Jacquelyn Laurent Goeman v Cangar Pty Ltd as Trustee for the Tsigaras Family Trust (ABN 39 198 561 185)
[2022] FWC 3283
•13 DECEMBER 2022
| [2022] FWC 3283 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jacquelyn Laurent Goeman
v
Cangar Pty Ltd as Trustee for the Tsigaras Family Trust (ABN 39 198 561 185)
(U2022/9715)
| COMMISSIONER CIRKOVIC | MELBOURNE, 13 DECEMBER 2022 |
Unfair dismissal application – jurisdictional objection – minimum employment period – objection upheld – application dismissed.
On 2 October 2022, Mrs Jacquelyn Laurent Goeman (Mrs Laurent Goeman) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Cangar Pty Ltd as Trustee for the Tsigaras Family Trust (Cangar). Mrs Laurent Goeman was employed in the position of Practice Manager. It is not in dispute that Mrs Laurent Goeman commenced her employment on or about 17 January 2022 and that her termination took effect on 14 September 2022. There is a contest as to whether the Applicant resigned her employment or was terminated at the initiative of the employer. The resolution of that matter is not relevant to the question before me.
Cangar has raised a jurisdictional objection that Mrs Laurent Goeman had not completed the minimum employment period (MEP) pursuant to s.382 of the Act at the time of termination. Cangar asserts that it employed 3 staff at the time of termination and is a small business employer for the purposes of s.382 of the Act.[1] Mrs Laurent Goeman submits in her F2 application in answer to question 1.3, that Cangar employed between “1-14” employees at the time of termination. Directions were issued by my Chambers for the filing of material as to Cangar’s jurisdictional objection. Following the receipt of Cangar’s materials, my Chambers wrote to the parties requesting pay records and wage slips from Cangar as to the number of employees engaged by it at the time of Mrs Laurent Goeman’s termination.
Following receipt of this material Mrs Laurent Goeman wrote to Chambers and advised that “The Respondent has failed to provide conclusive evidence and “inadvertently” omitted critical detail regarding all employees.”[2] As such the matter proceeded to hearing on 25 November 2022. Mrs Laurent Goeman gave evidence and made submissions on her own behalf and her husband Mr Goeman gave evidence. Dr Harry Tsigaras gave evidence and made submissions on Cangar’s behalf and his book-keeper Mr Vincent Comito of V.J.Comito & Co. gave evidence in support.
Preliminary Procedural Issue
Mrs Laurent Goeman named Harry Tsigaras as the Respondent in her Form F2. The Form F3 recorded the Respondent as Harry Tsigaras. During the course of complying with Directions of the Commission, Cangar filed, for the period of 1 September – 30 September 2022, a Commonwealth bank statement showing salary payments to employees in the name of Cangar Pty Ltd ITFTsigaras Family Trust, payroll advice in the name of Tsigaras Family Trust, and a payroll activity summary in the name of Tsigaras Family Trust. Mrs Laurent Goeman’s evidence included a superannuation statement to the ATO for the period 1 January 2022 to 30 September 2022 which named the employer as “The Trustee for Tsigaras Family Trust”.[3]
At the hearing, Mr Comito gave evidence that the employing entity was Cangar Pty Ltd as Trustee for Tsigaras Family Trust.
Following the hearing I forwarded the following correspondence to the parties;
Dear Parties,
RE: U2022/9715 - Mrs Jacquelyn Laurent Goeman v Harry Tsigaras
Following the hearing before Commissioner Cirkovic on 25 November 2022, the Commissioner directs Dr Tsigaras to provide a signed statement from Mr Vincent Comito confirming that:
1. Cangar Pty Ltd is the Trustee for the Tsigaras Family Trust (ABN 39 198 561 185); and
2. Cangar Pty Ltd as Trustee for the Tsigaras Family Trust (ABN 39 198 561 185) was the employer of Jacquelyn Laurent Goeman, Cathy Canestra, and Karen Jones as at 14 September 2022, by no later than close of business Wednesday 7 December 2022.
In the event that Mr Comito confirms that Mrs Laurent Goeman’s employer was Cangar Pty Ltd as Trustee for the Tsigaras Family Trust (ABN 39 198 561 185), it appears to the Commissioner that the Form F2 and F3 require formal amendment regarding the correct legal name of the Respondent.
As such, the Commissioner seeks the consent of the parties to amend the Respondent’s name in this application to Cangar Pty Ltd as Trustee for the Tsigaras Family Trust (ABN 39 198 561 185), by no later than close of business Friday 9 December 2022.
On 5 December 2022, Cangar forwarded correspondence to the Commission, attaching a signed statement from Mr Comito confirming Cangar Pty Ltd is the Trustee for the Tsigaras Family Trust (ABN 39 198 5614(sic) 985) and that as at 14 September 2022, Cangar Pty Ltd as Trustee for the Tsigaras Family Trust was the employer of Cathy Canestra, Karen Jones, and Jacquleyn(sic) Laurent Goeman. Cangar also confirmed its consent for the Respondent’s name to be amended to Cangar Pty Ltd as Trustee for the Tsigaras Family Trust (ABN 39 198 561 185).
On 7 December 2022, Cangar filed an amended statement from Mr Comito correcting typographical errors regarding Mrs Laurent Goeman’s name and the correct ABN of the Respondent in the 5 December statement. The amended statement confirmed Cangar Pty Ltd is the Trustee for the Tsigaras Family Trust (ABN 39 198 561 985) and that as at 14 September 2022, Cangar Pty Ltd as Trustee for the Tsigaras Family Trust was the employer of Cathy Canestra, Karen Jones, and Jacquelyn Laurent Goeman.
On 7 December 2022, Mrs Laurent Goeman forwarded correspondence to the Commission requesting that the Applicant and Respondent refile a correct F2 and F3 and that she would “await citing that prior to approving the name change.”
Later that day, my Chambers sent correspondence to the parties confirming that there was no requirement for the parties to file an amended F2 and F3, and that the appropriate course was for the change to the Respondent’s name to be made pursuant to s.586(a) of the Act. In that correspondence a further request was made to Mrs Laurent Goeman to confirm her consent for the Respondent’s name to be amended.
On 12 December 2022, my chambers forwarded correspondence to the parties confirming that Mrs Laurent Goeman had not yet responded to the correspondence of 7 December 2022 and advising the parties that if no response was received from Mrs Laurent Goeman by 5:00PM Tuesday 13 December 2022, the decision in this matter will be published and emailed to the parties. No response was received to that correspondence.
I have considered the views of the parties and the material before me. I have formed the view that the correct name of the employer is Cangar Pty Ltd as Trustee for the Tsigaras Family Trust (ABN 39 198 561 185). I consider it appropriate to amend the Respondent’s name pursuant to s.586 of the Act, and do so.
Background
The following background facts have not been contested between the parties.
Cangar is a company owned and run by Dr Tsigaras, who is an Orthopaedic Surgeon and who has worked in that capacity since 2002. His main rooms are at 26 Erin Street Richmond Victoria. Mrs Laurent Goeman commenced working for Dr Tsigaras on or about 17 January 2022, and spent her time predominantly working at the main rooms in Erin Street Richmond.
There is some dispute between the parties as to the alleged conduct of Mrs Laurent Goeman which led to the cessation of the employment and, further, whether she resigned her employment or was terminated for serious misconduct. As stated above, the resolution of that dispute does not form part of the considerations required by me to determine the threshold jurisdictional objection and is noted for the purpose of providing background context only.
Submissions of Cangar
At the hearing, Cangar submitted that it engaged 3 staff at the relevant time: Cathy Canestra, Karen Jones, and Jacquelyn Laurent Goeman. In support of this submission, Cangar relies on a series of documents produced into evidence referred to above at paragraph [4]. Dr Tsigaras gave evidence that as at the date of Mrs Laurent Goeman’s termination Cangar was a small business for the purposes of s.23 of the Act, employing less than 15 people.
Dr Tsigaras further gave evidence that he did not conduct other businesses, did not employ any other employees,[4] and he was “nowhere near 15 employees, never have been, never will be.”[5]
Mr Comito gave evidence that:[6]
He was a CPA accountant and registered tax agent;
He conducted a practice advising clients and providing general financial advisory services, and employed one employee;
He had conducted the bookkeeping and provided client services to Dr Tsigaras and/or Cangar for a period in excess of 20 years;
He had approximately 150 other clients;
He did not provide client services to any other business of Dr Tsigaras and / or Cangar and was not aware of the existence of any such business;
That as far as he was aware Dr Tsigaras “may have had one or 2 other entities but I don’t believe any of them do employ staff;”
He prepared the payslips and other financial records which were admitted into evidence; and
As far as he was aware, Cangar had never employed more than 15 employees.
Submissions of Mrs Laurent Goeman
In written submissions, Mrs Laurent Goeman submitted that Cangar “has failed to provide conclusive evidence and ‘inadvertently’ omitted critical detail regarding all employees.”[7] The essence of Mrs Laurent Goeman’s dissatisfaction with the material provided by the Respondent appears to relate to her concerns that the material was inadequate and should have included ATO documentation which expressly confirmed the number of employees employed. During her cross-examination of Mr Comito, it became apparent that Mrs Laurent Goeman also challenged the reliability of the material on the basis that it is capable of being inaccurately recorded as it was possible to omit certain information from payroll records. Despite this line of questioning, when asked by me whether she was asking the Commission to make a finding of dishonesty against Mr Comito she replied “No, I’m not suggesting Mr Comito is lying, no.”[8]
Mrs Laurent Goeman also submitted that Mr Comito was an employee of Cangar. While cross-examining Dr Tsigaras, Mrs Laurent Goeman noted that “the Respondent calls upon the book-keeper quite frequently,” that she was “not convinced that the book-keeper is not in some way on the books with Dr Tsigaras and his business,” and that “Mr Comito is one example of an employee.”[9]
During the hearing, Mrs Laurent Goeman also alleged that Cangar employed three additional employees, namely Ms Ellie Roberts, Mr Ivan Lesic, and Mr Jono Scott. Mrs Laurent Goeman asserted that the three individuals were “orthopaedic representatives” who “frequently, sometimes on a daily basis, come into the office”[10] and that she believed they were employed by Dr Tsigaras under his family trust.[11] Given this assertion, I recalled Dr Tsigaras to give further evidence. He stated that Mr Scott was employed by Zimmer Biomet as a senior sales representative, and that Ms Ellie Roberts and Mr Ivan Lesic were employed by Corin as a sales representative and an orthopaedic implant agent respectively.[12] Further, Dr Tsigaras stated “They’re not employees, they’re service providers from the orthopaedic industry.”[13]
Applicable Law – Minimum Employment Period
Section 382 of the Act outlines when 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.”
There is no dispute that Mrs Laurent Goeman earned less than the high income threshold. Therefore, the only issue I must determine in order to be satisfied that Mrs Laurent Goeman is protected from unfair dismissal is whether she has completed a period of employment with Cangar of at least the minimum employment period.[14]
Section 383 of the Act, set out below, prescribes that if the employee’s employer is a small business, the minimum employment period is one year:
“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.”
As stated above, the parties agree that Mrs Laurent Goeman served a continuous period of employment with the Respondent from 17 January 2022 to 14 September 2022, a period of 7 months and 28 days.[15] What is in dispute is whether the Respondent was, at the relevant time, a small business employer as defined by s.23 of the Act:
“23 Meaning of small business employer
(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.”
Is Cangar a small business employer within the definition of s.23?
At the outset, I observe that Dr Tsigaras and Mr Comito gave credible, cogent and forthright evidence as to the matters before me. I accept their evidence and am satisfied that the material before me supports a finding that Cangar employed less than 15 employees at the relevant time. I have found above that the evidence before me confirms that the proper employing entity is Cangar Pty Ltd as Trustee for the Tsigaras Family Trust. Further, I find that the totality of the evidence before me including the records referred to above at paragraph 4 indicate that Cangar employed Mrs Laurent Goeman on a fulltime basis, and 2 other part time employees, Cathy Canestra and Karen Jones at the time of termination.
I have also noted that in her material, Mrs Laurent Goeman stated in an email to Dr Tsigaras dated 14 September 2022, “I understand you are not happy regarding my resignation. With the exception of Karen, you are left with no staff once again.”[16] When asked about this comment during the hearing, she replied:
“… However, the Respondent operates a business under the name of Cangar Pty Ltd and I am aware that there are additional employees, and in my email that you talk about, my suggestion there was that in the office that’s all that is left. We know, and I knew, that, for example, the wife of the respondent is employed by the business, and in fact, I also believe that Mr Comito is. He’s a contractor, and that is an employee under Australian Fair Work law.”[17]
I reject any assertion that Mr Comito is both a contractor and employee of Cangar. On the evidence before me it is apparent that Mr Comito conducts the business of providing financial advice to clients of which Cangar is one and that there is no employer – employee relationship between them. In coming to this conclusion, I have taken into account Mr Comito’s evidence that he services approximately 150 other clients and employs his own employee, and that correspondence from Mr Comito is printed on a company letterhead of V.J.Comito & Co (ABN 28 162 891 804).
I also reject Mrs Laurent Goeman’s assertion that Ms Roberts, Mr Lesic, and Mr Scott were employed by Cangar. Rather, I accept Dr Tsigaras’ evidence that Mr Scott was employed by Zimmer Biomet and that Ms Roberts and Mr Lesic were employed by Corin, that they acted as service providers for the orthopaedic industry, and that the three individuals were not employees of Cangar.
Given the above, I find that at the time of termination, Cangar employed less than 15 employees. As such, Cangar was a small business employer for the purposes of s.23 of the Act and Mrs Laurent Goeman’s required minimum employment period to be protected from unfair dismissal was 12 months under s.383 of the Act.
Has Mrs Laurent Goeman completed a period of employment with Cangar of at least the minimum employment period?
As stated above, there is no contest that Mrs Laurent Goeman commenced her employment on 17 January 2022 and that her termination took effect on 14 September 2022. Consequently, I accept Cangar’s submission that Mrs Laurent Goeman has not completed the minimum employment period. As such, I am satisfied that she is not a person protected from unfair dismissal. Mrs Laurent Goeman’s application for unfair dismissal remedy must therefore be dismissed and an Order[18] to this effect will be issued with this decision.
COMMISSIONER
Appearances:
Mrs Laurent Goeman on her own behalf
Dr Tsigaras for the Respondent
Hearing details:
Melbourne (by Microsoft Teams Video)
10:00AM AEDT, Friday, 25 November 2022.
<PR748880>
[1] Form F3 question 1.7
[2] Email from Mrs Laurent Goeman to Chambers dated 24/11/2022 11:48AM.
[3] Exhibit 16 of Exhibit A1, Email from Jacquelyn Laurent Goeman to Harry Tsigaras dated 14 September 2022.
[4] Transcript PN120 – PN126.
[5] Transcript PN196.
[6] Transcript PN245 – PN279.
[7] Email from Mrs Laurent Goeman to Chambers dated 24 November 2022.
[8] Transcript PN350 – PN351.
[9] Transcript PN146 – PN156.
[10] Transcript PN409 – PN424.
[11] Transcript PN431.
[12] Transcript PN501.
[13] Transcript PN508.
[14] Fair Work Act 2009 (Cth) s.382(a).
[15] See FW Act, ss.384 and 22.
[16] Exhibit 16 to Exhibit A1 – Email from Jacquelyn Laurent Goeman to Harry Tsigaras dated 14 September 2022.
[17] Transcript PN40.
[18] PR748881.
Printed by authority of the Commonwealth Government Printer
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