Michele Williams v Caboolture Law Pty Ltd

[2020] FWC 1295

[2020] FWC 1295

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michele Williams
v
Caboolture Law Pty Ltd
(U2020/421)

COMMISSIONER SIMPSON BRISBANE, 12 MARCH 2020

Application for an unfair dismissal remedy –Respondent incorrectly identified – Application amended by consent to correct identity of Respondent – Matter not yet the subject of conciliation – Matter referred for conciliation by agreement of the parties

[1] In the course of a directions hearing on 11 March I issued a decision to grant an application to amend the application U2020/421 by changing the named Respondent from Caboolture Law Pty Ltd to BIIK Pty Ltd. I advised the parties I would issue brief written reasons.

[2] On 11 January 2020 Michele Williams made an application for unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act)that identified the Respondent to the application as Caboolture Law Pty Ltd.

[3] On 23 January 2020 Mr Peter Clowes Smith, a Solicitor who owns a legal practice trading as Caboolture Law sent correspondence to the Fair Work Commission (the Commission) advising that the matter cannot proceed in its present form as Ms Williams was not employed by Caboolture Law Pty Ltd and was employed by BIIK Pty Ltd, a service company Mr Smith utilises to run his legal practice.

[4] On 10 February 2020 Ms Williams sent correspondence to the Commission attaching payslips that identified her employer as Caboolture Law Pty and including an ABN number that was the ABN number for Caboolture Law Pty Ltd.

[5] On 18 February 2020 Vice President Catanzariti sent correspondence to Ms Williams noting the objection filed by Mr Smith and the payslips provided by Ms Williams and requesting that if Ms Williams believed she was employed by Caboolture Law directly to provide a submission outlining her reasons.

[6] On 28 February 2020 Ms Williams sent correspondence to the Commission advising in summary that she believed she was an employee of Caboolture Law Pty Ltd however in the alternative if that was not the case she wished to amend the application. Ms Williams attached to her correspondence ASIC searches for Caboolture Law Pty Ltd and BIIK Pty Ltd.

[7] On 2 March 2020 Vice President Catanzariti reallocated the matter to me. On 9 March 2020 Ms Williams sent correspondence to the Commission seeking to amend her application to include both Caboolture Law Pty Ltd and BIIK Pty Ltd.

[8] On 9 March 2020 Mr Smith sent correspondence to the Commission enclosing a copy of a document described as Ms Williams’ employment details signed by her to assist the Commission. The document provided is headed “BIIK Pty Ltd Peter Clowes Smith T/A Caboolture Law Practice Employee Details Form. The document is signed by Ms Williams and dated 15 February 2019. Provided with that document was another document with the same heading as set out above and described as a confidentiality agreement that was executed by Mr Smith on behalf of BIIK Pty Ltd and by Ms Williams and also dated 15 February 2020. Although the document does not appear on its face to be a contract of employment it does appear to be an agreement about confidentiality between BIIK Pty Ltd as the employer of Ms Williams as its employee.

[9] The matter was listed for a Directions Hearing by telephone on 11 March 2020. Mr Smith made submissions to the effect that Ms Williams commenced employment with BIIK Pty Ltd from 15 February 2019. Mr Smith accepted that Ms Williams had been employed by Caboolture Law Pty Ltd from September 2018 until her employment transferred to BIIK Pty Ltd.

[10] Mr Smith submitted that the incorrect record appearing on the payslips after this time identifying the employer as Caboolture Law Pty Ltd was an administrative oversight and he has since taken steps to amend employee records to correct this error. Mr Smith said that there are seven employees.

[11] I advised Ms Williams that it was necessary to determine who the employer was in order for the application to proceed and it could not proceed against two entities. Ms Williams raised a concern that if Mr Smith’s submission was correct she may not satisfy the minimum employment period. I advised the parties that in the case of a transfer of employment from an old employer to new employer previous service is recognised for the purposes of the minimum employment period unless the new employer informed the employee in writing before the new employment that service with the old employer would not be recognised.

[12] Both Ms Williams and Mr Smith agreed that no such advice was given to Ms Williams in this case and I indicated to the parties that Ms Williams would meet the minimum employment period on that basis if there was a transfer of employment as described by Mr Smith. This resolved Ms Williams concern regarding that issue.

[13] I indicated that on the material it appeared BIIK Pty Ltd was the employer at the time of termination. Ms Williams agreed on the basis of the material now before the Commission that BIIK Pty Ltd was her employer at the time of termination and requested that the application to reflect that position. Mr Smith did not oppose the application and I granted the application under s.586 of the Act.

[14] The amendment having been granted, Mr Smith agreed that BIIK Pty Ltd would file a Form F3 Employer response to the application. Mr Smith raised the matter of the application not yet having been the subject of conciliation. Ms Williams agreed that the application should proceed to conciliation and on that basis I have referred the file for conciliation.

COMMISSIONER

Appearances:

Ms M. Williams appearing on her own behalf.
Mr P. Smith appearing for the Respondent.

Hearing details:

2020,
Brisbane
March 11

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