission of the undoubted, because it is not in dispute, termination by L2SE of the contract of employment on 20 December 2019. If that question is answered in the affirmative, that is, that there was consent, then the question of whether L2SE was a small business employer as at 20 December 2019 falls away, and it is only necessary to ask and answer the question of whether L2SE was a small business employer as at 9 January 2020. If that question is answered in the negative, that is, that there was no consent, then the question of whether L2SE was a small business employer must be answered as at both 20 December 2019 and 9 January 2020, as if there was no rescission of the termination of employment on 20 December 2019 then there were two contracts of employment between Mr Giltrap and L2SE which were terminated: the first terminating on 20 December 2019, and the second commencing on 6 January 2020 and terminating on 9 January 2020.
The determination as to whether there was, or was not, a consent to the rescission of the termination of employment on 20 December 2019 is primarily dependent upon the evidence of Mr Giltrap and Mr Brennan, although some assistance may be gleaned from some of the surrounding events and circumstances.
The evidence of Mr Giltrap and Mr Brennan on this crucial issue is, perhaps understandably, directly contradictory.
Mr Giltrap says that:
(a)on 30 December 2019 he spoke to a Mr Gendall (who did not give evidence) who advised him to return to L2SE as L2SE had been purchased by a new company; and
(b)on 6 January 2020 he returned to work on the assumption that he would sign a new contract of employment, but he was not presented with any documentation.
Mr Brennan says that he spoke to Mr Giltrap and verbally informed him that he would like to rescind his termination and that he could continue to work for L2SE, and that Mr Giltrap accepted his offer and Mr Giltrap was paid wages on the basis that he had never been terminated.
Mr Giltrap was not cross-examined about his account of events, and Mr Brennan’s evidence to the contrary was not put directly to Mr Giltrap, and likewise Mr Brennan was not cross-examined on his account of events, and Mr Giltrap’s evidence to the contrary was not put directly to Mr Brennan.
The Court is therefore left with the contradictory accounts of a conversation between Mr Giltrap and Mr Brennan prior to Mr Giltrap recommencing employment with L2SE on 6 January 2020.
The Court notes that Mr Giltrap gave evidence that he had a conversation with Mr Brennan on 7 January 2020, the day after he recommenced employment with L2SE, concerning the future financing of investments in the Northern Territory operations on which L2SE was engaged. Mr Giltrap gave no evidence that he raised with Mr Brennan the issue of his contract of employment, in circumstances in which Mr Giltrap otherwise said that he had presumed he would receive new contract of employment documentation when he returned to work on 6 January 2020. In the circumstances that omission might leave open the inference that by 7 January 2020 there was an understanding that the termination of the contract of employment effected on 20 December 2019 had been rescinded.
The terms of the January 2020 Termination Letter are confusing as to both redundancy and the period of notice required and employment served by Mr Giltrap.
The subject line heading of the January 2020 Termination Letter speaks of “TERMINATION … ON NOTICE” (original emphasis). The language of the first two paragraphs, however, describes a redundancy process in almost classical terms (see R v The Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-Operative Ltd (1977) 16 SASR 6; (1977) 44 SAIR 1202, SASR at 8 per Bray CJ; Port Kembla Coal Terminal v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99; (2016) 248 FCR 18; (2016) 263 IR 344 at [160] per Jessup J) speaking of “a recent review” of “operational requirements and what this means for you”, and that “as a result of economic downturn, the full-time position of project manager is no longer required”. The attached “Redundancy Payout Summary” (original emphasis) (“Redundancy Payout Summary”), however, prescribes a cost of “$0.00” for redundancy. Presumably, the zero-sum payout was a consequence of L2SE’s position that it was a “small business employer” as defined in s 23 of the FW Act.
With respect to notice, only one week was paid to Mr Giltrap on the basis that he had not completed two full years of service, a conclusion presumably premised upon the “Commencement Date” of 30 October 2017 and the “Finish Date” of 16 January 2019 set out in the Redundancy Payout Summary, the “Finish Date” being obviously incorrect, because, as the January 2020 Termination Letter and Redundancy Payment Summary otherwise makes clear, the January 2020 termination was on 9 January 2020 with one weeks’ pay in lieu of notice.
Relevantly, and possibly significantly, the Redundancy Payout Summary shows that Mr Giltrap was paid out 72 hours of unused annual leave. Read together with the commencement date of 30 October 2017, the payout of unused annual leave in an amount which could not have been accrued from 6 to 9 January 2020, it can be inferred that L2SE treated Mr Giltrap’s employment as continuous notwithstanding the 20 December 2019 termination of employment.
As between the two primary witnesses, Mr Giltrap and Mr Brennan, Mr Brennan was the more certain in his evidence, perhaps, however, bolstered by the fact that he had access to some L2SE payroll records. Mr Giltrap’s evidence was more confusing, and particularly so with respect to the issue of what and when he was paid during the period from 20 December 2019 to 9 January 2020. There is no dispute that this period would ordinarily (that is had there been continuing employment and no termination on 20 December 2019) have been treated as a period of Christmas shutdown and annual leave, at least up until the recommencement of work on 6 January 2020. Initially, Mr Giltrap said he did not receive any pay for this period, but qualified this by saying “to my best knowledge”. He then said that he received a further fortnightly payment on or about 9 or 10 January 2020, after he was terminated, and that he was paid out his annual leave for the period 20 to 29 December 2019, but qualified this by saying that he was not 100 per cent sure of precisely what he was paid. Finally (in re-examination) he said that he “presumed” he had received payment with respect to annual leave and other accruals on 30 December 2019.
Mr Brennan’s evidence was that there was a payroll for all employees on 6 January 2020, and that it was for “work” being “primarily annual leave” over the Christmas shutdown period.
Ms Nunn’s evidence was that at a meeting at the Perth office of L2SE on 30 December 2019 with Mr Brennan she “was offered to commence employment again on 6 January 2020”, she was not paid until 20 January 2020, and that her entitlement to annual leave continued to accrue during the period from 20 December 2019 to 6 January 2020.
Curiously, neither party sought to tender payroll payment records, pay slips or bank records for Mr Giltrap indicating when and in what amount Mr Giltrap was actually paid, nor is there any evidence that Mr Giltrap sought discovery of payroll records or payslips from L2SE.
In relation to the alleged rescission of the termination of Mr Giltrap’s employment on 20 December 2019 there are two possible conclusions:
(a)that Mr Giltrap was terminated by L2SE on 20 December 2019, and then re-employed with effect from 6 January 2020 without consenting to a rescission of the 20 December 2019 termination of employment; and
(b)that he was terminated from his employment on 9 January 2020, having earlier consented to the rescission of the termination of his employment on 20 December 2019.
It is appropriate to observe that in addition to the direct contradictions in the evidence in this matter, the evidence lead, as a whole, left much to be desired, being remarkably incomplete, sketchy, and subject to cross-examination which left relevant evidence untested. The Court must, however, do the best it can having regard to the evidence before it.
In the final analysis, the Court prefers the evidence of Mr Brennan to that of Mr Giltrap (and to the extent of any inconsistency that of Ms Nunn also). That is because:
(a)Mr Brennan’s evidence was overall more certain and persuasive than that of Mr Giltrap, especially as to the conversation Mr Brennan says that he had with Mr Giltrap concerning the rescission of the 20 December 2019 termination of employment;
(b)although Mr Giltrap says that he was expecting to receive the documentation concerning a new contract of employment when he returned to work on 6 January 2020 he did not receive that documentation, and he gave no evidence that having failed to receive that documentation, that on 7 January 2020 when he had a discussion with Mr Brennan concerning the financing of L2SE projects in the Northern Territory, he raised the issue of a new contract of employment, from which it can be inferred that there was no issue as to the status of his contract of employment because it had already been earlier agreed with Mr Brennan that the 20 December 2019 termination of employment would be rescinded; and
(c)the evidence of continuity of leave entitlements, and the payout of leave entitlements following Mr Giltrap’s 9 January 2020 termination of employment, whilst arguably indicative of no more than L2SE agreeing to recognise prior accrual of leave not paid out upon the 20 December 2019 termination of employment, is in the Court’s view better understood as being indicative of Mr Giltrap consenting to the rescission of the 20 December 2019 termination of employment, particularly in circumstances where that is consistent with Mr Brennan’s evidence.
For those reasons, the Court has concluded that Mr Giltrap consented to the rescission of the 20 December 2019 termination of employment.
Whether fewer than 15 employees for purposes of redundancy
Relevant provisions of the FW Act relating to redundancy
Section 23 of the FW Act as at 20 December 2019 and 9 January 2020 defined “small business employer” as follows (original emphasis):
(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.
(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a) the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.
Section 119 of the FW Act as at 20 December 2019 and 9 January 2020 provided as follows:
Redundancy pay
Entitlement to redundancy pay
(1) An employee is entitled to be paid redundancy pay by the employer if the employee's employment is terminated:
(a)at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b)because of the insolvency or bankruptcy of the employer.
Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.
Amount of redundancy pay
(2)The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee's base rate of pay for his or her ordinary hours of work:
Redundancy pay period
Employee's period of continuous service with the employer on termination Redundancy pay period
1 At least 1 year but less than 2 years 4 weeks
2 At least 2 years but less than 3 years 6 weeks
3 At least 3 years but less than 4 years 7 weeks
4 At least 4 years but less than 5 years 8 weeks
5 At least 5 years but less than 6 years 10 weeks
6 At least 6 years but less than 7 years 11 weeks
7 At least 7 years but less than 8 years 13 weeks
8 At least 8 years but less than 9 years 14 weeks
9 At least 9 years but less than 10 years 16 weeks
10 At least 10 years 12 weeks
(3)A reference in this section to continuous service with the employer does not include periods of employment as a casual employee of the employer.
Section 121(1) of the FW Act as at 20 December 2019 and 9 January 2020 provided as follows:
121 Exclusions from obligation to pay redundancy pay
(1) Section 119 does not apply to the termination of an employee’s employment if, immediately before the time of the termination, or at the time when the person was given notice of the termination as described in subsection 117(1) (whichever happened first):
(a) the employee’s period of continuous service with the employer is less than 12 months; or
(b) the employer is a small business employer.
Whether fewer than 15 employees employed by L2SE as at 9 January 2020
Having regard to the Court’s conclusion that Mr Giltrap consented to the rescission of the 20 December 2019 termination of employment it is only necessary to determine whether L2SE had fewer than 15 employees as at 9 January 2020, and was therefore a small business employer under s 23 of the FW Act, and therefore excluded from the obligation to pay redundancy under s 119(1) of the FW Act by reason of s 121(1)(b) of the FW Act.
L2SE concedes that as at 9 January 2020 it had 14 employees for the purposes of s 23 of the FW Act: Brennan Affidavit at [7] and Annexure SB2, read with L2SE’s Submissions at [13]-[14]. For the sake of clarity, the Court lists those 14 employees, who are as follows:
(a)Benjamin Leslie Murray;
(b)Daniel Dixon;
(c)Douglas Reid;
(d)Drew Horton;
(e)Gordon Gendall;
(f)Jake Baarsoe
(g)Kane Adam Dowsen;
(h)Ren Sunley;
(i)Stephen Craig Giltrap;
(j)Vanessa Nunn;
(k)Wayne Michael Mangan;
(l)Zaldy Jnr Elan;
(m)Wayne Fowler; and
(n)Khy Jackson.
L2SE argues that the dispute as to whether there is a fifteenth employee, and therefore a requirement to pay redundancy pay if applicable, centres upon the employment status of two persons: Mr Brennan and James Ryan Mather (“Mr Mather”).
The evidence of Mr Giltrap was that L2SE employed 20 employees as at 9 January 2020. In addition to the 14 employees conceded by L2SE, and not claiming that Mr Brennan was an employee, Mr Giltrap claimed there were six other L2SE employees as at 9 January 2020, as follows:
(a)Josef Czeschka Jnr (Casual);
(b)Rohan Green;
(c)James Mather;
(d)Michael Hughes (Casual);
(e)Doreen Lind; and
(f)Gavin Satie.
The evidence of Ms Nunn was that L2SE employed 18 employees as at 9 January 2020. One person, Jake Baarsoe, appears twice in Ms Nunn’s list of employees, thereby reducing the number of employees as at 9 January 2020 to 17. In addition to the 14 employees conceded by L2SE, Ms Nunn therefore claimed there were three other L2SE employees as at 9 January 2020, as follows:
(a)Simon Brennan;
(b)James Mather; and
(c)Michael Hughes (casual).
In total, therefore, there are seven persons with respect to whom it is necessary to consider whether they were employees of L2SE as at 9 January 2020.
The Court notes that the evidence of Mr Giltrap and Ms Nunn was based on their memory of L2SE records and which employees were employed at L2SE.
Mr Brennan
The fact that Mr Brennan was a director of L2SE does not preclude him from being an employee of L2SE as a company may enter into a contract of employment with a director of the company: Lee v Lee’s Air Farming Ltd [1961] AC 12; Hamilton v Whitehead [1988] HCA 65; (1988) 166 CLR 121; (1988) 63 ALJR 80; (1988) 82 ALR 626; (1988) 14 ACLR 493; Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424; (2004) 206 ALR 387; (2004) 78 ALJR 907; [2004] Aust Torts Reports 81-752 at [45]-[52] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ
Mr Brennan’s evidence was that:
(a)there was no formal employment contract between himself and L2SE;
(b)he did not have any set or defined duties with L2SE;
(c)he had no set hours at which he was required to be at L2SE;
(d)he managed, as necessary, the affairs of the business on a day-to-day basis;
(e)he did not receive any formal remuneration from L2SE;
(f)he did not receive any fringe benefits, such as access to business property or a motor vehicle, from L2SE; and
(g)he was not contracted or consulted in any other paid form or capacity by or for L2SE : Brennan Affidavit at [3].
Mr Brennan was not cross-examined in relation to the above evidence, and the Court therefore accepts that unchallenged evidence. The Court considers that the arrangements in place between Mr Brennan and L2SE, such as they appear on the evidence, are devoid of the usual indicia of a contract of employment (as to which, see Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 96 ALJR 89; (2022) 312 IR 1 (“Personnel Contracting”), particularly at [113] per Gageler and Gleeson JJ and [174] per Gordon J, and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; (2022) 96 ALJR 144; (2022) 312 IR 74, and that Mr Brennan was not an employee of L2SE.
The Court therefore concludes that Mr Brennan was not an employee of L2SE as at 9 January 2020, and is therefore not to be counted as an employee of L2SE as at 9 January 2020 for the purposes of s 23 of the FW Act.
Mr Mather
Mr Mather commenced work at L2SE in December 2019. He was employed on a casual basis and worked the following hours: Brennan Affidavit, Annexure SB4:
(a)in December 2019 – 42 hours; and
(b)from 1 to 21 January 2020 – 60 hours.
The Court notes that 9 January 2020 falls within the second of the periods referred to above.
There is no documentary, and no reliable, evidence as to:
(a)the terms of Mr Mather’s contract of employment, other than that he was employed as a mechanical fitter on a casual basis;
(b)whether Mr Mather worked on a daily basis within the above two periods;
(c)the hours worked by Mr Mather on a daily, weekly or fortnightly basis;
(d)whether Mr Mather was contracted to work regular hours each week or fortnight, or a regular pattern of hours over a particular period of time; and
(e)Mr Mather attending work at L2SE in accordance with a predetermined, or any, roster.
In order to be counted as a casual employee for the purposes of s 23(2)(b) of the FW Act a casual employee must be one who is “employed by the employer on a regular and systematic basis”. In the case of Mr Mather this means that he must have been employed by L2SE on a regular and systematic basis as at 9 January 2020. Mr Mather did not give evidence.
There is simply too little evidence concerning the engagement of Mr Mather as a casual employee, or as to any system in regard to, or basis for, his hours worked to conclude that he was employed by L2SE on a regular and systematic basis when employed, or more particularly as at 9 January 2020, that being the particular point in time at which the assessment is to be made. Because of the paucity of evidence concerning these matters, and other matters - some overlapping - referred to at [69] above, the fact that Mr Mather went on to work regularly for L2SE on a fortnightly basis for hours exceeding 76 per fortnight before seemingly becoming a permanent full-time employee in June 2020 does not assist in the resolution of whether he was employed on a regular and systematic basis as at 9 January 2020.
The Court therefore concludes that Mr Mather, although a casual employee of L2SE, was not a casual employee who is to be counted as an employee of L2SE as at 9 January 2020 for the purposes of s 23 of the FW Act.
Josef Czeschka Jnr (Casual)
In cross-examination Mr Giltrap conceded that Mr Czeschka Jnr was not an employee of L2SE as at 9 January 2020.
The Court therefore concludes that Mr Czeschka Jnr was not an employee of L2SE as at 9 January 2020, and is therefore not to be counted as an employee of L2SE as at 9 January 2020 for the purposes of s 23 of the FW Act.
Rohan Green
In cross-examination Mr Giltrap gave evidence that he had “assumed” that Mr Green was an employee of L2SE, but no basis for that assumption was provided. Ms Lind, who worked in accounts and prepared the payroll for L2SE (but did not work past 20 December 2019) gave evidence that Mr Green was initially employed on a casual contract basis, but was then on a contract rate where an invoice was provided from his business. Whilst the evidence is scant, the preferable view on that evidence is that it does appear that Mr Green was an independent contractor working in his own business for L2SE: Personnel Contracting at [39] per Kiefel CJ, Keane and Edelman JJ and [113] per Gageler and Gordon JJ, rather than an employee, noting further that it has been said that the provision of an invoice from a person’s business for services rendered is “quite foreign to an ordinary employment relationship”: Climaze Holdings Pty Ltd (t/as Alan Croll Roofing) v Dyson (1995) 13 WAR 487 at 495 (see also 497) per Steytler J (with whom Malcolm CJ at 489 and Rowland J at 489 agreed).
The Court therefore concludes that Mr Green was not an employee of L2SE as at 9 January 2020, and is therefore not to be counted as an employee of L2SE as at 9 January 2020 for the purposes of s 23 of the FW Act.
Michael Hughes (Casual)
There is no dispute that, at least until December 2019, Mr Hughes was employed by L2SE on a casual basis. Ms Nunn gave evidence, based on memory, that Mr Hughes was employed as a regular and systematic casual employee as at 9 January 2020. Ms Lind, who prepared the payroll for L2SE until 20 December 2019, gave evidence that Mr Hughes was not employed past December 2019. Mr Giltrap gave evidence that Mr Hughes walked out of a meeting concerning redundancy, but does not give a date, but the Court infers from other evidence that that meeting would have been on or before 6 January 2020. From Mr Brennan’s evidence as to full-time and casual employees employed as at 9 January 2020, evidence based upon the payroll records of L2SE, it can be inferred that Mr Hughes was not employed by L2SE as at 9 January 2020. The Court considers that the evidence weighs in favour of concluding that Mr Hughes was not an employee of L2SE as at 9 January 2020, based in particular upon Ms Lind’s evidence that he was not employed past December 2019, Mr Brennan’s evidence which does not include him in the employees for which there were payroll records at 9 January 2020, and Mr Giltrap’s evidence that he walked out of meeting concerning redundancy which would have been on or before 6 January 2020. That evidence is to be preferred to the memory based evidence of Ms Nunn that Mr Hughes was a regular and systematic casual employee as at 9 January 2020.
The Court therefore concludes that Mr Hughes was not an employee of L2SE as at 9 January 2020, and is therefore not to be counted as an employee of L2SE as at 9 January 2020 for the purposes of s 23 of the FW Act.
Doreen Lind
Ms Lind’s evidence was that she was employed by L2SE until 20 December 2019.
The Court therefore concludes that Ms Lind was not an employee of L2SE as at 9 January 2020, and is therefore not to be counted as an employee of L2SE as at 9 January 2020 for the purposes of s 23 of the FW Act.
Gavin Satie
Mr Giltrap gave evidence that he was not 100 per cent sure that Mr Satie was employed by L2SE as at 9 January 2020. Ms Nunn gave evidence, based on memory, of the persons employed by L2SE as at 9 January 2020 which did not include Mr Satie. From Mr Brennan’s evidence as to full-time and casual employees employed as at 9 January 2020, evidence based upon the payroll records of L2SE, it can be inferred that Mr Satie was not employed by L2SE as at 9 January 2020, as Mr Brennan’s evidence does not include him in the employees for which there were payroll records at 9 January 2020.
The Court therefore concludes that Mr Satie was not an employee of L2SE as at 9 January 2020, and therefore not to be counted as an employee of L2SE as at 9 January 2020 for the purposes of s 23 of the FW Act.
Conclusion re number of employees as at 9 January 2020
Having regard to L2SE’s concession that as at 9 January 2020 it employed 14 employees for the purposes of s 23 of the FW Act, and the Court’s conclusion that none of the seven employees considered above were as at 9 January 2020 employees for the purposes of s 23 of the FW Act, the Court has concluded that as at 9 January 2020 L2SE employed 14 employees for the purposes of s 23 of the FW Act.
Conclusions and Orders
The Court has concluded that:
(a)Mr Giltrap consented to the rescission of the 20 December 2019 termination of employment; and
(b)as at 9 January 2020 L2SE employed 14 employees for the purposes of s 23 of the FW Act.
The matter will be adjourned to a directions hearing at 11.00 am ACST/9:30 am AWST on 9 September 2022 by videolink at which time the parties can make submissions as to whether any declarations or orders are necessary as a consequence of these Reasons for Judgment, and as to what, if any, further directions are required to be made.
Having regard to the provisions of s 570 of the FW Act the costs of this bifurcated hearing, if any, are reserved.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 31 August 2022
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