Gordon Hunt v Sydney Glass Warehouse Pty Ltd

[2019] FWC 3793

[2019] FWC 3793

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gordon Hunt
v
Sydney Glass Warehouse Pty Ltd
(U2019/2898)

DEPUTY PRESIDENT DEAN SYDNEY, 13 JUNE 2019

Application for an unfair dismissal remedy – minimum employment period.

[1] On 15 March 2019 Mr Gordon Hunt made an application to the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 for a remedy in respect of an alleged unfair dismissal. Mr Hunt identified the respondent as ‘Sydney Glass Warehouse (SGW)or Global Trader’.

[2] Mr Sheriff Taylor, Director of SGW completed an Employer’s Response to the application on 5 April 2019. In answer to the question of the date Mr Hunt began working for the employer, Mr Sheriff stated that “Gordon worked for Global Trader which was put into Liquidation, he started working for this company on the 13/11/17. Gordon started working for Sydney Glass Warehouse as a yards man on the 1/10/18 on a 6 month contract”.

[3] The Employer’s Response further stated that Mr Hunt was dismissed on 5 March 2019 for performance and behaviour issues, but did not explicitly raise any jurisdictional objection to the application.

[4] The matter was scheduled for conciliation on 11 April 2019, however the conciliation did not take place as there was no appearance on behalf of SGW. The Conciliator made several attempts to contact Mr Taylor without success. In a second email sent to Mr Taylor after the commencement time of the conciliation conference, he was advised that if he did not contact the Commission and the conference was vacated, the matter may proceed to arbitration.

[5] Email correspondence was received from Mr Taylor later that morning in which he stated, amongst other things, that Mr Hunt: “has no case he was let go within his 6 months probation period after 3 verbal warnings and 1 written warning”.

[6] This assertion of SGW gives rise to the question of whether Mr Hunt has completed the requisite minimum employment period to be a person being protected from unfair dismissal under s.382(a) of the Act. If the minimum period of employment (six months; or in the case of small business employers, twelve months) has not been served, Mr Hunt is not protected from unfair dismissal and his application is beyond the jurisdiction of the Commission.

[7] This jurisdictional issue which requires determination was conveyed to Mr Hunt and Mr Taylor in written correspondence on 24 May 2019. Both were asked to provide information and/or material to support their respective contentions, and were specifically requested to confirm whether SGW and Global Trader were related entities.

[8] Mr Hunt wrote to the Commission on 22 May 2019 to provide his response. He said that he was employed by Ms Jessica Chol and Mr Taylor in November 2017. He had never received any contract nor was he advised of the name of the entity that employed him.

[9] Mr Hunt said that he initially received payslips and bank deposits which indicated Global Trader was the entity paying his wages until 8 January 2018. It was his understanding that Global Trader has since been placed into external administration. From 15 January 2018 he started receiving payslips and bank deposits from another entity called ‘Central Coast Tiles Pty Ltd’, and his superannuation records indicated that this entity had made his superannuation contributions until 30 June 2018.

[10] He also said that he was on occasion required to work at ‘Central Coast Tile and Stone Warehouse’ which he believed was operated by Ms Chol in partnership with Mr Taylor.

[11] Mr Hunt said that he has not received a payslip since 23 April 2018, and from 24 July 2018 until 27 February 2019 his wages have been deposited to his bank account primarily by Mr Taylor.

[12] Mr Hunt said that at all times he was of the understanding he was employed by Ms Chol and Mr Taylor, with whom he had regular contact, while managing incoming and outgoing orders for the shopfront and business.

[13] Material provided by Mr Hunt in support of his contention included:

1. Email correspondences between Mr Hunt and Ms Chol (bearing the name of another entity ‘Tile Liquidator’) in which reference was made to Mr Taylor;

2. Copies of some ASIC search results for the various business and company names referred to in his written submissions;

3. Some payslips; and

4. A document outlining which entity or person had paid Mr Hunt for each pay period from his commencement to his termination.

[14] He said that he was advised of his dismissal by text message from Mr Taylor on 5 March 2019, with no prior warnings.

[15] In response, Mr Taylor sent two separate emails to the Commission on 24 May 2019. The emails contained criticism of Mr Hunt’s work ethic and performance and the reasons for his dismissal, but did not address matters relevant to the jurisdictional issue. Mr Taylor’s email address was in the name of “Central Coast Glass Warehouse”.

[16] Further correspondence was sent to Mr Taylor on 27 May 2019 requiring him to provide material relating to the minimum employment period. He was also asked whether he wished to be heard in person. No response was received from Mr Taylor.

[17] Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period. The meaning of minimum employment period is set out in s.383 of the Act:

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

[18] The Act allows service with the old employer and the new employer be deemed as continuous service in certain circumstances for the purpose of the minimum employment period.

[19] One such circumstance is where the old employer and the new employer are associated entities as defined by s.50AAA of the Corporations Act 2001, and the employee becomes employed by the new employer within three months of ceasing employment with the old employer.

[20] Having regard to the information provided on the Employer’s Response and the material provided by Mr Hunt, I find that SGW and Global Trader are associated entities. The Employer’s Response, completed by Mr Taylor, confirmed that Mr Hunt commenced working with Global Trader on 13 November 2017, and then commenced with SGW on 1 October 2018 after Global Trader was put into liquidation. There is no suggestion that Mr Hunt did not commence with SGW within three months of ceasing with Global Trader, and Mr Hunt’s pay records show that he continued to receive payments from Mr Taylor without interruption. Mr Hunt says since the commencement of his employment in November 2017, he has worked continuously under the direction of Mr Taylor. Mr Taylor has not asserted, despite multiple opportunities to do so, that SGW and Global Trader are not related.

[21] While the information before me is limited, I am satisfied and find that Mr Hunt has completed the minimum employment period and is a person protected from unfair dismissal.

[22] Accordingly, Mr Hunt’s substantive application will proceed to further hearing.

DEPUTY PRESIDENT

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