Matthew Keyes v Gnadbro Pastoral

[2019] FWC 3675

[2019] FWC 3675

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Keyes
v
Gnadbro Pastoral
(U2019/1227)

DEPUTY PRESIDENT DEAN SYDNEY, 28 MAY 2019

Application for an unfair dismissal remedy – jurisdictional objections - incorrect respondent named - minimum employment not met – application made out of time.

[1] On 6 February 2019 Mr Matthew Keyes filed an application pursuant to s.394 of the Fair Work Act 2009 for an unfair dismissal remedy with respect to the termination of his employment by Ag Forestry Solutions Pty Ltd (AFS).

[2] AFS has raised three jurisdictional objections to the application, namely that Mr Keyes incorrectly named the respondent employer; he had not served the minimum employment period; and the application was filed outside the 21 day time period prescribed by the Act.

[3] At the hearing on 2 May 2019, Mr Keyes appeared on his own behalf and Ms J Carroll appeared with permission on behalf of AFS. Oral evidence was given by Mr Keyes and AFS’s Director, Mr Douglas Bruckner.

Background

[4] The relevant background to this matter is generally uncontested. Mr Keyes commenced employment with Ollywood Pty Ltd (Ollywood) in November 2017 to perform native forestry works on a property owned by Mr Douglas Bruckner. Mr Keyes was initially employed on a casual basis and became a full time employee on 22 May 2018. Ollywood ceased its operation in September 2018 and Mr Keyes was subsequently employed by AFS on or about 10 September 2018. He was dismissed on 7 January 2019 and his application was made 9 days beyond the statutory time limit.

Name of Respondent

[5] It is clear from the payslips issued to Mr Keyes that he was employed by AFS at the date his employment ended.

[6] However, Mr Keys named the respondent in his application as John Edward Bruckner & Zandra Lynn Bruckner. The ABN provided by Mr Keyes relates to an entity known as The Trustee for Lyndoch Trust which traded under the business name of Gnadbro Pastoral Company. Mr John Bruckner and Mrs Zandra Bruckner are the parents of Mr D Bruckner who is the sole director of AFS.

[7] Mr Keyes explained that he was confused as to the correct name of his employer because the workers compensation policy under which he had an accepted workers compensation claim was in the name of John and Zandra Bruckner. I accept Mr Keyes’ explanation as to his confusion about the entity that employed him. I am satisfied in the circumstances that I should exercise my discretion pursuant to s.586 of the Act to amend the name of the respondent to Ag Forestry Solutions Pty Ltd, and that there is no evidence of any prejudice caused to AFS in doing so.

[8] I now turn to deal with the next jurisdictional objection.

Minimum Employment Period

[9] Section 382 of the Act provides that a person is protected from unfair dismissal only if the required minimum employment period has been completed.

[10] Section 383 of the Act defines minimum employment period:

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.

[11] There is no dispute that AFS is a small business and accordingly the minimum employment period is twelve months. If Mr Keyes has not completed the minimum employment period, he is not a person protected from unfair dismissal pursuant to s.382(a) of the Act.

[12] Mr Keyes said that throughout his employment with Ollywood and AFS he performed the same work at the same location.

[13] The issue required to be determined is whether Mr Keyes’ period of service with Ollywood counts towards the period of his employment with AFS for the purpose of satisfying the minimum employment period. If Mr Keyes’s service with Ollywood does not count towards the minimum employment period, then his application must be dismissed.

[14] There are two circumstances where the Act allows service with the old employer and the new employer be deemed as continuous service for the purpose of the minimum employment period.

[15] First, service will be continuous if the old employer and the new employer are associated entities as defined by s.50AAA of the Corporations Act 2001, and the employee becomes employed by the new employer within three months of ceasing employment with the old employer.

[16] An entity may be an associated entity of another entity (the principal) in the following circumstances:

•  the associate and principal are related bodies corporate;

•  the principal controls the associate;

•  the associate controls the principal and the operations, resources or affairs of the principal are material to the associate;

•  the associate has a qualifying investment in the principal, has significant influence over the principal and the interest is material to the associate;

•  the principal has a qualifying investment in the associate, has significant influence over the principal and the interest is material to the principal; or

•  a third entity controls both the principal and the associate and the operations, resources or affairs of the principal and the associate are both material to the third entity.

[17] For the purposes of whether entities are associated, one entity controls another when the first entity can make decisions that determine financial and operating policies of the second entity.

[18] On the evidence before me, I am satisfied and find that Ollywood and AFS are not associated entities. In reaching this finding, I rely on the company extracts from ASIC for Ollywood and AFS provided by Mr Bruckner, which indicate that other than being a 5% shareholder of Ollywood, he is neither the Director nor the Secretary of that entity. There was otherwise no evidence that would support a finding that either entity had control over the other, or that one entity had significant influence over the other.

[19] Second, service will be continuous if there is a transfer of business from the old employer to the new employer within the meaning of s.311 of the Act, and the transferring employee has not been informed in writing that the service with the old employer would not be recognised.

[20] Section 311 relevantly provides:

311 When does a transfer of business occur

Meanings of transfer of business, old employer, new employer and transferring work

(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:

(a) the employment of an employee of the old employer has terminated;

(b) within 3 months after the termination, the employee becomes employed by the new employer;

(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;

(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).

Meaning of transferring employee

(2) An employee in relation to whom the requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring employee in relation to the transfer of business.

Transfer of assets from old employer to new employer

(3) There is a connection between the old employer and the new employer if, in accordance with an arrangement between:

(a) the old employer or an associated entity of the old employer; and

(b) the new employer or an associated entity of the new employer; the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):

(c) that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and

(d) that relate to, or are used in connection with, the transferring work.

Old employer outsources work to new employer

(4) There is a connection between the old employer and the new employer if the transferring work is performed by one or more transferring employees, as employees of the new employer, because the old employer, or an associated entity of the old employer, has outsourced the transferring work to the new employer or an associated entity of the new employer.

New employer ceases to outsource work to old employer

(5) There is a connection between the old employer and the new employer if:

(a) the transferring work had been performed by one or more transferring employees, as employees of the old employer, because the new employer, or an associated entity of the new employer, had outsourced the transferring work to the old employer or an associated entity of the old employer; and

(b) the transferring work is performed by those transferring employees, as employees of the new employer, because the new employer, or the associated entity of the new employer, has ceased to outsource the work to the old employer or the associated entity of the old employer.

New employer is associated entity of old employer

(6) ….”

[21] There is no evidence that would satisfy me that there exists a requisite connection between the two entities. While I am satisfied that Mr Keyes’ employment with Ollywood was terminated, he commenced work with AFS within 3 months, and the work was substantially the same, I am not satisfied that any of the requirements of s 311(3), (4) or (5) have been met. In this regard, there is no evidence that there was a transfer of assets from Ollywood to AFS, and there was no suggestion that Ollywood outsourced the work to AFS or that AFS decided to in-source the work.

[22] I therefore find that Mr Keyes is not a transferring employee within the meaning of s.311 of the Act. As a result, his service with Ollywood does not count towards the length of his continuous service with AFS.

[23] For the above reasons, I find that Mr Keyes has not completed the minimum employment period and is not a person protected from unfair dismissal. Given my finding, it is not necessary to determine whether an extension of time ought be granted for Mr Keye’s application.

[24] Accordingly, I dismiss Mr Keye’s application. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

M Keyes, on his own behalf.

J Carroll, for Ag Forestry Solutions Pty Ltd.

Hearing details:

2019.

Wagga Wagga.

May 2.

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