Jack Milson v Amalgamated Pest Control Pty Ltd
[2011] FWA 1626
•23 MARCH 2011
[2011] FWA 1626
The attached document replaces the document previously issued with the above code on 23 March 2011.
The document has been edited to correct a typographical error under the heading ‘Hearing details’ by replacing the year ‘2010’ with ‘2011’.
Rebecca Lee
Associate to Commissioner Bissett
Dated 24 March 2011.
[2011] FWA 1626 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jack Milson
v
Amalgamated Pest Control Pty Ltd
(U2010/1932)
COMMISSIONER BISSETT | MELBOURNE, 23 MARCH 2011 |
Application for unfair dismissal remedy - jurisdiction - minimum employment period.
[1] Mr Jack Milson has made an application for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) against Amalgamated Pest Control Pty Ltd (APC).
[2] APC has raised a jurisdictional objection to the matter being heard on the grounds that Mr Milson was not employed by APC for a period greater than six months.
[3] The Act establishes the basis on which a person is protected from unfair dismissal:
382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
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.
384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;
the period of service with the old employer does not count towards the employee’s period of employment with the new employer.
[4] APC is not a small business.
[5] The matter to be determined in this case is if Mr Milson was employed for six months at the time his employment was terminated. Mr Milson’s employment was terminated on 26 November 2010. For him to meet the requirements of s.383(a) of the Act he will need to show he was employed by APC by 26 May 2010.
The Circumstances of Mr Milson’s relationship with APC
Casual employment
[6] Mr Milson was employed by APC in March 2010 as a casual employee undertaking administrative duties in the Victorian office whilst another employee was absent on four weeks’ leave. 1 Mr Milson was paid for:
- 32 hours’ work on 9 March 2010;
- 32 hours’ work on 16 March 2010; and
- 20 hours’ work on 23 March 2010.
[7] There is no evidence that Mr Milson was employed on a regular and systematic basis or that, during this period of casual employment, he had a ‘reasonable expectation of continuing employment by the employer on a regular and systematic basis’. 2
[8] Whilst Mr Milson suggests he was employed in February 2010, the evidence of Mr Farr, the General Manager of APC, (including pay slips) and Mrs Milson (the Victorian Regional Manager 3) is that he commenced as a casual employee in March.
Training
[9] Mr Milson’s evidence is that he commenced as a trainee for APC in March 2010 4 and whilst a trainee he undertook theoretical and practical components of his training. Further, he says he believed he was employed by APC at this time but was working for free (ie no pay) for a period of time.5
[10] Whilst Mr Milson was working as a casual employee he indicated an interest in working in pest control and approached the Victorian Regional Manager about becoming a trainee pest controller. 6 The Regional Manager subsequently approached Mr Farr with respect to Mr Milson becoming a trainee. The Regional Manager’s evidence is that Mr Farr informed her ‘that if Mr Milson demonstrated his initiative and keenness to becoming a fully qualified pest controller with APC by beginning his training (both practical and theoretical) with no pay for a month or so, APC would continue this arrangement on a fully paid basis.’7
[11] Mr Farr’s evidence is that on 11 May 2010 he, along with the CEO of APC, attended the Melbourne office and met with the Regional Manager to discuss matters associated with that office. He says that at that meeting it was indicated that they intended
to employ a “Trainee Pest Management Technician” in or around September/October of 2010. At this point the [Victorian Regional] manager suggested that her son Jack Milson would be a likely candidate and he could start immediately. Both Roland and I rejected this suggestion on the basis that our budget was for a start in September/October of 2010. The manager then asked if Jack could enroll [sic] and commence training with APC training in his own time, then at the time we were ready to employ, Jack could submit an application. We agreed with this suggestion but on the basis that:
(a) There was no guarantee of employment; and
(b) The candidate (Jack) had to pay his own enrolment fees; and
(c) The candidate (Jack) could only partake in the practical side of training if he arranged his own insurance and supplied his own Personal Protective Equipment (PPE) and work uniforms. 8
[12] The Regional Manager’s evidence is that the issue of putting a trainee technician on in October/September was not discussed. 9 It is her evidence that, following the discussion she says took place in April, she passed information on to Mr Milson and a ‘verbal agreement was entered into with Mr Milson and APC, that he would both begin his theory papers and also begin practical training’.10 She further stated that
Jack signed a training agreement on 19 May and it was taken from then that he would be shortly put on, you know, full-time paid employment. On 3 June he did receive his papers, his theory papers. Between 19 May and 3 June he was out on the road practically with technicians in between those times and he did begin on 3 June his theory papers. 11
[13] The Regional Manager gave evidence that the final authority on employment matters rested with Mr Farr. 12
[14] The Regional Manager’s evidence is that on 2 June 2010 she asked Mr Farr about Mr Milson’s full pay start date and that he did not respond. 13 Her email to Mr Farr states in part:
I really would like you to seriously consider APC Melbourne putting on Jack as a trainee asap. 14
[15] The Regional Manager says that she again asked Mr Farr about Mr Milson’s start date on 28 July 2010, 15 to which Mr Farr responded on 30 July 2010 that he would ‘discuss start date [with her] on Monday’.16 She again raised the matter on 12 August 2010,17 13 August 201018 and 18 August 2010.19
[16] The Regional Manager also gave evidence that when the budget was done for the 2010/11 financial year it showed Mr Milson as employed for the full year. 20 Mr Farr’s evidence is that a ‘Trainee/Jack Milson’ was factored into the budget for employment for 36 weeks in the 2010/11 financial year - that is that the position would start in the second quarter of the financial year.21
[17] Mr Farr produced evidence that shows Mr Milson enrolled in the training course ‘APCT10104 - Introduction to Pest Management’ on 19 May 2010. 22 Mr Milson paid the course enrolment and training material fees on 3 June 2010.23
[18] The training database maintained by APC shows that Mr Milson’s enrolment date in the training course was 3 June 2010. 24
[19] Whilst undertaking training Mr Milson submitted a number of pieces of theory work for assessment. An assessment summary document indicates that Mr Milson was assessed against a range of matters over the period 16 July 2010 - 1 October 2010. The documentation shows him competent in a number of areas but not yet competent in some others. 25
[20] Whilst the Regional Manager suggests that prior to 19 May 2010 Mr Milson undertook an induction program and signed confidentiality documents ‘required [of] all other technicians’ 26 nothing was produced to verify this and no evidence of this was given by Mr Milson.
[21] Mr Milson gave evidence that neither he nor anyone else at APC considered his position to be as a volunteer or work experience and that he undertook all of the duties of a trainee ‘from the start’. 27 Mr Milson gave no evidence as to actual dates he says he worked with technicians or the extent of any work he undertook in a supervised or other capacity.
[22] APC is a Registered Training Organisation (RTO) under the Australian Quality Training Framework with the Queensland Training and Employment Recognition Council. 28 The scope of its registration allows it to offer a Certificate III in Asset Maintenance (Pest Management - Technical) qualification.
[23] Mr Farr’s evidence is that he has, in the past, allowed relatives of employees who are interested in entering the pest control industry to commence the training program offered by APC prior to commencing employment. 29
Employment
[24] APC agrees that on 1 September 2010 Mr Milson commenced employment with APC. He was employed as a trainee technician continuing the studies commenced in June 2010. Mr Milson completed a ‘Personnel Information Form’ which indicated he was starting with APC on ‘01/09/10’. 30 This document was signed by Mr Milson.
[25] On 8 October 2010 a ‘Training Advice Notice’ was completed which included a recommendation that Mr Milson undertake practical experience for the following four weeks. 31 The document was signed by Mr Greg Hunt - an employee of APC and an accredited assessor. This document however provides no information as to the employment status of Mr Milson at any time. It is to be remembered that the matter to be decided here is the length of Mr Milson’s employment, not his competence or performance at the time of or leading up to the termination of his employment.
Submissions
[26] Mr Alan Milson, representing Mr Jack Milson, submitted that:
- In April 2010, immediately following the cessation of his period of casual employment, Mr Milson’s job description changed to that of a probationary trainee technician;
- In April 2010 Mr Milson was afforded all of the necessary equipment to allow him to perform his duties as a trainee technician including PPE gear;
- As part of the agreement with APC, Mr Milson was to receive no monetary benefit (ie no pay) for three to four weeks but would be provided with other benefits including on and off the job training, in exchange for which he would perform work as a trainee for APC;
- The Department of Health (Vic) requires that any person involved in pest control, including as a trainee, who is in receipt of a ‘fee or reward’ must have a licence. A trainee is required to hold a special licence but cannot get such a licence unless employed in the industry. If APC had applied for such a licence for Mr Milson as required, his employment status would not be in question;
- APC failed to pay superannuation for Mr Milson;
- APC failed to meet its obligations under the relevant awards and industrial instruments, APC is not professionally run and the budget documents submitted by APC have been falsified;
[27] APC submitted that:
- Mr Milson worked on a casual basis in the administration area of the Melbourne office for three weeks commencing 2 March 2010. He worked a total of 84 hours across the three weeks. This casual employment is irrelevant as it was not regular and systematic and was in fact relief for a regular employee on leave.
- Mr Milson commenced as a paying student on 3 June 2010;
- Any on the job training as a part of the training was ‘at its highest’ a vocational placement;
- Mr Milson became an employee on 1 September 2010;
- Where there is conflicting evidence, the evidence of Mr Farr should be preferred to that of the Regional Manager
Consideration
[28] It should not pass without comment the need for clarity in entering arrangements for training, vocational placement and/or employment. A company the size of APC would be expected to have established human resource practices such that misunderstandings of employment status cannot occur. APC is a Registered Training Organisation that may have individuals undertaking training who are not employees of APC but also have trainees who are employees of APC. It is not unreasonable to expect that it have in place appropriate communications with trainees as to their status as trainees and their relationship to APC as employees.
[29] That said, a number of claims have been made by Mr Milson’s advocate with respect to the professional nature of APC, falsification of records (the budget) by APC and APC failing to meet its obligations under relevant industrial instruments. There was no evidence produced to support any of these assertions.
[30] The budget details submitted in evidence by the Regional Manager and those submitted by Mr Farr differ in terms of what they show was budgeted with respect to Mr Milson for 2010/11. Mr Farr suggested this document is an ‘uncontrolled’ document within the organisation - the veracity of any ‘version’ was therefore open to question. I have no way of knowing the creation date of the budget document tabled in these proceedings by the Regional Manager, when it may have been edited or by whom and whether they had authority to undertake such editing. In any event the document is a budget and no more. It may tell me of the intentions of APC but is not evidence of any action actually taken by APC with respect to the employment of Mr Jack Milson. Even if the Regional Manager is correct and Mr Milson was to be employed from 1 July 2010, he would not have been employed for six months at the time of the termination of his employment.
[31] Submissions were made as to the skills and abilities of Mr Milson. These are not a relevant consideration in the determination of the jurisdictional point as to whether or not Mr Milson was employed for at least six months at the time of the termination of his employment. Should this application fail and the application for relief from unfair dismissal proceed, evidence and submissions as to the performance of Mr Milson will be relevant at that time.
[32] Matters associated with whether or not Mr Milson held the appropriate licence as required by the authorities in Victoria are not relevant to these proceedings. Mr Milson’s advocate submits such a licence can only be issued if the trainee is employed in the pest control industry, although I note Mr Aliotta’s evidence that without such a licence even a non-employed trainee cannot handle pesticides. I make no findings with respect to the requirements of the licence.
[33] Mr Milson was enrolled in ‘Introduction to Pest Management’. Successful completion of this course would have resulted in him being awarded a Certificate of Attainment. That Mr Milson was undertaking a specific training program is not enough to demonstrate that he was employed by APC at the time.
[34] Mr Aliotta was the Victorian Operations Manager at the relevant time. Due to illness he was permitted to give evidence by phone. In any event the evidence given by him is of no assistance in determining the commencement of Mr Milson’s employment.
Findings
[35] The matter to be determined in this case is if Mr Milson and APC had entered into a contract of employment prior to 26 May 2010. The elements of a contract are set out in Macken’s Law of Employment as follows:
- There must be an “intention” between the parties to create a legal relationship, the terms of which are enforceable.
- There must be an offer by one party and its acceptance by the other.
- The contract must be supported by valuable consideration.
- The parties must be legally capable of making a contract.
- The parties must genuinely consent to the terms of the contract.
- The contract must not be rendered ineffective by reason of conduct which is illegal or contrary to public policy. 32
[36] It is against each of these that the conduct of APC and Mr Milson should be considered. It should be remembered that a contract to undertake training and a contract of employment are separate and distinguishable. The existence of one contract is not indicative of the other.
Intent to create a legal relationship
[37] On the basis of the evidence the only legal relationship that was clearly intended to be created by both parties prior to 1 September 2010 is an agreement that allowed Mr Milson to undertake training through the APC RTO.
[38] I accept the evidence of Mr Farr that he rejected a suggestion that Mr Milson be employed as a trainee in April or May 2010 but that he did agree that Mr Milson could enrol in the APC training course in his own time. I also accept the evidence that the Regional Manager was told Mr Milson could apply for the trainee technician job when it became available. This conclusion is supported by the email from the Regional Manager dated 2 June 2010 to Mr Farr where she asked Mr Farr to seriously consider APC Melbourne putting on Jack as a trainee. Had it already been agreed that Mr Milson was employed by APC in April or May but that he was working for 3-4 weeks without pay then the question surely would have been to the effect of when Mr Milson might start to receive income, not that he be ‘put on as a trainee’.
[39] I have examined the budget papers submitted by Mr Milson and by APC. I do not make any findings as to whether these have been altered by any party but in any event I find the existence of a budget line is not evidence of intent to create an employment relationship by APC and Mr Milson. If I am wrong on this, the budget papers evidence at best the possible existence of the employment relationship from 1 July 2010. Mr Milson would, in such an event, not have been employed for 6 months at the time of the termination of his employment.
[40] I do find that Mr Milson and APC entered into a contract for training. This is evidenced by the course enrolment form and the payment of enrolment and material fees. A contract for training is not a contract of employment. In any event the training contract did not commence until 3 June 2010, so even if it did also involve a contract of employment (which I find it does not) it would not be sufficient to provide Mr Milson with the minimum six months’ employment necessary to attract Fair Work Australia’s jurisdiction.
[41] I find there was no intent to create a legal employment relationship in April or May of 2010 between APC and Mr Milson. I further find that the employment contract was entered into in September 2010.
Offer and acceptance
[42] The second leg to the formation of a contract is that there must be a formal offer by one party and acceptance by the other.
[43] In this case a formal offer with respect to training was made by APC and was accepted by Mr Milson.
[44] The Regional Manager claims that ‘a verbal agreement was entered into with Mr Milson and APC’ with respect to his employment. Mr Milson says that the offer was conveyed to him by the Regional Manager, although in her oral evidence she agreed that the authority to employ rested with Mr Farr. There is no evidence that Mr Farr approved the making of such an offer to Mr Milson. On this matter I prefer the evidence of Mr Farr to that of the Regional Manager. I find that Mr Milson assumed he was employed because of information provided to him by the Regional Manager but that the Regional Manager had no authority to offer employment to Mr Milson.
[45] It is inescapable in this matter that the Regional Manager is Mr Milson’s mother. I am sure that she was keen to see Mr Milson employed and, Mr Milson having shown some interest in pest control, was happy to see him employed by the Company for whom she worked. To this end I accept that she pursued Mr Farr in an effort to gain employment for Mr Milson. However, the weight of the evidence leads me to find that there was no offer of employment by APC in May 2010. Such an offer was not made until August/September of 2010.
Valuable consideration
[46] The formation of any contract requires some valuable consideration. In an employment context this is the exchange of labour for fair payment of wages. This is a two way exchange. Each party provides something of real value in exchange for what the other offers.
[47] Mr Milson’s advocate suggests that Mr Milson received training that would lead to him being a qualified technician while APC had the benefit of his labour. In this respect there was a reward for the work effort. Whilst in some circumstances such a submission may have merit it is not the case that in all circumstances where training is provided an employment relationship is established.
[48] Mr Milson paid fees for his training course and paid for training materials. He received no wages or other payments from APC. For the payment of his fees his training output was assessed by a qualified assessor and he had access to a RTO.
[49] I do not accept the evidence of the Regional Manager or Mr Milson that he was employed without pay from May 2010. I find that Mr Milson was given the opportunity to undertake some training for which he paid fees and paid for his materials. There was no ‘valuable consideration’ such to establish that an employment contract existed from May 2010.
Other matters
[50] It is not necessary to consider the remaining indicia.
Conclusion
[51] I find that the period of casual employment of Mr Milson by APC was not regular and systematic such that it could contribute to a period of continuous service with APC.
[52] Based on my findings above I find that Mr Milson was not employed by APC prior to 1 September 2010 (except for a small period of casual employment). Mr Milson was not employed by APC for at least six months at the time his employment was terminated.
[53] The jurisdictional objection of APC is upheld.
[54] Mr Milson is therefore not protected from unfair dismissal. The application made by him under s.394 of the Act is therefore dismissed. An order to this effect will issue today.
COMMISSIONER
Appearances:
A. Milson for the Applicant.
M. Farr for the Respondent.
Hearing details:
2011.
Melbourne:
11 March.
1 Exhibit M1 paragraph 2.
2 Section 384(2)(a)(ii).
3 The Regional Manager at the time in question was Mrs Melanie Milson, the Applicant’s mother.
4 Transcript PN207.
5 Transcript PN208.
6 Exhibit M1 paragraph 2.
7 Exhibit M2 paragraph 3.
8 Exhibit APC1 paragraph 4.
9 Exhibit M2 paragraph 5. See also email 2.
10 Exhibit M2 paragraph 4.
11 Transcript PN271.
12 Transcript PN292.
13 Exhibit M2 paragraph 6(a)(i).
14 Exhibit M2 paragraph 6(a)(i) and email 3.1.
15 Exhibit M2 paragraph 6(a)(iii).
16 Exhibit M2 paragraph 6(a)(iv) and email 3.4.
17 Exhibit M2 paragraph 6(a)(v) and email 3.5.
18 Exhibit M2 paragraph 6(a)(vi) and email 3.6.
19 Exhibit M2 paragraph 6(a)(vii) and email 3.7.
20 The budget email.
21 Exhibit APC2 paragraph 14, attachment 4.
22 Exhibit APC1 attachment 1.
23 Exhibit APC1 attachment 2.
24 Exhibit APC2 attachment 4.
25 Exhibit APC1 attachment7.
26 Exhibit M2 paragraph 7.
27 Exhibit M1 paragraph 5.
28 Exhibit APC1 attachment 3.
29 Transcript PN51.
30 Exhibit APC1 attachment 5.
31 Exhibit APC1 attachment 8.
32 Sappideen, C., O’Grady, P., Waburton, G., Macken’s Law of Employment (6th ed.), p112.
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