Michael Lewis v Altus Traffic Pty Ltd

[2015] FWC 1982

[2015] FWC 1982

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Lewis
v
Altus Traffic Pty Ltd
(U2014/11333)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 23 MARCH 2015

Application for relief from unfair dismissal.

[1] Mr Michael Lewis alleged that the termination of his employment by Altus Traffic Pty Ltd (Altus) was unfair. Altus objected to Mr Lewis’ application, alleging Mr Lewis was not employed for the minimum period of employment.

[2] Mr Lewis said he attended an induction with Altus on 27 January 2014 but was not paid. He said he was told that day to report for work the next day. He said he worked on that day at Butler where he performed traffic management duties. He said he worked on the next day as well at the same site doing the same work. He said he was out there for 10 days.

[3] Mr Lewis explained that he was initially notified verbally of work and after about two weeks, he was notified by text message of work and he could accept or reject it. He accepted that he did not get a text message each day.

[4] He relied on a document provided by Salvation Army Employment Plus which advised that his start date with Altus was 28 January 2014. This was confirmed in an email from Altus that said he was to be employed as a casual depending on the availability of work from that date. 1

[5] Mr Lewis also provided an extract from his bank account statement which showed a payment from Altus dated 12 February 2014 and an extract from the employee handbook which said that a new employee can wait up to two weeks for their first pay. He submitted that these documents support the submission that he commenced work on 28 January 2014.

[6] Mr Lewis gave evidence that he did not receive pay slips during the time of his employment and he said that Altus did not have accurate records of the date he commenced working.

[7] Altus submitted pay details for Mr Lewis for what it said was the entire period of Mr Lewis’ employment. The first pay was for the period ending 9 February 2014 and it lists the first day of work as 4 February 2014. 2 That pay advice noted that Mr Lewis worked three days and was paid a net amount of $680.48. This amount matches the amount shown in Mr Lewis’ bank statement as being paid on 12 February 2014. There was no earlier payment made by Altus. The next payment was made on 19 February 2014 and that matches the second payslip for the period ending 16 February 2014.

[8] Mr Lewis put to Ms Alexandra Marriott that she had failed to produce the Date of Arrival (DOA) document and his contract of employment. Mr Lewis put to Ms Marriott that all businesses use the DOA document as it evidences when an employee commences employment. Ms Marriott gave evidence that such a form was not used by Altus. Ms Marriott also explained that traffic controllers were not given written contracts of employment. She said that attending induction was a pre-employment requirement. She also said that prospective employees are generally required to sign a terms and conditions of casual employment sheet and sign that they have been advised of the relevant policies and procedures at the induction, but these documents do not evidence when a casual employee commences work. Mr Lewis did not give evidence that he signed a contract of employment. It was Ms Marriott’s evidence that all prospective casual employees, having completed induction, are placed into Altus’s system but they do not become employees until they engage in paid work.

[9] Mr Lewis put to Ms Marriott that the computer system had malfunctioned at this time and as a consequence, no payslips were issued for the period when he said he commenced performing work. Ms Marriott said that as this had been raised at the earlier hearing, she had made enquires of the pay roll department and she was told there were no issues with the payroll system at this time.

[10] Mr Lewis put to Ms Marriott that she was deliberately hiding documents from the Fair Work Commission which would prove that he commenced work on 28 January 2014. Ms Marriott denied this allegation.

[11] I am prepared to assume that Mr Lewis signed a document on 27 January 2014 in relation to his casual employment. However, I do not consider that document is proof of when Mr Lewis commenced employment. I accept Altus’s submission that as a prospective employee Mr Lewis’ start date was not the date he signed the document, but the date he first performed paid work for Altus.

[12] Mr Lewis put to Ms Marriott that as she was on leave in January 2014 she had no direct knowledge of whether Mr Lewis worked on that day and Altus had not called any witnesses to contradict his evidence. Ms Marriott agreed that she was on leave at the time he commenced employment but she stood by the records she had produced.

[13] Altus submitted worksite diaries commencing on 4 February 2014 which show that Mr Lewis worked on 4 February 2014 at Brendon Avenue-Holly Ford. Ms Marriott gave evidence that these were the only work diaries that existed which showed when Mr Lewis worked.

[14] Altus submitted that Mr Lewis commenced employment on 4 February 2014 and his employment ended on 30 July 2014 and hence he was employed for less than six months.

[15] In addition, Altus submitted that even if I found that Mr Lewis was employed from 28 January 2014, he was not employed on a regular and systematic basis. Ms Marriott provided a spreadsheet which showed the pattern of Mr Lewis’ work.

[16] It is not necessary for me to decide this question because I prefer the evidence of Ms Marriott about the commencement date of Mr Lewis’ employment.

[17] I accept that Mr Lewis was placed on the books as a casual employee from 28 January 2014, however, that does not mean as a casual employee he commenced employment on that date. A casual employee does not commence employment until the first day of actual work. I do not accept that the documents relied upon by Mr Lewis evidences the day he actually commenced work. The email he tendered acknowledged that he was engaged as a casual employee. Mr Lewis relied on Centrelink’s view of his employment status which he said supported finding that he started on 28 January 2014. I do not accept that submission. Again, the real question is when did Mr Lewis actually commence performing work?

[18] Mr Lewis was of the view that he was employed once he was on the books and he was available for work. He said he held himself ready for work from that date. However, there was no evidence that he was told to hold himself available for work. As a casual employee, he was able to accept and reject work. Mr Lewis did not become an employee until he actually commenced work.

[19] Mr Lewis gave evidence that he attended work on 29 and 30 January 2014.

[20] On 2 March 2015, I asked Altus to provide the worksite diaries/time sheets for work at Brendon Ave-Holly Ford Butler for 28 and 29 January 2014. Altus advised that they did not commence working at this site until 4 February 2014. Altus then provided documents for that client for 28 and 29 January 2014 and 1 and 3 February 2014. Mr Lewis is not recorded as working on any of these dates for this client. Mr Lewis was provided with copies of the documents and advised that if he did not dispute the accuracy of the documents, I would have regard to them in my decision. Mr Lewis alleged that Altus did not supply the documents as requested. He made no comment on the documents provided.

[21] I do not accept Mr Lewis’ evidence that he commenced work on 28 January 2014, as that evidence is inconsistent with the documentary evidence provided by Altus and the payments made to Mr Lewis. Other than his oral evidence, there is no documentary evidence or other evidence provided by Mr Lewis to support a finding that he worked that day. Mr Lewis himself acknowledged that he could not remember things that happened 12 months ago. The first payment received by Mr Lewis was for the work performed on 4, 5 and 6 February 2014. While Mr Lewis gave evidence that he did not receive the pay advices at the time, he did not give evidence that he was not paid for the work he performed. Further, Mr Lewis gave evidence that he worked at this site for the next 10 days. That evidence is not supported by the pay records or the worksite diary.

[22] While Mr Lewis alleged there was computer failure, he produced no evidence to support that allegation. Ms Marriott denied that there was any computer issue at this time which impacted on pays. I accept her evidence.

[23] I therefore find that Mr Lewis did not commence work for Altus until 4 February 2014 and as his employment was terminated on 30 July 2014, the minimum employment period ended at midnight on 3 August 2014. As Mr Lewis was not employed at this time, he had not served the minimum employment period and he was not protected from unfair dismissal.

DEPUTY PRESIDENT

Appearances:

M Lewis on his own behalf.

A Marriott for the Respondent.

Hearing details:

2015.

Melbourne and Perth (video hearing):

16 February.

 1   Exhibit A1.

 2   Exhibit R1.

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