Minas Trialonas v 3D Scaffolding Pty Ltd
[2017] FWC 3138
•23 JUNE 2017
| [2017] FWC 3138 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Minas Trialonas
v
3D Scaffolding Pty Ltd
(U2016/15558)
| COMMISSIONER JOHNS | SYDNEY, 23 JUNE 2017 |
Application for relief of unfair dismissal – identity of employer – power to amend the name of the respondent.
Introduction
On 23 December 2016 Mr Minas Trialonas (applicant) made an application to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work Act 2009 (FW Act) for a remedy in respect of his dismissal by his employer, which he identified as “3D Scaffolding”.
On 13 January 2017 a Form F3 – Employer Response to Unfair Dismissal Application (Form F3) was filed by Steric Solutions Pty Ltd (Steric Solutions). Steric Solutions filed the Form F3, rather than an entity identified as “3D Scaffolding”, because Steric Solutions asserted that, at all relevant times, it was the employer of Mr Trialonas.
3D Scaffolding Pty Ltd also says the proper employer was, at all relevant times, Steric Solutions.
Notwithstanding, Mr Trialonas maintained that 3D Scaffolding Pty Ltd and not Steric Solutions was his employer. Consequently, the reference to “3D Scaffolding” in the F2 Unfair Dismissal Application was taken to mean a reference to 3D Scaffolding Pty Ltd (3D Scaffolding).
As a preliminary issue it was necessary to determine the identity of Mr Trialonas’ employer. The matter was listed for hearing on 5 May 2017.
Permission to be represented
The applicant sought permission to be represented. A determination of whether to grant the applicant permission to be represented was necessary to ensure that the manner in which any hearing was conducted was fair and just.[1]
Section 596 of the FW Act provides as follows:
“Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.”
The applicant opposed the respondent being represented.
The identity of the proper employer of Mr Trialonas necessitated an examination of a complex web of interrelated companies. Consequently, having considered the factual matters to be considered the Commission, as presently constituted, determined that allowing the applicant to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
The hearing
At the hearing:
a) the applicant was represented by Mr A Jensel of counsel, instructed by Mr A Keleman, the applicant’s paid agent. The applicant gave evidence on his own behalf.
b) 3D Scaffolding was represented by James Docherty, a shareholder. He gave evidence on its behalf.
c) Steric Solutions was represented by Leanne Docherty, its Director. She gave evidence on its behalf.
In advance of the hearing the parties had filed materials. In coming to this decision the Commission, as presently constituted, has had regard to the following documents in addition to the oral evidence and other documents tendered during the hearing:
| EXHIBIT NO. | DESCRIPTION | TRANSCRIPT REFERENCE |
| Applicant’s documents | ||
| nil | Form F2 – Unfair Dismissal Application | nil |
| A1 | Applicant’s outline of submissions dated 8 April 2017 | PN17 |
| A2 | Applicant’s supplementary outline of submissions dated 3 May 2017 | PN19 |
| nil | Applicant’s further supplementary outlined of submissions dated 12 May 2017 | nil |
| A3 | Current company extract for 3D scaffolding admin Pty ltd | PN25 |
| A4 | Current company extract for 3-D scaffolding Pty ltd | PN26 |
| A5 | Current company extract for Steric Solutions | PN31 |
| A6 | Witness statement of Mr Minas Trialonas | PN80 |
| A7 | Email from Ms Leanne Marie Docherty dated 3 May 2017 sent at 2:47 pm to Commissioner Johns’ Chambers but signed off as Ms Betty Orel. | PN951 |
| A8 | Email from Ms Leanne Marie Docherty dated 13 January 2017 from a different email address. | PN952 |
| Nil | Screenshot from 3D Scaffolding Pty Ltd website | nil |
| Steric Solutions’ documents | ||
| Nil | Form F3 – Employer Response to Unfair Dismissal Application filed by Steric Solutions Pty Ltd | nil |
| Nil | Remittance Advice from Steric Solutions Pty Ltd to Mr Trialonas dated 20 October 2016 | nil |
| Nil | Payroll Advice from Steric Solutions Pty Ltd to Mr Trialonas dated 28 June 2016 | nil |
| Nil | Payroll Advice from Steric Solutions Pty Ltd to Mr Trialonas dated 6 December 2016 | nil |
| Nil | Steric Solutions Pty Ltd Bank Transaction History Excerpt dated 6 December 2016 | nil |
| Nil | Steric Solutions Pty Ltd Bank Transaction History Excerpt dated 28 June 2016 | nil |
| Nil | Work Cover Injury Claim Form | nil |
| Nil | PAYG Summary from Steric Solutions Pty Ltd to Mr Trialonas dated 30 June 2016 | nil |
| Nil | Transaction Group Record belonging to Steric Solutions Pty Ltd dated 28 June 2016 | nil |
| Nil | Submissions submitted by Ms Leanne Docherty on behalf of Steric Solutions Pty Ltd dated 12 May 2017 | nil |
| 3D Scaffolding’s documents | ||
| Nil | Submissions submitted by Mr James Docherty on behalf of 3D Scaffolding dated 12 May 2017 | nil |
At the conclusion of the hearing the parties were given additional time to file final written submissions about the capacity of the Commission to amend the name of a respondent to an unfair dismissal application. Subsequently, on 12 May 2017,
a) the Applicant filed Supplementary Outline of Applicant’s Submissions, and
b) Steric Solutions filed correspondence objecting to the respondent’s name being amended.
The Docherty Group Companies
In order to understand the complexity of the central question being, “who was Mr Trialonas’ employer?” it is necessary to understand that there are a number of companies that make up the group of companies owned and operated by various members of the Docherty family (Docherty Group Companies).
They are as follows:
| 3D Scaffolding Admin Pty Ltd[2] | 3D Scaffolding Pty Ltd[3] | Steric Solutions Pty Ltd[4] | |
| Director | Robert Docherty | Paul Docherty | Leanne Docherty |
| Shareholders | Charlie Docherty | Charlie Docherty | Leanne Docherty |
| James Docherty | James Docherty | Geoffrey Docherty | |
| Robert Docherty | |||
| Employees | Robert Docherty | David Docherty | |
| Betty Orel | |||
| George Orel | |||
| Lyn Montgomery |
In terms of the three entities:
a) 3D Scaffolding Admin Pty Ltd is not trading[5] although it continues to have vehicles registered to it. Those vehicles are then used by 3D Scaffolding.[6]
b) 3D Scaffolding provides scaffolding to builders and the like.[7] It was said that the forklift used by Steric Solutions (without a fee) is owned by a trust and that 3D Scaffolding is the trustee for the trust.[8] Those that erect the scaffolding are usually contractors of 3D Scaffolding.[9] It was not clear who owns the actual scaffolding. Leanne Docherty gave evidence that she did not know who owned the scaffolding.[10]
c) Steric Solutions is in the business of storing and maintaining scaffolding. When 3D Scaffolding receives an order for the installation of scaffolding, it instructs Steric Solutions to make up the order and retrieve the necessary scaffolding from where it stores it. 3D Scaffolding pays Steric Solutions a monthly fee[11] pursuant to an oral contract.[12]
It is also necessary to understand the relationships that exist between the various Docherty dramatis personæ.
| The brothers & sister | Charlie Docherty | Robert Docherty | James Docherty | Betty Orel |
| Others | Lyn Montgomery[13] | George Orel[14] | ||
| The children | Leanne Docherty | Geoffrey Docherty | ||
| David Docherty | ||||
| Paul Docherty |
As can be observed:
a) Brothers, Charlie Docherty, Robert Docherty and James Docherty are the owners of 3D Scaffolding Admin Pty Ltd of which Robert Docherty (the father of Leanne Docherty) is the Director.
b) Cousins Leanne Docherty and Geoffrey Docherty are the owners of Steric Solutions of which Leanne Docherty is the Director.
c) Brothers Charlie Docherty and James Docherty are the owners of 3D Scaffolding Pty Ltd of which Paul Docherty (James’ son) is the Director.
d) When his employment was terminated the applicant was the only employee of a Docherty Group Company not a member of the family.
Early in the proceedings James Docherty claimed that “Robert (Docherty) has no bearing on the (3D Company) except he is employed.”[15] However, it became clear that was not the truth. Despite the ownership and directorship of 3D Scaffolding, it was later established that Charlie and James’ brother, Robert (Leanne’s dad), actually runs 3D Scaffolding.[16]
At the hearing neither the Director of 3D Scaffolding (Paul Docherty) nor the person running 3D Scaffolding (Robert Docherty) represented the Respondent. That was left to James Docherty, i.e:
a)the father of the Director;
b)the brother of the person running 3D Scaffolding; and
c)a shareholder in 3D Scaffolding.
James Docherty professed that he has not worked for 3D Scaffolding since 2009[17] and that he has no involvement in its operations (other than being a shareholder[18]) or anything to do with Steric Solutions[19]. It was curious then that it was he who was designated to represent 3D Scaffolding and conduct its defence. His conduct and involvement during the proceedings was inconsistent with the role usually played by a mere and passive shareholder.
3D Scaffolding’s website[20] claims that,
“3D Scaffolding is a family owned and run business established in 1987. We are a leading scaffolding company with over 26 years’ experience. We supply all labour, transport and hire with a large storage and maintenance facility. All scaffold used on site is maintained and certified to meet Australian Standards. 3D Scaffolding relies on its reputation of completing all jobs on time and to the customer’s satisfaction. We specialise in a wide range of scaffolding services.
· Tube & Fitting
· B’Class Scaffold Hoardings
· High Rise Scaffolds
· Birdcage Scaffolds
· Cantilevered Scaffolds
· Alloy/Stretcher Stair Access”
What is clear from what is communicated to the public on the 3D Scaffolding website is that the functions of 3D Scaffolding and Steric Solutions are all attributed 3D Scaffolding. There is no mention of Steric Solutions on the website. A client contracting with 3D Scaffolding is not to know who owns the assets that it is hiring.
Further, 3D Scaffolding and Steric Solutions share a work address and phone number. A member of the public calling the number will gain the impression that they are calling 3D Scaffolding[21] (no mention is ever made of Steric Solutions).
Further still, despite not being an employee of 3D Scaffolding, a shareholder or director, Leanne Docherty uses a 3D Scaffolding email address and 3D Scaffolding email signature block. Leanne Docherty explained this as just helping out her Aunt Betty.[22] However, correspondence sent by her to the Commission in this proceeding also came under a 3D Scaffolding email signature. The outside world would be forgiven for thinking that Leanne Docherty is a representative of 3D Scaffolding.
Likely, the arrangements between the Docherty Group Companies are in place as a result of a careful consideration of business, corporate and tax affairs. That is a matter for the Docherty family. There is nothing inherently improper about the structure they have put in place. However, as is apparent from the description above, it would not be surprising if this complex web of arrangements was beyond the comprehension of an unskilled (non-family member) employee of any of the Docherty Group Companies. When there are group company arrangements in place most employees pay little attention to who might be their actual employing entity so long as they get paid each week for the work they do.
Non-contentious matters
The following matters were either agreed between the parties or not otherwise substantially contested. Consequently, the Commission, as presently constituted, is satisfied on the evidence that:
a) In or around June 2006 the applicant received a phone call from Robert Docherty. Robert Docherty offered the applicant a job. The applicant understood that job to be with 3D Scaffolding.[23] Only the applicant and the respondent were party to that conversation.[24]
b) Leanne Docherty accepted that her father hired Mr Trialonas.[25] It was her evidence that it was likely that, after speaking with the applicant, Robert Docherty spoke to her about the applicant commencing work.[26]
c) On 1 July 2006 the applicant commenced work.[27] He was employed as a yard hand.[28] His job was to drive the forklift, sort scaffolding, stack scaffolding and check scaffolding.[29]
d) The applicant reported to Leanne Docherty.[30] In the day to day conduct of his work the applicant received instructions from Leanne Docherty.[31]
e) The applicant wore a 3D Scaffolding uniform.[32]
f) From time to time James Docherty attended the site[33]. He does so to work on machinery as a hobby.[34] The applicant gave evidence that when James Docherty came on site he too would, from time to time, give instructions to him.[35] However, for present purposes I am not satisfied that any instructions given by James Docherty were in the course of the applicant’s employment. It seems clear that the James Docherty was on site rarely.[36] More likely than not, if the applicant was assisting James Docherty it was not in his capacity as an employee. The applicant was assisting James Docherty in James’ personal capacity not as a representative of 3D Scaffolding.
g) The applicant’s wages were paid by Steric Solutions. For all of his employment he received payslips and Group Certificates from Steric Solutions.[37] When the applicant filed his annual tax returns he listed Steric Solutions as his employer.[38]
h) When the applicant made claims for workers’ compensation he nominated Steric Solutions as his employer.[39]
i) On 6 December 2016 there was an incident. From the applicant’s perspective there was machinery obstructing a pathway. Leanne Docherty said the applicant should move it. Mr Trialonas (who is vision impaired in one eye) explained that when he walks into the factory from outside it takes time for his eyesight to adjust. He has previously stumbled and hurt himself. An argument ensued, in the course of which the applicant called Leanne Docherty a “backstabbing cunt”.
j) In the course of the hearing it was put to the applicant that his conduct was inappropriate. As the following exchange demonstrates Mr Trialonas disagreed.
Commissioner: “Do you think that was appropriate language to use to her?”
Mr Trialonas: “Just like everybody else, yes, of course it was. Everybody else uses inappropriate language.”
Commissioner: “Sorry, Mr Trialonas, … is it your evidence that you think it’s appropriate to call someone that in the workplace?”
Mr Trialonas: “Of course, yes it is.”[40]
The applicant said that “it was not uncommon for such language to be used in the workplace.”[41]
While I understand that colourful language is often used in the building and construction industry, even in the most robust of work environments the use of the “C-word” is still considered beyond the pale. It is a vulgar term. It dehumanises women by reducing them to a mere body part. In this matter I am satisfied that Mr Trialonas’ use of the word was intended to disparage Leanne Docherty and offend her. I reject entirely his assertion that “of course” it is appropriate to use it in the workplace. It is not.
k) Leanne Docherty was so upset by what Mr Trialonas called her that she sent him home.
l) On 7 December 2016 the applicant sent Leanne Docherty a text message and apologised. Ms Docherty did not respond, so Mr Trialonas called her. They chatted for a short while. Leanne Docherty invited Mr Trialonas to her home that evening so that they could talk.[42]
m) At the meeting at her home Leanne Docherty offered Mr Trialonas his job back. She said she felt sorry for him.[43]
n) On 8 December 2016 the applicant attended for work. He and Leanne Docherty interacted normally and there was no discussion of the disagreement.[44] However, Ms Docherty said she thought she had made a mistake by allowing Mr Trialonas to return.[45]
o) On 9 December 2016 James Docherty attended the site. He and his niece, Leanne Docherty, had a loud disagreement.[46] It was Leanne Docherty’s evidence that James Docherty told her that Mr Trialonas was an unsafe worker and that “he shouldn’t be there anymore”.[47] The exchange with her uncle caused Ms Docherty to cry.[48]
p) After the discussion with her uncle, Leanne Docherty approached the applicant and told him that “James had directed her to dismiss [him]”. When the applicant asked why, Ms Docherty responded by saying “because [you] don’t listen”.[49] Leanne Docherty said she could not recall what was said during this conversation.[50] James Docherty said that all he did was provide his niece with “advice”. I reject his evidence. The version of events put forward by the applicant is consistent with Leanne Docherty being in tears after the conversation with her uncle. Consequently, I accept the applicant’s version of events.
q) The applicant packed up his belongings and left.[51]
r) On 14 December 2016 Mr Trialonas and Leanne Docherty met at a pub. They spent a few hours together drinking and talking.[52] Ms Docherty apologised to the applicant for putting him off so close to Christmas. According to Mr Trialonas, Ms Docherty said “James had forced her to do it against her will.”[53] Ms Docherty initially said that she could not remember saying that.[54] However, when it was put to her that that was Mr Trialonas’ evidence, she said “Okay”.[55]
s) From all of the above it seems that, more likely than not, the reason for the termination of Mr Trialonas’ employment was not the vulgar language that he directed at Ms Docherty on 6 December 2016, but a direction given by James Docherty to his niece. It seems that the reason for the termination was that the part owner of Ms Docherty’s only customer wanted Mr Trialonas gone. This put her in a difficult position, but she obliged.
t) At the time of his dismissal the applicant earned $990.97 gross per week ($51,530.44 per annum).
u) Since the termination of his employment on 9 December 2016 the applicant has been unemployed.[56] Although he has been able to pick up a couple of days work.[57]
Protection from Unfair Dismissal
An order for reinstatement or compensation may only be issued where the Commission is satisfied the applicant was protected from unfair dismissal at the time of the dismissal.
Section 382 sets out the circumstances that must exist for the applicant to be protected from unfair dismissal:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
In the present matter 3D Scaffolding says the applicant is not protected from unfair dismissal (by it) because it was not the employer of the applicant. Consequently, it submits the Application should be dismissed because, it says, the applicant was not “an employee who had completed a period of employment with” 3D Scaffolding, by reason of the non-existence of an employment relationship between him and 3D Scaffolding.
3D Scaffolding says the proper employer was, at all relevant times, Steric Solutions Pty Ltd. Steric Solutions also says it was, at all relevant times, the applicant’s employer.
Mr Trialonas maintains that 3D Scaffolding was his employer.
The Employer Issue – 3D Scaffolding Submissions
On 3 May 2017, Betty Orel (James Docherty’s sister and Leanne Docherty’s aunt) wrote to the Commission (using a 3D Scaffolding email signature block) in the following terms,
“Please find enclosed relevant paperwork to support the fact that Minas Trialonas is not and never was employed by 3D Scaffolding.
He was actually employed by Steric Solutions (attached paperwork supplied by Steric Solutions will verify this).”
Attached to the email were the following documents:
a) An October 2016 Alliance Australia Workers’ Compensation (NSW) Ltd remittance advice directed to Steric Solutions in respect of a claim for Mr Trialonas.
b) Payroll advices from Steric Solutions.
c) Bank transaction history records which show payments being made by Steric Solutions.
d) A workers’ compensation claim form signed by the applicant naming Steric Solutions as his employer.[58]
e) Commonwealth Bank records of wages being paid (interestingly authorised by Betty Orel i.e. an employee of 3D Scaffolding).
In his written submissions filed on 12 May 2017 James Docherty maintained that 3D Scaffolding was not the employer of Mr Trialonas. Oddly, most of the remainder of the submission is about the substantive unfair dismissal matter. Much of what was submitted would ordinarily be expected from the actual employer.
The Employer Issue - Steric Solutions Submissions
Steric Solutions did not file any written submissions. During the hearing Leanne Docherty maintained that Steric Solutions was the employer.
The Employer Issue – Applicant’s Submissions
The applicant maintained that 3D Scaffolding was the correct employer (and respondent). He submitted that in determining who the proper employer was the Commission should not determine the question simply by looking at the “formal or paper considerations, but according to substance”. The applicant submitted,
“2. That Steric Solutions may have been the paymaster or provided administrative or labour hire services to 3D Scaffolding or may, for any other reason, have sought to appear to be the employer, does not alter the reality that 3D Scaffolding was the employer and the proper respondent.”
The applicant relied upon the following authorities.
a) Damevski v Guidice & Ors[59]: In this matter Mr Damevski commenced employment with Endoxos as a cleaner in 1998. In 2001 Mr Damevski “resigned” and began to “contract” his services to MLC Workplace Solutions. However, he continued to perform the same work for the benefit of and at the direction of Endoxos as he always had. When Mr Damevski was sick he notified Endoxos. Endoxos relocated Mr Damevski without consulting MLC. Endoxos increased Mr Damevski’s pay. An Endoxos supervisor informed Mr Damevski when he was being taken off day shift (and consequently, received no further work). Mr Damevski then commenced an unfair dismissal application against Endoxos.
At first instance Grainger C struck out the application on the basis that there was no employment relationship between Mr Damevski and Endoxos.[60] On appeal a Full Bench of the Australian Industrial Relations Commission also found there was no employment relationship between Mr Damevski and Endoxos at the relevant time and declined to grant leave to appeal.[61]
Mr Damevski appealed to the Federal Court of Australia.
The leading judgment of the Full Court was delivered by Justice Marshall.[62] His honour noted the “reality of the situation” as follows:
· There was no clear and unambiguous contract between MLC and Mr Damevski. There was no evidence that Mr Damevski signed any agreement with MLC nor any evidence produced regarding discussions or negotiations between Mr Damevski and MLC concerning a contractual arrangement.
The same might be said for Steric Solutions and Mr Trialonas.
· Mr Damevski already had a relationship with Endoxos.
That could not be said of Mr Trialonas apropos 3D Scaffolding.
· MLC performed nothing more than an administrative role in paying Mr Damevski. MLC then looked to Endoxos for reimbursement.
That could not be said of the relationship between Steric Solutions and Mr Trialonas. The evidence was that Steric Solutions paid Mr Trialonas, but did not seek reimbursement from 3D Scaffolding. Rather, on a monthly basis Steric Solutions invoiced 3D Scaffolding for storage and maintenance services.
· Endoxos retained the right to direct and control the performance of Mr Damevski’s work.
That could not be said of the relationship between 3D Scaffolding and Mr Trialonas. The evidence was that the Director of Steric Solutions, Leanne Docherty, directed Mr Trialonas in the performance of his work.
Marshall J considered the entire factual matrix and concluded that MLC acted as an agent for Endoxos in payment Mr Damevski on Endoxos’ behalf. Endoxos was held to be the employer via an implied contract.
b) FP Group Pty Ltd v Tooheys Pty Ltd[63]: In this matter the 10 applicants had lodged two unfair dismissal applications; one against FP Group Pty Ltd and one against Tooheys Pty Ltd. All of the applicants had previously been employed by Tooheys Pty Ltd until 1991 when they became employed by (what became) FP Group Pty Ltd. When their employment moved from Tooheys Pty Ltd to FP Group Pty Ltd they continued to undertake the same work that they had always performed for Tooheys Pty Ltd. In 2011 the relationship between Tooheys Pty Ltd and FP Group Pty Ltd ended. This resulted in FP Group Pty Ltd terminating the employment of its employees. Each of FP Group Pty Ltd and Tooheys Pty Ltd argued that the other was the employer of the employees. Issues of “agency”, “implied contracts” and also “joint employment” arose in the matter.
Ultimately, Deputy President Sams decided that FP Group Pty Ltd was the employer.[64] It appealed, but permission to appeal was refused.[65]
c) New Image Photographics Pty Ltd v Fair Work Ombudsman.[66]
d) Perrine v Personalised Freight Management.[67] Where Deputy President Gooley observed that,
“That Mr Perrine was paid by All States Personnel is not determinative of whether there was a contract of employment between Mr Perrine and Personalised Freight Management. The payslips, the group certificate and the notice from the child support agency are all consistent with All States Personnel being the payer of Mr Perrine’s wages. They do not establish that All States Personnel was Mr Perrine’s employer.”[68]
I have had regard to each of the decisions I was referred to.
The Employer Issue – Consideration
The concept of joint employment
In the present matter the corporate labyrinth that is the Docherty Group Companies is suggestive of a situation where, as between 3D Scaffolding (and its employees and owners) and Steric Solutions (and its employees and owners), there was a sharing of control and supervision of Mr Trialonas. Although all formal documentation listed Steric Solutions as the employer it seems that Mr Trialonas undertook work for the benefit of both it and 3D Scaffolding. Consequently, the issue of the possibility of joint employment might be said to arise. One of the earliest judicial references to joint employment appeared in the decision in Damevski v Guidice.[69]
However, while the concept of joint employment is recognised in the jurisprudence of the United States of America, it has not found its way into Australian employment law.
In FP Group Pty Ltd v Tooheys Pty Ltd[70] the issue of joint employment squarely arose.
At first instance[71] Deputy President Sams concluded as follows:
“[775] Counsel for FP put as an alternative submission, in the event its primary submission was not accepted, that the Commission might determine that both Tooheys and FP were the joint employers of the applicants. Unsurprisingly, Tooheys opposed this outcome.
[776] It must firstly be observed that the notion of joint employment is a relatively novel and untested concept in the Australian employment context. This is evident from the observation of Wilcox J[72] in Damevski at para [76]:
‘76 There are a few recent examples of cases concerning labour hire arrangements in which either contractual relationships have been found between a worker and a `host employer', or where the concept of dual employment has been entertained: see Oanh Nguyen and A-N-T Contract Packers Pty Ltd, t/as A-N-T Personnel v Thiess Services Pty Ltd t/as Thiess Services, [2003] NSWIRComm 1006 (unreported, IRCNSW, McKenna C, 3 March 2003); Morgan v Kittochside Nominees Pty Ltd (2002) 117 IR 152; Josie Bianchi v Staff Aid Services (unreported, AIRC, Commissioner Lewin, PR937820, 12 September 2003).’
See also: Arcadia at para [7].
[777] There are no authoritative decisions or judgements of the superior courts in Australia on the subject and those few decisions and academic dissertations which have dealt with the matter, have identified a number of problems with applying the concept of joint employment within the current legislative framework of industrial, corporations and contract law. As I understand, there are no decisions at all in Australia, which have found in favour of joint employment.
[778] It seems to me that two major difficulties with the notion of joint employment readily spring to mind. There may well be others. Firstly, in the absence of any contractual relationship, whether actual or implied, between the worker and the host employer in the context of the state of the law of contract in Australia, a finding of joint employment would seemingly be impermissible.
[779] Secondly, if two employers are held to be the joint employers of the employees, how would one determine the apportionment of liabilities relative to each of them? Presumably, in the absence of any clear statutory or judicial guidance, the task of apportioning liabilities would still require a complex and weighted analysis of all of the relevant indicia, including the terms of the contract, the surrounding circumstances, the history of the contractual arrangements and the intentions of the parties.
[780] Of course, there are considerable practical attractions to assigning a characterisation of joint employment to circumstances where the various indicia of an employment relationship can be attributed to both of the competing employers, but where it is difficult to establish on which side the predominance of employment indicia falls. In many ways, that would be the easy way out. However, as I have just mentioned, the notion of joint employment raises other more difficult and complex questions. That said, I am of the same view as other members of the Commission, that until there is clear statutory or judicial guidance on the principles of joint employment in the Australian context, it would be prudent for the Commission to proceed with extreme caution before adopting the concept to a particular set of circumstances.
[781] In any event, for the reasons which will become evident later, I do not see the facts and circumstances of this case as fitting within a prima facie case of joint employment. This is so, because I consider in balancing the facts and circumstances of this case, a firm positive conclusion can be made, in the conventional way, as to which one of the two respondents was the true employer of the applicants.”
On appeal the Full Bench agreed with the approach of Sams DP,
“[41] We consider that this was the correct approach. We would emphasise two points. Firstly, the application of a concept of joint employment to labour hire arrangements would involve a very considerable development of the common law. The cases in which Australian courts have analysed labour hire arrangements have invariably involved the identification of which one of two putative employers is in fact the employer. In no case has an Australian court approached the analysis on the basis that the exercise of control over the worker by the hirer of labour in a labour hire arrangement may render the hirer, together with the labour hire company, a joint employer of the worker. This is at odds with United States law (from which the conception of joint employment has been derived) where the analysis proceeds on this very basis. 22 We would respectfully adopt the description of the position by the South Australian Industrial Relations Commission (Hampton DP) in Costello v Allstaff Industrial Personnel (SA) Pty Ltd and Bridgestone TG Australia Pty Ltd23 as follows:
“[125] However, whilst a number of decisions have tentatively considered the concept more broadly, the application of joint employment so as to render two unrelated employers liable for the consequences of a dismissal, has not in my view been embraced with any conviction, at least where such was part of the dicta of the decision. Indeed, it is my appreciation that the law in Australia has generally strived to find one or other of the two putative employers to be the "real" employer. On this basis, the approach being urged upon this Commission would represent at least an evolutionary step, as conceded by the applicant, or possibly given the facts of this matter, a revolutionary step as portrayed by the respondents.”
[42] FP Group submitted that the “doctrine of joint employment has received consideration and support in Australia”, and went on to say in its written submissions:
“As there is no controversy that an express contract can be made between an employee and two employers in respect of the same work, it must follow that a joint employment can also be implied.”
[43] That submission puts the position far too highly. We do not consider that the two cases cited by FP Group in support of it articulate any such proposition. 24 The current state of consideration concerning the concept of joint employment in Australian law was stated by the Federal Court (Collier J) in Fair Work Ombudsman v Eastern Colour Pty Ltd25, in the context of a determination concerning whether a pleading of joint employment should be struck out, as follows:
“[78] To the extent that the applicant’s case is that the first, second and third respondents (or alternatively the second and third respondents) jointly employed the relevant employees, the cause of action is novel, but in my view not unknown to law. As the applicant submits, it is a cause of action entertained by US law. It has also been entertained, although not considered and decided, in such cases as Morgan v Kittochside Nominees Pty Ltd (2002) 117 IR 152, and subsequently Nguyen v A-N-T Contract Packers Pty Ltd [2003] NSWIRComm 1006, Bianchi v Staff Aid Services [2003] AIRC 1150and Savage v Department of Education [2004] AIRC 552. While traditionally, in circumstances where multiple entities are alleged to be “the employer” of a person, the approach of the Courts of this country has been to seek to identify which one of those entities is the employer, a claim that multiple entities perform that role is not unarguable or unintelligible (contrast for example findings in Stergiou v Phelps [1999] FCA 1563, Walsh v University of Technology, Sydney [2007] FCA 1288 and Kowalski v Mitsubishi Motors Australia Ltd [2010] FCAFC 73) or so obviously futile or manifestly groundless on the state of the law that it discloses no reasonable cause of action within the meaning of O 11 r 16(1) (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129, contrast for example the decision of the Full Court Allstate Life Insurance Co). There is, in my view, scope in Australian law for a claim that multiple entities can jointly employ a person. Whether such a claim can be substantiated, either on particular facts or on the law following proper argument at a hearing, is a different question. However I consider it would be premature to find at this stage of the proceedings that the applicant’s claims in paragraphs 11(b), 11(c), 12, 18, 19, 20, 23, 24 and 25 should be struck out as disclosing no cause of action known to law.”
[44] Although this Commission is frequently required, in the course of exercising its jurisdiction under the Act, to apply common law doctrines and principles, we do not consider that the Commission’s role as a statutory tribunal extends to engagement in the development of the common law. That is a matter for the courts. Accordingly we cannot find that jurisdiction exists for the Commission to hear the applicants’ claims against Tooheys on the basis of joint employment absent any firm adoption of that concept in Australian law by the courts.
[45] Secondly, and in any event, it must be the case as the Deputy President pointed out that for Tooheys to have been a joint employer of the applicants, there must still have been express or implied contracts of employment between Tooheys and the applicants. For the reasons already stated, there were no such contracts.”
In adopting the reasoning of the Full Bench (i.e. that it is not the Commission’s role as a statutory tribunal to engage in the development of the common law, that being a matter for the courts), I do not propose to further consider the issue of whether 3D Scaffolding and Steric Solutions were joint employers of Mr Trialonas.
Steric Solutions is the employer
As observed by Marshall J in Damevski where there is ambiguity of the contract between parties it requires “one to examine the entire factual matrix to establish what legal relationship, if any, actually [exists].”[73] Further, it is necessary to look beyond the documentary evidence.
The first observation to be made is that the factual matrix does not support a finding that Steric Solutions was operating akin to a labour supply agency to 3D Scaffolding. The uncontroverted evidence is that Steric Solutions was more than that. It provides scaffolding storage and maintenance services to 3D Scaffolding. It invoices on a monthly basis for those services, not just for the provision of labour. Nor does the factual matrix support a finding that there was an attempt to establish an Odco[74] type arrangement.
Further, Damevski can be distinguished from the facts in the present matter. Although there was no unambiguous written contract of employment between Mr Trialonas and Steric Solutions, all of the other documentary evidence is strongly suggestive of an employment relationship between Mr Trialonas and Steric Solutions. So too is the fact that it was Steric Solutions’ Director, Leanne Docherty, who directed and controlled Mr Trialonas’ work. There is no basis for implying a contract between Mr Trialonas and 3D Scaffolding as in Damevski. Nor is there a basis for finding that Steric Solutions was little more than a paying agent of 3D Scaffolding.
Considering all that the parties did and the factual matrix in this matter I am satisfied that it was the subjective intention of the parties that Mr Trialonas and Steric Solutions enter into a contract of employment. Further, consistent with the decision in Brambles Holdings v Bathurst City Council[75], I am satisfied that the conduct of parties should be held to be determinative in establishing offer, acceptance and intention in relation to the formation of a contract between them.
For these reasons I am satisfied that Steric Solutions was, at all times, the real and effective employer of Mr Trialonas.
Having decided that Steric Solutions was, at all relevant times, the applicant’s employer it is necessary to consider whether the Commission should amend the Application with the effect that Steric Solutions is named as the Respondent.
The Amendment Issue – Steric Solutions Submissions
During the hearing Leanne Docherty said she objected to Steric Solutions being substituted as the name of the respondent on Mr Trialonas’ Unfair Dismissal Application.[76] In her view it was too late. She said she made it clear from the beginning that Steric Solutions was the proper employer.[77]
In her (12 May 2017) written submissions Ms Docherty maintained her objection; again for the same reasons. She submitted that,
“9. It would be grossly unfair to Steric Solutions and any other applicants whom have been disallowed a claim made out of time if Minas Trialonas is given another go due to ignorance, arrogance and stupidity by himself and his legal team.”
The Amendment Issue – Applicant’s Submissions
The applicant submitted that the Commission has the power to substitute Steric Solutions for 3D Scaffolding in his original application.
The applicant relied upon the decision in Wybranski v Telstra[78]. In this matter an application was made to amend the name of the employer to an unfair dismissal application. In her unfair dismissal application Ms Wybranski described her employer as “Telstra (Contracted by Regent Recruitment)”. Although Ms Wybranski worked at a Telstra site her actual employer was Regent Recruitment. Telstra Corporation Ltd filed the F3 Employer Response denying that it was the employer. When the applicant sought to amend her unfair dismissal application (to have Regent Recruitment named as the respondent) Telstra objected to the same.
In deciding to allow the amendment Commissioner Roe observed that,
“[17] If I were to act as urged by Telstra I consider that I would not be acting with “equity, good conscience and the merits of the matter” as I am required to do by Section 578 of the Act. I would also be acting contrary to the objects of the Act that there should be “accessible and effective procedures to resolve grievances and disputes” (Section 3(e)) and the specific object of Part 3-2 of the Act that the procedures for dealing with unfair dismissal should be “quick, flexible and informal” and that those procedures should provide a fair go all round (Section 381).
[18] Read in the context of the circumstances and her original Application, the Applicant’s submission quoted earlier that she “no longer wishes to pursue her claim against Telstra” is not an admission that her original Application was against Telstra.
[19] The circumstances make it abundantly clear that the Applicant was seeking to make a claim against her employer. The Applicant worked during the whole of the relevant period in the Telstra premises and reported to Telstra employees. The Applicant alleges that a Telstra manager interviewed her for the job. The Applicant alleges that she was encouraged to believe that she would get a permanent position at Telstra and believes that subsequent to this she was given a verbal offer which she accepted by email. The Applicant now acknowledges that in fact she was at all times prior to the termination employed by Regent Recruitment, however, I am satisfied that this situation was by no means clear to the Applicant throughout her employment. I accept that it was reasonable in all the circumstances for the Applicant to regard her employment as being some sort of hybrid between Telstra and the labour hire agency acting for Telstra, Regent Recruitment.
[20] I am of course aware that employers on occasion seek to formalise employment relationships in written contracts. However, I am also aware that it is commonplace that employees do not carefully read or understand these documents. Often these documents are not easy to understand. Often these documents do not reflect the reality of the employment relationship. Often awards or agreements or other arrangements take precedent over such documents in certain important respects. Entering into an employment relationship is not like purchasing a house. The principal of buyer beware does not apply. There should be no expectation that a worker needs to involve a lawyer before entering into an employment relationship.
[21] The fact that the Applicant regarded the employment relationship as some sort of hybrid is illustrated by the Application. The Applicant does not state that Telstra is the employer. In fact the Applicant lists the employer as “Telstra (Contracted by Regent Recruitment)”. I am satisfied that this is clearly to be understood as meaning that the Applicant was employed by Regent Recruitment to undertake work for Telstra. The Application also makes it clear that there was an inconclusive process during the period of employment that the Applicant had expected would lead to permanent employment with Telstra. The Applicant freely admits in her Application that at the end of that process “Rod apologised for the situation and said that he hoped we could continue the contract arrangement.” The Applicant protested against this situation but does not seek to hide that this did not eventuate and that the “contract situation” with Regent Recruitment continued.
[22] The Applicant’s statement that “I believed that Regent Recruitment were acting on Telstra’s instruction” is arguably correct. The letter which the Applicant says was the termination letter referred to earlier from the Regent Recruitment Telstra Consultant confirms this. There may be some argument about whether or not this constituted a dismissal but that argument will need to be considered by a different member of this Tribunal. This further reinforces the reasonableness of the Applicant’s view that there was a hybrid employment situation and the reasonableness of her actions in describing the employer in the manner in which she did.
[23] I do not consider the fact that the Applicant used the address from where she worked during the period of her employment rather than the business address of Regent Recruitment to be of any significance. The parties to a labour hire arrangement of the sort utilised by Telstra and Regent Recruitment must expect that employees may use the addresses of the host employer and the address of the labour hire agency interchangeably.”
A number of the observations made by Roe C, are apposite in the present matter.
In addition to the decision in Wybranski v Telstra he relied upon Orilkowski v IPA Personnel[79], a decision of the Australian Industrial Relations Commission under the Workplace Relations Act 1996.
The Amendment Issue – Consideration
The relevant sections of the FW Act are sections 381, 578, 586 and 591.
“Section 381
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.
Note: The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.
Section 578
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c)…
Section 586
The FWC may:
(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or
(b) waive an irregularity in the form or manner in which an application is made to the FWC.
Section 591
The FWC is not bound by the rules of evidence and procedure in relation to a matter before it (whether or not the FWC holds a hearing in relation to the matter).”
Consistent with the decision in Wybranski, I am satisfied that, the circumstances and material before me demonstrates that, at all times the applicant was seeking to make an unfair dismissal application against his employer. For reasons associated with where he worked, the uniform he was required to wear and the unexplained labyrinth of Docherty Group Companies, Mr Trialonas had a reasonable belief that his employer was “3D Scaffolding” (regardless of what its actual legal name was). What occurred in this matter was the applicant failed to accurately specify that Steric Solutions was the employer.
Consequently, in all the circumstances I consider it appropriate pursuant to section 586 of the FW Act to correct the name of the employer in Mr Trialonas’ Unfair Dismissal Application to “Steric Solutions Pty Ltd”. The amendment is effective from the date that the Unfair Dismissal Application was made (i.e. 23 December 2016).
Conclusion
The Commission, as presently constituted, is satisfied that the applicant was, at all times, employed by Steric Solutions.
From the first time that an employer response was filed in the Commission Steric Solutions claimed to be the employer. From that date (13 January 2017) Steric Solutions should have been substituted as the respondent to the application for an unfair dismissal remedy lodged by Mr Trialonas.
Consequently, to the extent necessary the Commission, as presently constituted, Orders that the Form F2 – Unfair Dismissal Application lodged by Mr Trialonas on 23 December 2016 be amended pursuant to section 586(a) of the FW Act, with effect from that date, to record that the respondent is Steric Solutions Pty Ltd.
Noting that the Application was lodged on 23 December 2016 it was lodged within 21 days of when the dismissal took effect on 9 December 2016. Consequently, the Application was not out of time and it is unnecessary to grant an extension of time to the applicant to lodge his Application.
However, if I had been required to consider whether to grant an extension of time it seems to me that there is a prima facie basis for finding that there were exceptional circumstances because of the confusing and unexplained labyrinth of Docherty Group Companies. However, because the matter was not fully argued before me, I make no finding about the issue. It is neither appropriate nor unnecessary for me to do so.
An Order amending the name of the respondent will be issued with this decision.
It is now necessary for me to determine whether the dismissal of Mr Trialonas by Steric Solutions was harsh, unjust or unreasonable. Separate directions will be issued for the filing and service of additional materials in relation to section 387 and sections 390-393 (where, to date, the respondent has not made any submissions).
COMMISSIONER
Appearances:
Mr A Jensel, for the applicant
Mr James Docherty, on behalf of 3D Scaffolding Pty Ltd
Ms Leanne Docherty, on behalf of Steric Solutions Pty LtdHearing details:
2017
5 May
Sydney
Final written submissions:
Applicant’s further supplementary outlined of submissions dated 12 May 2017
Submissions submitted by Ms Leanne Docherty on behalf of Steric Solutions Pty Ltd dated 12 May 2017
[1] Warrell v FWC [2013] FCA 291.
[2] Exhibit “A3”.
[3] Exhibit “A4”.
[4] Exhibit “A5”.
[5] Transcript PN213. However, it was explained that 3D Scaffolding Admin Pty Ltd
[6] Transcript PN510-514.
[7] Transcript PN518.
[8] Transcript PN629-631.
[9] Transcript PN526.
[10] Transcript PN884.
[11] Transcript PN529 and PN817-818.
[12] Transcript PN832.
[13] James Docherty’s carer.
[14] Betty Orel’s husband.
[15] Transcript PN316.
[16] Transcript PN618-620 and PN657.
[17] Transcript PN609.
[18] Transcript PN604.
[19] Transcript PN404.
[20] Transcript PN126.
[22] Transcript PN948.
[23] Exhibit “A6” para 2. At the hearing the applicant maintained that he was offered a job by Robert Docherty (see Transcript PN209). The applicant’s Witness Statement was filed and served on or about 8 April 2017. 3D Scaffolding had every opportunity to call Robert Docherty to contest the evidence that he offered a job to the applicant. For whatever reason 3D Scaffolding chose not to call Robert Docherty. Accordingly, the Commission was left with the uncontroverted evidence of the applicant in so far as he attested to the conversation he had with Robert Docherty in June 2006. James Docherty gave evidence that Robert Docherty did not have the authority to employ anyone in June 2006, however, that evidence does not contradict what the applicant says occurred in his conversation with Robert Docherty.
[24] Transcript PN451.
[25] Transcript PN896.
[26] Transcript PN897.
[27] In material filed after the hearing Leanne Docherty asserted that Mr Trialonas commenced employment on 7 February 2005. The Tax File Declaration document was not tendered by her.
[28] Transcript PN92.
[29] Transcript PN94.
[30] Exhibit “A6”, para 3.
[31] Transcript PN95 and PN475.
[32] Exhibit “A6”, para 5.
[33] Transcript PN98.
[34] Transcript PN460 and PN742-744.
[35] Transcript PN482.
[36] Transcript PN742.
[37] Transcript PN187.
[38] Transcript PN187.
[39] Transcript PN203.
[40] Transcript PN274-275.
[41] Exhibit “A6”, para 12.
[42] Exhibit “A6”, para 13. Confirmed by Ms Docherty Transcript PN967-976.
[43] Transcript PN977.
[44] Exhibit “A6”, para 15.
[45] Transcript PN983.
[46] Exhibit “A6”, para 16. Confirmed by Ms Docherty Transcript PN985-987.
[47] Transcript PN988.
[48] Exhibit “A6”, para 16. Confirmed by Ms Docherty Transcript PN994.
[49] Exhibit “A6”, para 16.
[50] Transcript PN995.
[51] Exhibit “A6”, para 16.
[52] Exhibit “A6”, para 16. Confirmed by Ms Docherty Transcript PN998-999.
[53] Exhibit “A6”, para 17.
[54] Transcript PN1001.
[55] Transcript PN1002.
[56] Transcript PN104.
[57] Transcript PN105.
[58] Mr Trialonas gave evidence that his wife completed the form with information provided by Leanne Docherty.
[59] [2003] FCAFC 252.
[60] PR917597, 9 May 2002.
[61] Print 922380.
[62] Whose view Justice Wilcox said he preferred.
[63] [2013] FWCFB 9605.
[64] [2013] FWC 2813.
[65] [2013] FWCFB 9606.
[66] [2013] FCA 1385.
[67] [2015] FWC 1255.
[68] [2015] FWC 1255, [20].
[69] [2003] FCAFC 252, paras 38 and 76 per Marshall J.
[70] [2013] FWCFB 9605.
[71] Brian Henry & Others v FP Group Pty Ltd and Tooheys Pty Ltd[2013] FWC 2813.
[72] Paragraph 76 appears in the decision of Marshall J.
[73] Damevski v Guidice [2003] FCAFC 252, para 79.
[74] Accident Compensation Commission v Odco Pty Ltd (1990) 34 IR 297.
[75] (2001) 53 NSWLR 153, cited by Marshall J in Damevski at para 85.
[76] Transcript PN1089.
[77] Ibid.
[78] [2012] FWA 2566.
[79] [2009] AIRC 565.
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