Joel Charles v Fresh Local Pty Ltd T/A Capi

[2020] FWC 3485

[2020] FWC 3485

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joel Charles
v
Fresh Local Pty Ltd T/A Capi
(U2020/3842)

COMMISSIONER WILLIAMS PERTH, 3 JULY 2020

Application for an unfair dismissal remedy.

[1] This matter involves an application made by Mr Joel Charles (Mr Charles or the Applicant) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The respondent is Fresh Local Pty Ltd T/A Capi (the Respondent).

[2] The application was the subject of a conference with a Fair Work Commission conciliator however the matter was not resolved and so has been referred for arbitration.

[3] The Respondent has moved for the dismissal of this application on two grounds, firstly that the Respondent named was not the employer and secondly that the application for unfair dismissal remedy was not made within 21 days after the dismissal took effect (see s.394(2)(a)).

[4] Consequently, the parties were directed to provide any witness statements, submissions or supporting documentation for consideration by the Commission and were advised that the Commission intended to determine the matter on the papers.

The application

[5] The application filed says Mr Charles lives in Yanchep, Western Australia.

[6] Mr Charles lists the Respondent’s address as being Windsor, Victoria.

[7] The application filed by Mr Charles says he began working for the Respondent in February 2014 and he was notified of his dismissal on 23 March 2020, and it took effect the same day.

[8] The remedy sought is for his redundancy to be paid.

[9] The application says the reason for the dismissal given by the employer was that he was being made redundant due to COVID-19.

[10] In answer to the question “Why was the dismissal unfair?” the answer given was:

“Dismissal was unfair due to Capi not willing to Pay my Redundancy.” (Sic)

[11] Both parties were self-represented.

The evidence

[12] In support of his application the Applicant has provided a copy of an email sent by Ms Kate Solly on 24 March 2020, the subject of which is “Capi Covid-19 business and team update.” The recipient has been redacted.

[13] Th letter says that the majority of the Capi team was made redundant yesterday.

[14] The letter acknowledges and thanks four named individuals including Mr Charles and goes on to say Capi hopes to re-employ them after COVID-19.

[15] The letter is signed Kate Solly, General Manager, Capi.

[16] Mr Charles also provides a screenshot of what appears to be a transaction from a banking phone application. It shows an amount of $1,122.00 was paid on 4 March 2020 and is referred to as “Capi wages”.

[17] In support of its objections the Respondent has provided a witness statement from Ms Kate Solly (Ms Solly) the General Manager of Fresh Local Pty Ltd trading as Capi with seven supporting documents.

[18] Ms Solly’s address is Windsor, Victoria.

[19] The evidence of Ms Solly relevantly is that in May 2019, the Applicant approached her explaining he intended to relocate back to Perth, for family reasons. At the time she was his direct Manager.

[20] She responded to him saying that unfortunately because he was the National Distribution Manager, they would not be able to relocate his role to Western Australia. At the time he was based in the head office in Windsor, Victoria. Her evidence was that most of the Respondent’s customers and revenue is generated from the East Coast of Australia.

[21] She told Mr Charles at the time that she would support his decision to move and do her best to help him secure a role in Perth through her networks.

[22] Around 30 May 2019, she contacted one of their distributors in Victoria called Paramount Liquor who also operated an alcohol distribution company known as Craft Revolution.

[23] Her statement says that Craft Revolution operates in all states of Australia but at the time did not have a sales representative in Perth. She called Craft Revolution and asked them if they would be interested in employing Mr Charles.

[24] Around mid-June 2019 she met with two directors of Craft Revolution to discuss this. They told her they would be willing to employee Mr Charles to work in Perth. A condition of this employment would be that Capi would agree to fund a portion of his employment costs in return from an increased commitment by Craft Revolution to dedicate resources to help improve Capi’s distribution sales in Western Australia. It was agreed that Mr Charles would be an employee of Craft Revolution and not of Capi.

[25] Ms Solly’s evidence was that this was documented and agreed to by both parties in a Funding Agreement. A copy of the Funding Agreement made on 14 January 2020 was provided to the Commission. The recitals include that Craft Revolution have agreed to employ a full-time Sales Representative, Joel Charles (Rep) who will be focused on growing the Capi sales in Western Australia. The Funding Agreement says that as part of the collaborative initiative Capi has agreed to provide payment to Craft Revolution to partially fund the employment costs of the sales representative (i.e. Mr Charles) for a 24-month period.

[26] The Funding Agreement expressly states that Mr Charles shall all times remain an employee of Craft Revolution. It continues on that nothing in the Funding Agreement shall be taken to establish an employment relationship between Capi and the Rep, that is Mr Charles.

[27] The Funding Agreement has been signed by representatives on behalf of Capi and separately on behalf of the Craft Revolution.

[28] An email from Mr Charles dated 10 December 2019 to Ms Solly and another Capi employee the subject of which “Capi last day checklist” includes the statement that he does not “… finish up with Capi until 16^th of Jan.”

[29] In January 2020, Ms Solly says Craft Revolution informed her they had offered the Applicant a role and asked him to commence transitioning to that role prior to relocating to Perth. She relayed this information to the Applicant, and he told her that he had indicated to Craft Revolution that he was interested to take up their offer. From there it was mutually agreed with the Applicant and Ms Solly, suitable dates to support this transition to Craft Revolution.

[30] Ms Solly says that from 13 January 2020, the Applicant commenced working for Craft Revolution and acted as Capi’s Account Manager, managing existing customers and winning new business in Perth. In this role the Applicant also sold other brands of products represented and/or distributed by Craft Revolution and did not exclusively represent Capi

[31] The Respondent provided to the Commission a letter dated 3 April 2020 from Campbell Speers, the National Sales and Marketing Director of Craft Revolution regarding the employment of Mr Charles which reads as follows:

“Joel Charles commenced employment with Craft Revolution on the 13th of Jan 2020. Joel is employed as a Business Development Manager.”

[32] Ms Solly says the Applicant’s last pay period with Capi was the fortnight ending 19 January 2020 and all annual leave entitlements were then paid out and he was terminated from Capi’s payroll system. No payments have been made to the Applicant by Capi since then. A detailed payslip with the payment date of 20 January 2020, was provided to the Commission which reflects this.

[33] Ms Solly says that around 23 March 2020 she contacted Craft Revolution to inform them that due to the COVID-19 situation sales had been severely impacted and Capi would like to terminate the Funding Agreement due to a lack of sales opportunities in Western Australia. Craft Revolution she says accepted their position and agreed to mutually terminate the Funding Agreement. Her statement was that she did not make any other directive or recommendation to Craft Revolution regarding how they should deal with Mr Charles employment.

[34] Ms Solly’s evidence is that Craft Revolution suggested that given her prior working relationship with the Applicant she make a courtesy call to Mr Charles which she did. She rang him and explained to him that Capi was going to terminate its Funding Agreement with Craft Revolution but at no point in the conversation did she tell him that his role was being made redundant.

[35] The Respondent has provided to the Commission a copy of a letter dated 31 May 2020 from Mr Campbell Speers, Craft Revolution, to Ms Solly, which states that Craft Revolution accept Capi’s offer to terminate the existing Funding Agreement as at 31 March 2020.

Submissions

The Applicant’s submission

[36] The Applicant’s email to the Commission says the letter from Ms Solly sent to distributors and customers shows he had been made redundant on 23 March 2020 and proves his application was made within the 21 days.

[37] He says what he refers to as a payslip dated 4 March 2020 refutes the Respondent’s statements that all monies were paid out in January 2020. He says this proves that he was still an employee of Capi.

The Respondent’s submission

[38] The Respondent submits that they were not Mr Charles employer at the time he asserts his position was made redundant on 23 March 2020.

[39] The Respondent submits that as of 17 January 2020, there was no longer any employment relationship between Capi and Mr Charles. Once Mr Charles commenced employment with Craft Revolution the only relationship between Mr Charles and Capi was that he acted as their key Account Manager in Western Australia on behalf of Craft Revolution.

[40] After Capi and Craft Revolution agreed mutually to terminate the Funding Agreement the consequences for Mr Charles employment was a matter for Craft Revolution as his employer.

[41] Fresh Local Pty Ltd trading as Capi was not his employer on 23 March 2020.

Consideration

[42] The weight of evidence before the Commission is heavily in favour of the Respondent’s objection that they were not Mr Charles’ employer after January 2020 and most certainly he was not employed by them on 23 March 2020, when he says he was made redundant.

[43] On the balance of probabilities, I find that the Respondent Fresh Local Pty Ltd trading as Capi was not the employer of the Applicant at the date he says he was dismissed, 23 March 2020. In fact, the employment relationship between the Applicant and the Respondent had ended in January 2020.

[44] Consequently, I find that the Respondent was not Mr Charles employer and so there is no jurisdiction to pursue this application against the Respondent. There is no necessity to consider the out of time objection.

[45] Consequently, the application will be dismissed and an Order [PR720697] to that effect issued in conjunction with this decision.

Final written submissions:

Applicant, 27 May 2020.
Respondent, 4 June 2020.

Printed by authority of the Commonwealth Government Printer

<PR720695>