Lesley Tasker v Starbay Holdings Pty Ltd T/A Turbotech

[2014] FWC 8072

[2014] FWC 8072

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lesley Tasker
v
Starbay Holdings Pty Ltd T/A Turbotech
(U2014/11655)

COMMISSIONER WILLIAMS PERTH, 17 NOVEMBER 2014

Termination of employment - small business - minimum employment period.

[1] Mrs Lesley Tasker (Mrs Tasker or the applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is Starbay Holdings Pty Ltd T/A Turbotech (the respondent).

[2] The respondent to the application has lodged an objection on the basis that Mrs Tasker has not completed the required minimum employment period.

[3] Sections 382 and 383 of the Act provide that an employee is only eligible to make an application for an unfair dismissal remedy if they have completed the minimum employment period of,

• one year—where the employer employs fewer than 15 employees (a small business employer)



• six months—where the employer employs 15 or more employees.

[4] It is common ground that at the time of Mrs Tasker’s dismissal her period of employment was less than one year.

[5] The respondent asserts it is a small business however Mrs Tasker disputes that this is the case.

[6] A hearing was conducted for the Commission to determine whether or not the employer at the time of Mrs Tasker’s dismissal employed fewer than 15 employees and so was a small business.

[7] At the hearing of this matter evidence was given by the respondent’s Chief Executive Officer, Mr Mahmood Hussein (Mr Hussein) and by Mrs Tasker.

[8] The central difference between the parties is firstly whether there is an associated entity that has employees that should be included in the employee headcount and secondly whether two Directors of the respondent, Mr John Hallam (Mr Hallam) and Mrs Jo-Ellen Hallam (Mrs Hallam) were employees of the respondent.

Factual findings

[9] Having considered the evidence of both witnesses I make the following findings of fact.

[10] As at the date of Mrs Tasker’s dismissal the company employed at least 13 employees including Mrs Tasker but not include the two Directors of the company, Mr and Mrs Hallam.

[11] Mr and Mrs Hallam were paid amounts from time to time through the respondent’s payroll system.

[12] Mr Hallam would direct Mrs Tasker on occasions to remove him and his wife from the payroll or to reinstate them to the payroll.

[13] On 28 May 2014 Mr Hallam sent an email to Mrs Tasker telling her to:

“Drop jo and i off the payroll for ma while please.” (sic)

[14] Notwithstanding this instruction Mrs Tasker did not from 28 May 2014 remove Mr and Mrs Hallam from the payroll.

[15] Mrs Tasker queried the respondent’s external accountant Mr Jamieson whether the payroll system was the appropriate vehicle to make payments to Mr and Mrs Hallam.

[16] Mr and Mrs Hallam would attend the premises of the respondent from time to time.

[17] Mrs Tasker prepared a statement for the respondent’s workers compensation insurance which included Mr and Mrs Hallam in the headcount of employees.

[18] Mr Hussein’s evidence was that Diesel Performance Modules was nothing more than a brand name or an agent for the respondent and had no employees, including at the time of Mrs Tasker’s dismissal.

[19] Mrs Tasker has no specific knowledge as to whether Diesel Performance Modules had any employees at the time of her dismissal.

[20] Mr Hussein did not view Mr and Mrs Hallam as employees of the respondent.

Consideration

[21] With respect to the question of whether there were associated entities of the respondent whose employees are to be included in the headcount of employees for the purposes of determining whether the respondent was a small business there is not sufficient evidence before the Commission to determine whether Diesel Performance Modules was an associated entity of the respondent.

[22] However it is not necessary to determine this question because what is clear from the evidence is that Diesel Performance Modules did not have any employees at the time of Mrs Tasker's dismissal. Consequently if indeed Diesel Performance Modules was an associated entity of the respondent this does not affect the headcount relevant to the determination of whether the respondent was a small business.

[23] Turning to consider whether two Directors of the respondent, Mr and Mrs Hallam, were also employees of the respondent there is some evidence that points to that conclusion.

[24] The first is that at times the respondent paid monies to Mr and Mrs Hallam through the respondent’s payroll system. The second is that Mr and Mrs Hallam did at times attend the premises of the respondent. The third and final relevant piece of evidence is that Mr and Mrs Hallam were included on the employee headcount for the purposes of the respondent’s workers compensation insurance.

[25] Being a director of a company does not of itself make that person an employee of the company. The question for the Commission to determine is whether the relationships in this case between Mr and Mrs Hallam and the respondent were also that of employer and employee.

[26] Firstly I note that the evidence that the Commission has before it from the witnesses has rarely distinguished between Mr Hallam and Mrs Hallam. For this matter to be determined in favour of Mrs Tasker the Commission would need to conclude that both Mr Hallam and separately Mrs Hallam were employees of the respondent.

[27] There is no evidence that either Mr or Mrs Hallam had a contract of employment with the respondent.

[28] There is no evidence of other arrangements being in place which are indicative of an employment relationship such as accrual of leave entitlements.

[29] There is no evidence as to what Mr or Mrs Hallam did when attending the respondent’s premises. Significantly there is no evidence to conclude that what they did at the respondent’s premises was work or duties beyond those they could be expected to undertake as Directors of the respondent.

[30] The fact that the payments through the respondent’s payroll system to Mr Hallam and Mrs Hallam would cease and recommence apparently at Mr Hallam’s whim is not consistent with an employment relationship. Further the fact that Mrs Tasker herself queried whether it was appropriate that Mr Hallam and Mrs Hallam be paid through the payroll system is more indicative of a conclusion that they were not employees than that they were employees.

[31] The reason the payments were made to Mr Hallam and Mrs Hallam is not clear. Mrs Tasker in her evidence and submissions suggested that payments may have been made through the payroll system because Mr Hallam and Mrs Hallam could not very well be paid bonuses or dividends because the business was not profitable. There is no evidence that these payments were made to Mr Hallam and Mrs Hallam for work that they had done under a contract of employment with the respondent.

[32] On the limited evidence available my conclusion is that Mr Hallam was not an employee of the respondent and Mrs Hallam was not an employee of the respondent.

[33] Accordingly I find that at the time of Mrs Tasker’s dismissal the respondent employed fewer than 15 employees and so was a small business as defined in the Act.

Conclusion

[34] I uphold the objection by the respondent that at the time of her dismissal Mrs Tasker had not completed the applicable minimum employment period of one year which is a prerequisite under the legislation for her to be able to make an application for an unfair dismissal remedy.

[35] Consequently I will now issue an order that this application is dismissed. There will be no further proceedings and Mrs Tasker’s file will be close.

COMMISSIONER

Appearances:

L Tasker on her own behalf.

R Gifford of the Motor Trades Association of Western Australia for the respondent.

Hearing details:

2014.

Perth:

November 12.

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