Jane Whitehead v Anytime Eltham Pty Ltd T/A Anytime Fitness Eltham

[2017] FWC 1883

[2017] FWC 1883

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009 s.394—Unfair dismissal

Jane Whitehead
v
Anytime Eltham Pty Ltd T/A Anytime Fitness Eltham
(U2017/942)

COMMISSIONER BISSETT MELBOURNE, 3 APRIL 2017

Section586 application to correct legal entity of respondent.

[1] Ms Jane Whitehead has made an application to the Fair Work Commission (Commission) seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Ms Whitehead made her application on 30 January 2017.

[2] Ms Whitehead named her employer and provided contact details as follows:

Company name: Anytime eltham pty ltd Trading as

Anytime Fitness Eltham

Contact: Mr Steve Galea

Franchise owner
Phone: XXXXX

[3] Ms Whitehead says that she contacted Mr Galea in January 2017 with respect to her parental leave payments (she was on maternity leave at the time) and that he replied she was not employed by the business “anymore”.

[4] Mr Galea says he is not currently Ms Whitehead’s employer and has never been her employer. In correspondence to the Commission on 9 February 2017 Mr Galea said:

I refer to your letter of 1 February 2017 noting an application by Jane Whitehead against Anytime Eltham Pty Ltd trading as Anytime Fitness Eltham.

Please be advised that S.J.G. Investments (Vic) Pty Ltd purchased the business from Anytime Eltham Pty Ltd (now known as “Flood Street Investments Pty Ltd”) with settlement taking place on 1 December 2016.

My company is not responsible for any matters pertaining to her employment with Flood Street Investments Pty Ltd.

Yours faithfully

Steve Galea
Director

[5] A Mention Hearing was held in relation to determining the name of the employer for the file. At the Mention Ms Whitehead confirmed that her employment had not been terminated by Anytime Eltham Pty Ltd, that she had not been offered employment by Mr Galea and, until contacting him, had received no correspondence from him or S.J.G. Investments (Vic) Pty Ltd. Ms Whitehead assumed that she was employed by S.J.G. Investments (Vic) Pty Ltd as she had been employed by Anytime Eltham Pty Ltd and that Kimberley Ball, the owner of Anytime Eltham Pty Ltd, had told her the business had been sold with all the liabilities attached to it including the employees. Further, Ms Whitehead assumed she was employed, and dismissed, by Mr Galea because he said she did not work for the company anymore in an email when she contacted him about her parental leave payments.

[6] Mr Galea said that Ms Whitehead was not listed as an employee at the time he undertook due diligence with respect to the purchase of the business and he had not offered her employment. Ms Whitehead was not a transferring employee as defined in the FW Act. Mr Galea says he had sent Ms Whitehead an email explaining that she was not employed by his company in January 2017.

[7] Mr Galea says that there would be no utility in changing the name of the employer on the application to S.J.G. Investments (Vic) Pty Ltd because it had never employed Ms Whitehead and, in such circumstances, it would not be in accordance with the intent of the FW Act to list Mr Galea and/or S.J.G. Investments (Vic) Pty Ltd as the employer.

Consideration

[8] At the conclusion of the Mention I requested the parties provide to me a copy of the email Mr Galea was said to have sent to Ms Whitehead on 13 January 2017. That email reads:

From: Steve Galea

Date: Fri, Jan 13, 2017 at 12:10 PM

Subject: Re: Business details for Centrelink

To: Jane Whitehead

Hi Jane, unfortunately you are not employed under my new entity details and that any arrangements under the old entity do not sit with my company etc. You may need to speak with Kim to discuss your arrangements...

Sorry I can’t be of more help...

Regards
Steve

Steve Galea
[ellipses in original]

[9] I am satisfied that the email is not an indication by Mr Galea that he was terminating Ms Whitehead’s employment. I accept that it is an indication from Mr Galea that Ms Whitehead was never employed by S.J.G. Investments (Vic) Pty Ltd (the new entity).

[10] Whilst I appreciate that Ms Whitehead sought to clarify her employment status with Ms Ball, Ms Ball, in her correspondence does not appear to have been forthcoming with Ms Whitehead and, as Ms Whitehead agreed, has never officially written to Ms Whitehead of her status.

The correct name of the employer

[11] I am satisfied that Ms Whitehead has not been employed by S.J.G. Investments (Vic) Pty Ltd. For this reason her employment could not be terminated by S.J.G. Investments (Vic) Pty Ltd. No utility would be served by listing S.J.G. Investments (Vic) Pty Ltd as Ms Whitehead’s employer.

[12] I am satisfied that Ms Whitehead was employed by Anytime Eltham Pty Ltd. Whilst Ms Whitehead has not been formally advised that her employment has been terminated by Anytime Eltham Pty Ltd, I do not take that to mean her employment has not been terminated although this may be a matter for separate consideration.

[13] I note the advice of Mr Galea that the business is now known as “Flood Investments Pty Ltd” but Ms Whitehead put nothing on this to me.

[14] Section 586 of the FW Act provides the Commission with the power to amend an application to the Commission on terms the Commission considers appropriate. It is accepted that this can include an amendment of an application to correct the name of the Respondent to such an application. 1 I am satisfied in this case, and so order2, that the employer name should be amended to Anytime Eltham Pty Ltd. Ms Whitehead should provide the Commission with the name and contact details for Anytime Eltham Pty Ltd to enable the Commission to serve Ms Whitehead’s application on her employer.

COMMISSIONER

Appearances:

J. Whitehead on her own behalf.

A. Bell for S.J.G. Investments (Vic) Pty Ltd.

Hearing details:

2017.

Melbourne:

April 3.

 1   Djula v Centurion Transport Company Pty Ltd, [2015] FWCFB 2371.

 2   PR591560.

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