Giuseppe Panfilo Ottaviano v Two Kings Investments Pty Ltd

[2020] FWC 157

[2020] FWC 157

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Giuseppe Panfilo Ottaviano
v
Two Kings Investments Pty Ltd
(C2019/3242)

DEPUTY PRESIDENT CROSS SYDNEY, 13 JANUARY 2020

Application to deal with contraventions involving dismissal - extension of time consideration.

[1] On 23 May 2019, Mr Giuseppe Panfilo Ottaviano (the Applicant) lodged a Form F8 general protections application involving dismissal pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act) (the Application). The Applicant began working for Two King Investments Pty Ltd (ABN 93 605 944 616) (the Respondent) on 17 July 2017. In the Application, the Applicant alleged that he was notified of his dismissal on 6 May 2019, with his dismissal taking effect on 1 May 2019, some five days earlier. This incongruity forms the basis of my consideration of the Application.

[2] The Respondent, in its Form F8A Response to General Protections Application (the Employer’s Response), raised a jurisdictional objection that the Applicant was dismissed on 1 May 2019, by a different corporate entity Equity Transport Group Pty Ltd (ETG).

[3] Applications to deal with contraventions involving dismissals must be made within 21 days after a dismissal took effect, or in such further time as the Fair Work Commission (the Commission) may allow. If the dismissal took effect on 1 May 2019, the Application was lodged one day outside the 21 day period within which such an application could have been made. If the dismissal took effect on 6 May 2019, the Application was lodged within time. It is this issue I must determine.

[4] On 17 July 2019, I convened a directions hearing to outline the way the Applicant would make submissions that he should be allowed an extension of time to file his Application. It is noted the Respondent did not participate in the directions hearing. The Applicant agreed to a timetable for the filing and serving of material addressing the Application. The Respondent, having not participated in the directions hearing, was subsequently directed to adhere to a timetable for filing and serving its material. The Applicant also agreed that the Application would be determined upon the materials filed, unless either party made an application for a hearing of evidence, and that application was granted. In the directions hearing, the Applicant was specifically directed to the five factors that must be taken into account pursuant to paragraphs (a) to (e) of sub-section 366(2) of the Act.

[5] On the same date, written Directions were issued from my Chambers to the parties in the following terms:

“1. The Applicant (Mr Giuseppe Panfilo Ottaviano) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions addressing his out of time application, together with any witness statements and other documentary material the Applicant intends to rely on in support of his application in this matter by no later than 4.00pm on 22 July 2019.

2. The Respondent (Two King Investments Pty Ltd) is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, together with any witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by no later than 4.00pm on 12 August 2019.

3. The Applicant (Mr Giuseppe Panfilo Ottaviano) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions in reply, together with any witness statements and other documentary material in reply to the Respondent’s materials by no later than 4.00pm on 19 August 2019.

4. The Application will thereafter be determined on the materials filed by the parties, unless the Application is made and granted for a formal hearing of the matter.” [Original emphasis removed]

The Evidence and Submissions

[6] Both the Applicant and the Respondent filed the following materials pursuant to the Directions:

(a) On 18 July 2019, the Applicant filed a brief Outline of Submissions (the Applicant’s Submission) taking the form of a one page email to my Chambers;

(b) On 12 August 2019, the Respondent filed an Outline of Submissions (the Respondent’s Submission) with annexures.

[7] On 20 August 2019, my Chambers contacted the Applicant by email asking if the Applicant intended to file a reply to the Respondent’s Submission.

[8] On 21 August 2019, my Chambers received an email reply from the Applicant confirming that he had not received a copy of the Respondent’s Submission and, as such, he was not in a position to file a reply Submission. The Applicant also indicated in the same correspondence that he sought to “put this traumatic part of my life behind [him] and will therefore accept any decision or ruling the Commission makes,” adding that his “frame of mind prevents [him] from having the ability to prepare any more written submissions or written responses into this matter.”

[9] On 13 November 2019, my Chambers received the following correspondence from the Applicant:

“I am pleased to inform you that my health has improved significantly over the last few weeks. Given this (below) confirmation that matter has not been finalised, could I ask Chambers to consider requesting a belated reply from me on any outstanding matters related to the claim. I am conscious that I brought the matter to the attention of the FWC yet did not follow it through properly - due to my poor health. If you do give me a chance to put my appropriate energy behind this matter then it would be greatly appreciated and would help make up for my inability to assist you earlier. Alternatively, if Chambers does not require any other information from me then I am happy to wait for their decision.”

[10] On 22 November 2019, my Chambers provided a copy of the Respondent’s Outline of Submission to the Applicant. The Applicant was directed to file a reply, if he still wished to do so, by 4.00pm on 2 December 2019.

[11] On 2 December 2019, pursuant to the amended Directions, the Applicant filed a reply submission in reply (the Applicant’s Reply Submission), together with annexures.

The Relevant Facts

[12] While there are a number of disputes in the evidence of each party relating to the Applicant’s employment or engagement status, and the cessation of that employment or engagement, the following facts and events are largely undisputed:

(a) The Applicant was engaged by the Respondent as a chauffeur driver. The limousine that the Applicant drove was owned and maintained by the Respondent.

(b) The Applicant was paid weekly by the Respondent. The Respondent described the relationship with the Applicant in both the Employer’s Response and the Respondent’s Submission as follows:

“The Contractor (the Applicant) was paid by Two King Investments, using his ABN”, and “Two King Investments Pty Ltd is not a ‘Sham Contractor’, and meets all relevant tax obligations in reimbursing Contractors for work performed.”

(c) While the Respondent refers to the Applicant having a “previous role” with an entity called Enroute Corporate Cars as a Contractor on an identical basis, at all relevant times for the purposes of this Application, the Applicant was solely providing services to ETG. It would appear from a number of emails attached to the Applicant’s Reply Submission that ETG would correspond directly with the Applicant outlining days, times and duties required of him. Occasionally, but apparently not ordinarily, those emails would be also copied to Mr Cameron Price of the Respondent.

(d) On 1 May 2019, the Applicant participated in a meeting with Mr Khoury, Operations Manager of ETG, in relation to a customer complaint. During that meeting, the Applicant was advised that he would “no longer be asked to drive clients of [ETG]”which he described as “effectively eliminating all of my work.” The Applicant submitted that he was informed by the ETG Operations Manager during that meeting that the Operations Manager would make “contact” with the Respondent “first thing in the morning” the following day.

(e) The Applicant waited for four days with the Respondent’s limousine parked in his driveway and no work from ETG.

(f) On 5 May 2019, the Applicant sent an email to Mr Price of the Respondent as he had not heard from the Respondent.

(g) On 6 May 2019, Mr Price telephoned the Applicant and advised him that there was nothing he could do, “thanked me for my work and discussed car handover arrangements.” The Respondent specifically adopts the words within the quotation marks in the previous sentence in the Respondent’s Submissions.

CONSIDERATION

[13] The primary issue for determination is the date of dismissal. If, as observed previously, the dismissal occurred on 6 May 2019, the Application would not be out of time. As noted at paragraph [2] above, the Respondent alleges that the Applicant was dismissed on 1 May 2019, by another corporate entity, ETG.

[14] The Respondent does not explain how ETG was authorised to terminate the relationship it had with the Applicant, but even if it was so authorised, the conversation that occurred on 1 May 2019, fell well short of a dismissal. The Applicant was informed by the ETG Operations Manager that he would make “contact” with the Respondent “first thing in the morning” the following day. The Applicant’s engagement status, whether as a contractor or employee, was clearly in abeyance.

[15] It was only after contact was instigated by the Applicant in his email of 5 May 2019, that the telephone call occurred on 6 May 2019, in which Mr Price advised the Applicant that there was nothing Mr Price could do, “thanked me for my work and discussed car handover arrangements.” It was in that telephone call that the Applicant was dismissed.

Conclusion

[16] As the Applicant was dismissed on 6 May 2019, his Application is not out of time.

[17] The jurisdictional objection with respect to the matter being filed out of time is dismissed and I so order. The Application will be listed for conciliation.

DEPUTY PRESIDENT

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