Joyce Matta v Richard Matta T/A Chemist Depot Grand Market Bankstown
[2011] FWA 8285
•16 DECEMBER 2011
[2011] FWA 8285 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Joyce Matta
v
Richard Matta T/A Chemist Depot Grand Market Bankstown
(U2011/9815)
COMMISSIONER HARRISON | SYDNEY, 16 DECEMBER 2011 |
Termination of employment - unfair dismissal - jurisdiction - whether applicant is an employee of named respondent.
[1] This is an application by Ms Joyce Matta (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment by Richard Matta, trading as Chemist Depot Grand Market Bankstown (Chemist Depot) on 1 July 2011.
[2] Taylor Woodings, appointed receivers and managers for Chemist Depot, lodged a jurisdictional objection to the application contending that Chemist Depot was not the Applicant’s employer, therefore the Tribunal does not have jurisdiction to deal with the application.
[3] Subsection 396(b) of the Act states that before dealing with the merits of an application, the Tribunal must determine if the Applicant is protected from unfair dismissal.
[4] Section 382 of the Act reads in part as follows:
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee (my emphasis) who has completed a period of employment with his or her employer of at least the minimum employment period.
Evidence
[5] Mr Jon Howarth is a consultant to Taylor Woodings whose duties include managing the trading and operations of Chemist Depot since it and two other pharmacies were placed in receivership on 1 July 2011. All three pharmacies operate from the same retail complex in Bankstown.
[6] It was Mr Howarth’s evidence that the receivers dispute the Applicant’s declaration that her employer was Chemist Depot having regard to:
- the Certificate of Registration of Business Name for Chemist Depot Grand Market Bankstown dated 23 March 2010;
- an extract from ASIC’s website also relating to the business name Chemist Depot Grand Market Bankstown; and
- a copy of a letter from Chemist Depot Grand Market to Medicare Australia in relation to that business name dated 15 April 2010.
[7] It was said the real employer was RX Town Services Trust of which Richard Matta is a director. Annexed to the witness statement of Mr Howarth was an extract of an ASIC company search of RX Town Services Pty Ltd listing Richard and Christina Matta as current company officers.
[8] Mr Howarth also provided copies of payroll records to RX Town Services Trust which recorded wages paid to the Applicant. A copy of correspondence from Symbion Pharmacy Services, confirming the Applicant as an employee was also annexed.
[9] The Applicant gave evidence and provided a witness statement. Her evidence in chief was to refute that her employer was RX Town Services Pty Ltd as trustee for the RX Town Services Trust.
[10] Ms Matta stated:
“At no stage at the commencement of my employment or during my employment with the respondent did anyone tell me that I was employed by RX Trust (sic) Services.
RX Trust Services had no part in my employment contract or contractual arrangements and were not represented to me as forming part of my employment relationship.
I received no direction to do any work for RX Town Services.
I maintain that I was employed by the respondent.” 1
[11] Annexed to the Applicant’s statement is a copy of the relevant employment contract dated 24 August 2009 on the letterhead of Chemist Depot. The acceptance clause states: “I hereby accept employment with Chemist Depot Bankstown on the terms and conditions set out in this contract.”
[12] It was the Applicant’s evidence that she first became aware of the existence of RX Town Services Trust after she lodged her application for relief and the subsequent jurisdictional objection.
[13] She did not recall opening any pay slips as she relied on her online banking facility to check that her pay had been deposited. “Had I reviewed my pay slips and noticed payment from ‘RX Fund’, I would have had no idea what that referred to. As an employee, I would not question where my pay was coming from or who was paying me.” 2
[14] In cross-examination the Applicant was shown a bundle of her payslips. She agreed they related to wages paid to her and that no reference was made to Chemist Depot. The Applicant agreed each payslip referred to RX Town Service Trust.
[15] The Applicant was further shown copies of the group payroll for 23 employees for the period ending 25 June 2011 and a copy of her tax return for 2010, both provided in response to an Order Requiring Production. The Applicant agreed that neither document referred to the employer as being Chemist Depot.
[16] In further written submissions filed after the hearing, solicitors for the Applicant stated the existence of RX Town Services Trust and Chemist Depot’s payroll reports was brought into existence for “other purposes”, being taxation benefits and does not reflect the reality of the parties’ relationship.
[17] Both parties referred approvingly to the decision of Edmonds J, in the matter of Gothard and AFG Pty Limited (Receivers and Managers appointed (in liquidation)) v Davey and others (Gothard) 3. In the decision Edmonds J said:
“The outcome in cases which have been concerned with identifying an employer of a person or a group of persons from two or more possibilities, whether from within the same group of companies or otherwise, has turned upon their own facts and, in consequence, the case law in this area is of limited assistance. Nevertheless, it is possible to discern certain general principles that the courts have applied in the identification process. The courts have adopted the position that in undertaking this exercise, they are entitled to take a wide view of the putative relationship, beyond the terms of the contractual documentation, to examine how the parties conducted themselves in practice and whether, where there is contractual documentation, the reality of the situation accords with the terms of that documentation or whether it points to another entity being the employer.” 4
[18] Further, in the decision, Edmonds J provides a useful summary of the authorities which could be said to be relevant in this matter:
“In Re of C&T Grinter Transport Services Pty Ltd (in liq) & Grinter Transport Pty Ltd (in liq) (controller appointed) [2004] FCA 1148, Finn J at [20] said:
[20] The principles to be applied in the identification of the employer of an employee where there are two or more possible employers, are reasonably well settled. For present purposes I would note the following:
a. A contract of service cannot be transferred by one employer to another or novated as between them without the employee’s consent: Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014; Re Coogi Nominees Pty Ltd (administrators appointed); McCluskey v Karagiosis (2002) 120 IR 147. Questions of estoppel apart: Smith v Blandford Gee Cementation Co Ltd [1970] 3 All ER 154; the employee’s consent must be a real one whether express or implied and is “not to be raised by operation of law”: Denham v Midland Employers Mutual Assurance Ltd [1955] 2 QB 437 at 443.
b. The totality of the circumstances surrounding the relationships of the various parties including conduct subsequent to the creation of an alleged employment relationship is relevant to the assessment to be made: Romero v Auty (2001) 19 AGLC 206 at [10] and [42]-[44].
c. Documentation created by one or more of the parties describing or evidencing an apparent employment relationship will be relevant to, but not necessarily determinative of, the true character of that relationship: Pitcher v Langford (1991) 23 NSWLR 142; Marrs Fabrics Pty Ltd & Nathan Wholesale Fabrics Pty Ltd v Whipps (1991) 33 AILR 167. In determining the identity of a disputed employer, the Court is entitled to consider “the reality of purported contractual arrangements”: Dalgety Farmers Ltd t/a Grazcos v Bruce, NSWCA, 3 August 1995. The documentation may have been brought into existence for other purposes, for example, tax minimisation or the reduction of insurance premiums, without reflecting the reality of the parties relationship: ibid; Pitcher v Langford, at 149; Sharment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449 at 454.
d. Conversions and conduct at the time of the alleged engagement of the employee is of considerable significance: Romero, at [9]. The beliefs of the employees as to the identity of their employer is admissible and is entitled to weight: Pitcher v Langford.
e. In cases of the engagement of new employees to work in a business in which a number of separate corporate entities participate otherwise than as partners:
...it was open to those controlling the business to select which company should be the employer provided that the selection was consistent with the financial and administrative organisation of the business and was not otherwise a sham.” 5
Consideration
[19] The general principles the courts have applied in identifying the real employer, when considered in this matter, go beyond an identity listed on pay slips or tax return documents.
[20] The evidence in this matter is that :
- RX Town Services Trust paid wages to the Applicant;
- The contract of employment is between the Applicant and Chemist Depot;
- At no time was the Applicant asked to transfer her contract to RX Town Services Trust;
- The Applicant was required to comply with a dress code and performance standards by signed agreement between herself and Chemist Depot.
[21] The practical realities of the employment relationship were that Chemist Depot had control and direction over the Applicant.
[22] There is no evidence that the Applicant, RX Town Services Trust and other pharmacies operating in the same retail centre were engaged in any labour hire arrangements.
[23] The principles referred to above in Gothard, when applied to the facts and circumstances of this matter, satisfies me that the employer of the Applicant was Richard Matta trading as Chemist Depot Grand Market Bankstown.
[24] Accordingly, the jurisdictional objection is dismissed and the application for relief will be referred for conciliation.
COMMISSIONER
Appearances:
S Ingui, Colin Biggers & Paisley for Ms Joyce Matta
B Maynard, Henry Davis York Lawyers for the Respondent
Hearing details:
2011.
Sydney:
October 14.
Final written submissions:
26 October 2011.
1 Exhibit I1, PN12-15
2 Ibid, PN37(b)
3 [2010] FCA 1163
4 Ibid, PN52.
5 Ibid, PN54.
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