Miriam Stewart v Carer Solutions Australia Pty Ltd

[2020] FWC 6551

[2020] FWC 6551

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miriam Stewart
v
Carer Solutions Australia Pty Ltd
(U2020/10513)

DEPUTY PRESIDENT CLANCY MELBOURNE, 4 DECEMBER 2020

Application for an unfair dismissal remedy – jurisdictional objection – whether Applicant was an employee of the named Respondent – s.586 application made in the alternative, to correct application and name new Respondent – Applicant not an employee of the named Respondent and s.586 application not granted.

[1] Ms Miriam Stewart (Ms Stewart) has made an application pursuant to s.394 of the Fair Work Act 2009 (Act) seeking an unfair dismissal remedy. She has named Carer Solutions Australia Pty Ltd (CSA) as the Respondent to her application.

[2] In the Form F3 – Employer response to unfair dismissal application (Form F3) it filed, CSA asserts that it neither employed nor dismissed Ms Stewart and has objected to the application on that basis.

Background

[3] CSA describes its business as the provision of payroll administration services to support the employment of support workers by families and individuals. CSA refers to such families and individuals as their partners. In this matter, Mr Ray Hollingworth and his wife, Mrs Annette Hollingworth, are the relevant partners of CSA.

[4] In broad terms, CSA’s operational context is as follows:

a) Its partners have allocated funding under the NDIS for various services;

b) The funding for the NDIS plan of the partners is paid to a financial intermediary;

c) In this case, the relevant financial intermediary is a registered charity called MOIRA, which provides amongst its services, financial plan management;

d) The financial plan management services offered by MOIRA (at no cost) are said to help NDIS recipients manage their NDIS expenses. The service offering of MOIRA is to co-ordinate claims and payments and take care of bills, thereby leaving the NDIS recipients to concentrate on achieving their goals under their NDIS plans;

e) Mr and Mrs Hollingworth provided their MOIRA funding details to CSA when they entered into a Partner Agreement with CSA on 14 July 2015;

f) When providing her support worker services to Mr and Mrs Hollingworth, Ms Stewart reported her hours to Mr Hollingworth who then completed timesheets and provided them to CSA;

g) CSA would then raise an invoice and send it to Mr and Mrs Hollingworth for approval;

h) The invoice total would include a component for the services that CSA provided to Mr and Mrs Hollingsworth;

i) Once approved by the Hollingworths, CSA paid Ms Stewart and the invoice would be sent to MOIRA;

j) MOIRA would pay CSA and the payment from MOIRA would meet the cost of Ms Stewart’s wages and include the component for the services CSA provided to Mr and Mrs Hollingsworth;

k) No component of either the NDIS funding or the payments (to either CSA or Ms Stewart) passed through the hands of Mr and Mrs Hollingsworth.

[5] The Partner Agreement CSA entered into with Mr and Mrs Hollingworth on 14 July 2015 is described as not creating a relationship of employment, partnership, agency or joint venture between either CSA and the Hollingworths or between CSA and any support worker the Hollingworths employed. The Partner Agreement includes the terms under which the Hollingworths agreed to operate as a partner of CSA, including:

•  Employing and/or appointing support workers appropriate to their needs;

•  Notifying CSA within seven days of the appointment of any new support worker;

•  Providing clear and concise instructions to support workers and CSA;

•  Providing appropriate training to support workers with regards to care and any aids or equipment the support worker may be required to use, co-ordinate or supervise;

•  Providing sufficient and appropriate resources to enable support workers to complete their required tasks;

•  Negotiating and maintaining fair and reasonable pay and entitlements;

•  Approving and providing CSA with support worker timesheets within the CSA provided timetable to allow timely payment for support worker services provided;

•  Advising CSA of the value of funding allocated to the services provided by CSA and any changes to the funding arrangements;

•  Not exceeding any allocated funding arrangements; and

•  Reimbursing CSA for any support worker time and associated costs incurred in excess of any allocated funding arrangements.

[6] The services to be provided by CSA under the Partner Agreement were outlined as follows:

•  Providing an administrative support function with respect to the employment of support workers;

•  Ensuring correct payroll calculations and payments based on the information provided on CSA timesheets by the Hollingworths;

•  Deducting appropriate taxes and pay related taxes, superannuation and insurances and forwarding such deductions to the appropriate bodies;

•  Providing information that may assist in the management, retention and compliance in respect of the employment of support workers.

[7] The Partner Agreement also stated that CSA was not responsible for the sourcing, recruitment, management or termination of the Hollingworths’ support workers and that the Hollingworths indemnified CSA in respect of any claims made by the support worker, in respect of the provision of their services.

[8] Ms Stewart says she responded to a newspaper job advertisement for the role of Carer in 2017 by telephoning the advertised phone number and speaking to Mr Hollingworth. Mr Hollingworth told Ms Stewart that there were already too many applicants for the role providing care to Mrs Hollingworth. Several months later however, Mr Hollingworth telephoned Ms Stewart to ask if she was still interested in the Carer role and he and Mrs Hollingworth subsequently interviewed Ms Stewart at their home. Shortly after that interview, Mr Hollingworth notified Ms Stewart that she had been successful in securing the role.

[9] Ms Stewart says she was then provided with a written contract of employment to sign and return. In the material before the Commission, there are two letters addressed to Ms Stewart with identical text. One is dated 10 November 2017 and signed by Mr Hollingworth. The other is dated 20 November 2017 and signed by Mrs Hollingworth. Both letters were signed and dated by Ms Stewart on 28 November 2020.

[10] The two letters are headed “Employment Agreement – Support Worker” and outlined that:

•  An offer of employment was made by the signatory to the letter on terms and conditions attached to it.

•  The terms and conditions were stated to form Ms Stewart’s employment agreement

•  Ms Stewart’s employment would also be governed by the National Employment Standards (NES) and the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award), but these did not form part of the employment agreement.

•  That the signatory partnered with CSA for the provision of payroll administration services to assist them to administer certain requirements associated with Ms Stewart’s employment.

•  That the arrangement with CSA was an administrative service only and Ms Stewart always remained an employee of the signatory, unless her employment terminated in accordance with the offer of employment.

•  To accept the offer of employment, Ms Stewart was to sign and return the original signed copy. It was further stated that if Ms Stewart did not return the letter, her acceptance of the offer of employment would be “understood” by her attending for work on or after that date.

[11] Both letters included a signed acknowledgement by Ms Stewart that she had read, understood and accepted the “offer of employment” on the attached terms and conditions. Ms Stewart stated that she signed and returned a copy of the letter to Mr Hollingworth but did not thereafter receive a copy of the contract for her records.

[12] The terms and conditions attached to each letter stated:

•  Mr Hollingworth and Mrs Hollingworth were the respective employers;

•  Ms Stewart was a casual employee in the position of Support Worker in the Home Care Employee Level 1 or 2 classification under the SCHADS Award;

•  The location of work was to be the residential address of the Hollingworths;

•  As a casual employee, Ms Stewart was engaged by the hour;

•  Ms Stewart would receive her pay every fortnight;

•  Superannuation would be paid to Ms Stewart into the complying superannuation fund chosen by her at the minimum rate required by law.

•  As a casual employee, Ms Stewart was not entitled to notice of termination but if her employment was terminated, there would be an attempt to provide her with at least one hour’s notice.

[13] A Partner and Support Worker Guide provides further information on the arrangements between CSA and its partners. Ms Stewart said she had a copy of this document when she signed the two letters headed “Employment Agreement – Support Worker”. The services to be provided by CSA “to support the employment of Support Workers by a partner” outlined in the Partner and Support Worker Guide include:

•  The payment of wages, superannuation and PAYG withholding;

•  The issuing of group certificates;

•  Payment of workers’ compensation insurance group policy premiums;

•  Payment of public holiday premiums;

•  Managing and claiming funding from an applicable funding body on behalf of the partner.

[14] Further, the Partner and Support Worker Guide included the following statements:

a) Under the heading Partners,it is outlined that:

•  CSA des not employer the support workers;

•  The partners employ the support workers and are responsible for sourcing, recruiting, employing, regulating, disciplining and/or terminating the employment of support workers;

•  CSA assists partners by performing various administrative duties associated with the employment of support workers.

b) Under the heading Support Workers,it is outlined that:

•  The employer of a support worker is the individual or family that employed them (referred to as partners);

•  CSA assists partners by performing various administrative duties associated with the employment of support workers, but was not the employer;

•  CSA is responsible for co-ordinating the pay of Support Workers at the direction of the Partners, ensuring that it remits the correct amount of income tax and superannuation;

•  A workers’ compensation policy is held by the Partner;

•  Support workers are required to produce to CSA certain documents to enable certain checks to be carried out on behalf of the Partners; and

•  the Partner will require support workers to complete timesheets at the end of each fortnight and submit them for approval, after which the payslips will be sent to CSA so it can co-ordinate the payments.

[15] While Ms Stewart stated she commenced her casual employment on 1 August 2017, I note that CSA has produced a payslip suggesting that it commenced on or about 4 December 2017. 1 This is consistent with the dates on the two letters headed “Employment Agreement – Support Worker” referred to in [9] above.

[16] Ms Stewart’s responsibilities in the position of Carer at the Hollingworths’ home, included:

a) providing general and personal care for the Hollingworths;

b) cleaning and upkeep of the house; and

c) cooking.

[17] Ms Stewart confirmed that there was no written agreement between her and CSA. She said that throughout the time she performed work for Mr and Mrs Hollingworth she only contacted CSA twice, the second time being on 22 July 2020. 2 Nonetheless, Ms Stewart stated that she understood herself to be employed by CSA because her contract and hours were provided to CSA and CSA paid her for her services. Ms Stewart stated that she reported her hours to Mr Hollingworth and he completed timesheets and provided them to CSA. She said that although she was confused when reading through the contract documentation and reading material, she got used to CSA being the employer because of the timesheets and payslips.3 Ms Stewart also gave evidence that based on her experience working for other agency employers, she assumed that CSA was her employer.4

[18] However, Ms Stewart also says that throughout her employment, she reported to Mr and Mrs Hollingworth, worked solely at their residential home and that her hours of work were set by them. Ms Stewart said that CSA was not involved in her recruitment process or the setting of her hours. 5 Ms Stewart also said she consistently worked five days each week, for a total of 32 hours per week, receiving approximately $1,300 to $1,700 per fortnight plus superannuation.

[19] Ms Jennifer Thomas, Customer Service Administrator for CSA, gave evidence that all the support workers were casual workers. She said they could raise issues with CSA relating to their payments and payslips, superannuation, ATO matters, PAYG and workers’ compensation. Ms Thomas said that when she was trained, she had been told to tell support workers, when responding to their queries, that CSA was not their employer.

[20] Ms Stewart says she took two days off work on 11 and 12 July 2020 due to experiencing symptoms of a cold. She says that Mrs Hollingworth telephoned her on 13 July 2020 and instructed her not to return to work but to undertake a COVID-19 test followed by 14 days of leave. Ms Stewart says she responded by informing Mrs Hollingworth that she had scheduled a COVID-19 test however it had been delayed due to the expiry of her Medicare card. Ms Stewart says that the exchange that followed involved Mrs Hollingworth insisting that she take 14 days off work and her replying that she could not afford to do this. She says the telephone conversation concluded with Mrs Hollingworth stating, “I’ve had enough of you”.

[21] Mrs Stewart says that after this telephone call, she had a text message exchange with Mrs Hollingworth, as follows:

a) at 10.08am Mrs Hollingworth texted to Ms Stewart, ‘Dont you dare talk to me forget your test your finished’;

b) at 10.51am Ms Stewart texted to Mrs Hollingworth, ‘No I remember how you pushed me having damn flu shots and threatening dismissal annette if I didn’t. I’m tired of you. Like I said I’ll do your damned virus check and then what next Annette’;

c) at 11.05am Mrs Hollingworth texted to Ms Stewart, ‘What then your finished we re sick of your silly ways u do nt get to talk to me like that youq very rude’;

d) at 11.06 Ms Stewart texted to Mrs Hollingworth, ‘I dont think so Annette. Your the rudest person I have ever met as a client’;

e) at 11.12am Mrs Hollingworth texted to Ms Stewart, ‘No u r i cant be bothered with all this so goodbye’;

f) at 11.12am Ms Stewart texted to Mrs Hollingworth, ‘Yes you’re wasting my time and energy’.

[22] Mrs Stewart says that on 14 July 2020 Mr Hollingworth telephoned her and informed her that because she did not get along well with his wife, he would need to let her go.

[23] Ms Thomas stated that she also spoke with Mr Hollingworth on 14 July 2020, when he telephoned her and told her that he and Mrs Hollingworth were no longer employing Ms Stewart.

[24] Ms Stewart says that she telephoned CSA on 22 July 2020 on a “generic contact number” and spoke with a female. She says that when she asked whether her employment had been terminated, the reply was “yes, you have been dismissed.” Ms Stewart claims that the lady with whom she spoke neither stated nor expressed in any way that Mr and Mrs Hollingworth were her employers. However, Ms Thomas stated that during their telephone conversation on 22 July 2020, Ms Stewart asked her whether Mr and Mrs Hollingworth were allowed to terminate her employment and she confirmed they were, telling Ms Stewart that they were her employers and she was a casual worker. 6

[25] Ms Stewart says that she had telephoned CSA on 22 July 2020 at the direction of Mr Andrew Jewell of McDonald Murholme in order to confirm with CSA that she had been dismissed. 7 This is despite only previously having called CSA once during the entire period of her work for the Hollingworths.8 Ms Stewart also said at the hearing that the Hollingworths had terminated her employment9 and that she did not have any doubt that Mr and Mrs Hollingworth could dismiss her.10

[26] The termination of Ms Stewart was not confirmed in writing by either Mr and Mrs Hollingworth or CSA.

[27] Ms Jane Morrell, the Director of CSA, gave evidence that in accordance with Partner Agreements, CSA manages the payroll on behalf of 500 partners as well as undertaking other administrative functions such as arranging police checks. She confirmed that, on behalf of the partners, CSA pays the support workers, remits PAYG tax and prepares payslips. Ms Morrell says payslips are emailed to the support workers on a fortnightly basis. She confirmed payslips were provided to Ms Stewart by CSA.

[28] Ms Morell said that the Australian Tax Office (ATO) forms and systems do not easily accommodate the CSA business model and when CSA first established its systems in 2019, it had the option of either:

1) registering every partner as an employer for PAYG purposes, which would require 500 separate statements each month and issuing payslips naming 500 different employers every fortnight; or

2) registering itself as the employer for tax purposes and issuing payslips in its own name.

[29] Ms Morell said CSA chose the latter option rather than assuming the administrative burden of the former and that this is the reason why CSA is listed as the employer on the Tax income statements. CSA states that its taxation advisors and external accountants have been in discussions with the ATO and are working to rectify this issue. Ms Morrell also gave evidence about dialogue CSA is having regarding the name of the employer with its workers’ compensation insurer.

[30] The payslips CSA issued to Ms Stewart and the other support workers originally referred to CSA as “Your employer’s Payroll Service Provider”. Ms Morell said that CSA’s payroll system has another (default) setting which produces payslips that record CSA as the employer and in December 2019, there was an IT issue which resulted in the default setting for the payslips of the support workers changing. This resulted in the support workers (including Ms Stewart) thereafter receiving payslips listing CSA as their employer. Ms Morell says this issue only became apparent to during her preparation of evidence for this matter. CSA submits that this was not an intentional decision and nor did it reflect any change to the Partner Agreement or CSA’s business model.

CSA Submissions

[31] The final submissions of CSA included:

a) There was an absence of a work wages bargain in this case between CSA and Ms Stewart;

b) There was no evidence that CSA entered into a written or oral agreement with Ms Stewart and all the conversations Ms Stewart had at the time of her engagement were with the Hollingworths;

c) Mr and Mrs Hollingsworth were the employers, having made the decision to employ Ms Stewart and having entered into signed written contracts with her;

d) Mr and Mrs Hollingworth exercised control throughout the employment, in terms of Ms Stewart’s duties and the manner in which she undertook them and her hours of work;

e) There was no capacity either contractually or in practical terms for CSA to instruct Ms Stewart to perform work. She reported to Mr and Mrs Hollingworth throughout her employment;

f) Mr and Mrs Hollingworth made the decision to dismiss Ms Stewart;

g) The fact that CSA made payments of wages, tax, superannuation, and workers’ compensation insurance are elements consistent with either party’s argument;

h) The documentation created by the parties is relevant but not determinative of the true character of the relationship; and

i) Ms Stewart’s stated belief that CSA was her employer should be given little weight because of her evidence that it had very little to do with her, the acknowledgement that it did not set her roster or assign her hours and the evidence that she had read the employment agreement and Partner and Support Worker Guide.

[32] CSA does not dispute that CSA is named as Ms Stewart’s employer on payslips and in Ms Stewart’s income statement. However, it submitted that the whole relationship between the parties must be considered to determine whether an employment relationship exists. CSA relies on several authorities it says have not taken the fact that a person named as the employer on a payslip as conclusive proof of the employment relationship.

[33] On the question of whether Ms Stewart had been dismissed within the meaning of s.386 of the Act, CSA submitted Ms Stewart was clear in her evidence that she was dismissed by the Hollingworths and that she understood herself to have been dismissed by them, and that there was no mention of CSA. Further, CSA submitted there was no evidence to suggest that it was consulted or that it approved the decision and nor was there evidence to suggest that the Hollingworths were employees of CSA or that they had any authority to bind CSA.

Ms Stewart’s submissions

[34] In written submissions dated 15 September 2020, it was submitted by Ms Stewart’s solicitors, McDonald Murholme, that during the period 1 August 2017 and 13 July 2020, Ms Stewart’s employment contract was novated from the Hollingworths to CSA. Further, and alternatively, it was submitted the employment contracts were assigned by the Hollingworths to CSA. At the hearing however, I was informed these arguments were not being pressed. 11

[35] The submissions at hearing advanced on behalf of Ms Stewart were:

a) This was a tripartite arrangement whereby CSA was the “off-site employer” and the Hollingworths were the point of contact regarding the hours worked, the duties performed, communication with Ms Stewart, such that it was unremarkable that the termination was communicated initially by the Hollingworths, who then communicated that decision to CSA;

b) Ms Stewart was an employee of CSA at the beginning, throughout the employment and when it ended;

c) CSA held itself out as the employer over an extended period of time in a number of contexts, having told the ATO, superannuation funds, WorkCover and workers’ compensation insurers that they were the employer and having communicated this to its employees through the payslips and PAYG statements;

d) CSA went beyond the role of payroll administrator because it was not merely doing the arithmetic and handling the logistics but was also putting its name on the documents as the employer and representing this to the various regulatory bodies;

e) CSA could have operated in the way that payroll administrators generally do by putting in place arrangements for the payslips to reflect the individual employers that it says are in place and it could have put in place arrangements with the ATO to make remittances to the tax office on behalf of each one of these employers but instead themselves assumed the role of employer;

f) The only indicator suggesting that Ms Stewart had a contract of employment with the Hollingworths was the written contract, but this was a self-serving document which CSA prepared, at odds with the true nature of the arrangement;

g) The written contract was in a form that was not fully completed and was largely immaterial to the actual functioning of the arrangement between the parties;

h) CSA was part of the arrangements when they were formalised;

i) That the ATO forms made it difficult to put in place the CSA arrangements is unremarkable, when one considers the representation being made by CSA was that although it was paying the wages, taking the tax out of the payments and handling all the administrative burdens that go with employing people, it was not actually the employer;

j) The Hollingworths had ostensible authority, acting as agents for CSA, to dismiss Ms Stewart because while they were not holding themselves out as employees or officers of CSA, they were holding themselves out as representing CSA in being the recipients of the timesheets and facilitating the making of payments by CSA;

k) The employment relationship was brought to an end on 13 July 2020 through the usual channels of the employment relationship and that it was confirmed on 22 July 2020 by CSA served to confirm that CSA, as Ms Stewart’s employer, was of a like mind;

l) This is not an employer/employee relationship in any meaningful or traditional sense because the Hollingworths were not paying Ms Stewart and were using a model that a corporate entity has set up where they were represented as being the employer but have few of the obligations that normally rest upon an employer's shoulders; and

m) That those obligations were assumed by CSA demands that the Commission follow the nature of the arrangement and find that the risk of an unfair dismissal application being brought ought to be left with CSA.

Legislative Framework

[36] For present purposes, the statutory framework for unfair dismissal applications is as follows:

a) Part 3-2 of the Act sets out the scheme pursuant to which persons may in prescribed circumstances apply for and obtain an unfair dismissal remedy.

b) Section 390(1)(a) of the Act provides that the Commission must be satisfied that a person was “protected from unfair dismissal” at the time of being dismissed before it may make an order in the person’s favour for an unfair dismissal remedy.

c) Section 382 defines when a person is “protected from unfair dismissal” and the definition includes a requirement that the person be “an employee”. 12

d) For the purposes of s.382, it is outlined in s.380 of the Act that “Employee” means a “a national system employee”.

e) Section 13 defines, for present purposes, “a national system employee” as “…an individual so far as he or she is employed, or usually employed … by a national system employer…”.

f) “National system employer” is defined in s.14 of the Act.

g) However, as Victoria is a referring State within the meaning of s.30B of the Act, the extended meaning of “national system employee” in s.30C of the Act applies.

h) Therefore, subject to some limited exceptions that are not presently relevant, any “employee” in Victoria, whether or not employed by a “national system employer”, falls within the provisions of Part 3-2 of the Act.

[37] I am required to determine whether Ms Stewart is an employee of CSA in order to be satisfied, in the context of her application before the Commission, that she is a person who is protected from unfair dismissal under the Act.

[38] I do not consider Ms Stewart was an employee of CSA because of the lack of a ‘wages-work’ bargain between them. As was stated by Deputy President Gostencnik in Kaseris v Rasier Pacific V.O.F: 13

“For there to exist an employment relationship, certain fundamental elements must be present. A contract of employment is, at its essence, a work-wages bargain, so that the “irreducible minimum of mutual obligation” necessary to create such a contract is an obligation on the one side to perform the work or services that may reasonably be demanded under the contract, and on the other side to pay for such work or services.” 14 (references omitted)

[39] As outlined above, Ms Stewart was interviewed and hired by Mr and Mrs Hollingworth and entered into written employment agreements with them. The Hollingworths, not CSA, exercised control over the place and hours of Ms Stewart’s work and duties Ms Stewart was to perform. The terms of the Partner and Support Worker Guide, acopy of which was held byMs Stewart when she signed the two employment agreements, is replete with references to the status of the relationship between Ms Stewart and the Hollingworths being one of employment and the role and status of CSA as a provider of services. Ultimately, Ms Stewart’s employment was terminated by the Hollingworths on either 13 or 14 July 2020. Having regard to the totality of the evidence, Ms Stewart was plainly not terminated by CSA.

[40] Ms Stewart did not perform any work or provide any services for the benefit of CSA and when performing her work for the Hollingworths, she was not fulfilling any contractual obligation owed to CSA. Indeed, there is no evidence of any contract between Ms Stewart and CSA, let alone an employment contract. The funds for the payments made by CSA to Ms Stewart were drawn from the funding for the Hollingworths’ NDIS plans held by MOIRA. For its part, CSA did not owe Ms Stewart any legal obligations. It was its Partner Agreement with the Hollingworths that required it to correctly pay Ms Stewart, deduct taxes and pay related taxes, superannuation and insurances.

[41] I have no cause to question the evidence of Ms Morrell in relation to the reasons for CSA’s representations to the ATO and in relation to workers’ compensation insurance. She was open and frank. Further, I accept her explanation in relation to the change in the description of the employer on Ms Stewart’s payslips. Ultimately, I do not consider these factors alter the relationship that existed between Ms Stewart and the Hollingworths. In considering whether an employment relationship existed in Gupta v Partier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats, 15 Justice Ross and Vice President Hatcher outlined the following:

“In ACE Insurance Limited v Trifunovski, Buchanan J (with whom Lander and Robertson JJ agreed) said that “the nature of the relationship may be legitimately examined by reference to the actual way in which work was carried out”. In Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd, North and Bromberg JJ (with whom Barker J relevantly agreed) said that: “...appellate courts in Australia and the United Kingdom have been particularly alert, when determining whether a relationship is one of employment, to ensure that form and presentation do not distract the court from identifying the substance of what has been truly agreed. It has been repeatedly emphasised that courts should focus on the real substance, practical reality or true nature of the relationship in question...”. And in WorkPac Pty Ltd v Skene the Full Court said “The conduct of the parties to the employment relationship and the real substance, practical reality and true nature of that relationship will need to be assessed.” 16 (references omitted)

[42] Having regard to the conduct of the various parties and the real substance, practical reality and true nature of their relationships, I am satisfied there was no ‘wages-work’ bargain between Ms Stewart and CSA. Moreover, there was no contract between them. The lack of an employment relationship between them means that Ms Stewart was not an employee and thus not a person protected from unfair dismissal within the meaning of Part 3-2 of the Act in making her application against CSA for unfair dismissal.

Section 586 submission

[43] At the hearing, Counsel for Ms Stewart stated that in the event of a finding that CSA was not the employer, Ms Stewart would seek to pursue an application under s.586 to correct her application and substitute Mr and Mrs Hollingworth as the employer. 17 This application had not been flagged before the day of the hearing despite the prior opportunities available to Ms Stewart’s lawyers.

[44] In support of the s.586 application, Ms Stewart submits she has sought to agitate the termination of her employment and has acted on the assumption that the party making the payments to her was her employer. She submits she has acted on that basis because she had received payslips that have said CSA was the employer and she did not have a copy of her contract. Ms Stewart submits there was no basis, when she decided she wanted to contest the dismissal, to do anything other than what she has done.

[45] As Ms Stewart’s employment has been terminated and she has sought to agitate her dismissal, she submits it would be appropriate to now allow her the opportunity to amend the name of the employer should it be found that she has named the wrong employer. She submits that on the information available to her, she did not have anything that would indicate that she should be naming the Hollingworths as the employer. Ms Stewart says she had instead payslips, PAYG statements and superannuation information indicating that the employment relationship was with CSA. Ms Stewart submits that if it is ultimately found that she has named the wrong party, it was an understandable mistake for her to have made and she ought to be given the opportunity to amend that application rather than being forced to bring a new application and fight an out of time application that would no doubt have to be brought.

[46] It has been established that the Commission has jurisdiction to amend the name of a respondent to an unfair dismissal application pursuant to s.586 Act. 18 The power is discretionary. The Full Bench in Djula v Centurion Transport Co.Pty Ltd (Djula) held thatan applicant for such an amendment will need to call evidence sufficient to persuade the Commission that it clearly weighs in favour of the grant of the amendment sought. 19

[47] Ms Stewart relies on the decision in De Silva-McKay v EQ Life Pty Ltd (De Silva-McKay). 20 In that case, the respondent’s jurisdictional objection was upheld but Senior Deputy President Watson decided to provide the applicant with an opportunity to make application to amend the name of the respondent. The factual scenario in that case included the transfer of the applicant’s employment between two entities approximately three months prior to her ultimate termination. The Senior Deputy President took into account the following circumstances:

•  The work was substantially the same for each employer and was directed to the same end;

•  The applicant worked for each employer subject to the direction of the same person and with the same employees;

•  The termination of the employment with the first entity came about informally, was not documented and inconsistent with the contractual entitlement to written notice;

•  The letter terminating the employment with the second entity dealt with the applicant’s employment with both entities.

[48] The Senior Deputy President was satisfied in those circumstances thatthe belief held by the applicant as to her employer at the date of termination was genuinely held and, although wrong, reasonably held.

[49] The Senior Deputy President also noted the applicant had applied for relief and considered her confusion as to the identity of her employer at the time of making her application for relief was reasonable and found both of these factors supported an amendment to the application.

[50] The Senior Deputy President also took into account the commercial relationship between the two entities and the second entity’s awareness of the application for relief. He formed the view that there was nothing to suggest that the substantive application, when directed to the second entity, was so lacking in merit as to constitute a basis for declining to exercise the discretion to amend the application.

[51] Djula involved an unfair dismissal application filed naming an entity called Centurion Transport Co. Pty Ltd (Centurion) as the respondent. The Form F3 filed in response also named Centurion as the respondent. Five days later however, a solicitor came on the record as acting for Centurion and wrote to the applicant’s representative and the Commission advising that Centurion was not the respondent and that the employer at the time of the dismissal was another entity called “CFC Consolidated Pty Ltd as trustee for CFC Employment Trust” (CFC Consolidated). The solicitor also filed an application seeking the dismissal of the unfair dismissal application. The applicant responded by making a s.586 application six days later.

[52] Centurion had been the applicant’s employer at the commencement of the employment. In the lead-up to the dismissal the applicant was provided with documents referring to Centurion, CFC Group and Contura Mining Pty Ltd (the “Ultimate Holding Company” of Centurion). Only the separation certificate stated that CFC Consolidated was the applicant’s employer. ASIC records showed that Centurion and CFC Consolidated had a common director, the same registered address and the same principal place of business, even though the two entities had separate management and operational structures.

[53] In determining that these facts weighed “heavily” in favour of the application pursuant to s.586 being granted, the Full Bench in Djula stated:

“…we emphasise that it was the peculiar facts in this case which, in our opinion, justified the grant of the application to amend the name of the respondent. The facts in other matters may not be comparable. In such a case the correct ruling may be to refuse an amendment to the name of a respondent.” 21

[54] Turning then to the chronology of events in the matter before me:

a) Ms Stewart’s employment was terminated by the Hollingworths on either 13 or 14 July 2020.

b) Between that time and 22 July 2020, it is evident Ms Stewart consulted Mr Andrew Jewell, then a lawyer employed by McDonald Murholme. Her evidence was that she called CSA on 22 July 2020 at Mr Jewell’s direction, in order to confirm she had been dismissed.

c) Mr Jewell is the nominated contact on Ms Stewart’s Form F2 -Unfair Dismissal Application. It is reasonable to infer that he oversaw its completion. In this document, it is alleged that CSA was the Respondent and that Ms Stewart was both notified of her dismissal and it took effect on 13 July 2020. An attachment to the Form F2 alleges Ms Stewart was employed by CSA, that Mr Hollingworth dismissed her on 13 July 2020 and that Ms Stewart called CSA that same day to confirm whether her employment had been terminated.

d) CSA filed and served its Form F3 on 20 August 2020 with an accompanying email stating the Form F3 had been “modified to reflect the fact that the respondent is not the applicant’s employer” and “Given that our client is not properly a party to this proceeding, we invite the applicant to discontinue.” Further, the Form F3 stated that CSA neither employed nor dismissed Ms Stewart and had never employed her. The two written employment agreements between Ms Stewart and the Hollingworths were attached to the Form F3.

e) On 21 August 2020, CSA, through its lawyers, advised Mr Jewell it did not intend to participate in conciliation on the basis it had “no role” in the dispute.

f) Upon allocation to me, I issued directions that required Ms Stewart to file and serve her material in relation to CSA’s jurisdictional objection by 3.00pm on 11 September 2020.

g) When this did not occur, the matter was listed for a non-compliance hearing at which Mr Alan McDonald of McDonald Murholme appeared. Mr McDonald sought an extension of time on the basis that Ms Stewart would be alleging there had been either a Novation and/or Assignment of Ms Stewart’s employment contract from Mr and Mrs Hollingworth to CSA. I granted the requested extension and this allegation of Ms Stewart was confirmed in written submissions subsequently filed on 15 September 2020.

h) CSA filed written submissions in response and Mr McDonald sought an adjournment of the original 18 September 2020 hearing date in order to be given an opportunity to respond.

i) I granted an adjournment to 22 September 2020 but as I outlined above, the submissions that there had been either a Novation and/or Assignment of Ms Stewart’s employment contract from Mr and Mrs Hollingworth to CSA were not ultimately pressed at the hearing.

j) During the hearing, a further position was put asserting that Mr and Mrs Hollingworth were acting as agents for CSA.

k) In final submissions, the s.586 application was made.

[55] It is therefore evident that this is not a case like Djula, where the applicant made the s.586 application almost immediately upon learning that the respondent it had named had raised an objection. In this case, Ms Stewart was on notice as to CSA’s jurisdictional objection from the outset. CSA’s opposition could not have been more explicit.

[56] This matter bears resemblance to the scenario in De Silva-McKay in that Ms Stewart first moved to advance the s.586 application at a late stage, as a final alternative oral submission during the jurisdictional hearing. From there, the two matters diverge.

[57] In both Djula and De Silva-McKay, the applicants relied on having been confused. In Djula, the Full Bench noted the range of documents naming different corporate entities leading up to the dismissal. In De Silva-McKay, the applicant asserted that her confusion was based on there having been no obvious indicators of a change of employer. However, Ms Stewart’s case has never been based on her having been confused. Ms Stewart has been adamant that CSA was her employer from the outset and has based her defence to the jurisdictional objection on the payslips, timesheets and PAYG statements, notwithstanding:

•  the explicit text of both the written employment agreements and the Partner and Support Worker Guide was clear (noting that Ms Stewart says she had returned these documents at the commencement of her employment);

•  the absence of any evidence of a contract between Ms Stewart and CSA;

•  the fact Ms Stewart had virtually no contact with CSA during the period she performed work for the Hollingworths; and

•  it was the Hollingworths, and not CSA, who exercised control over the place and hours of her work and the duties she was to perform at all times.

[58] As to the relationship between CSA and the Hollingworths, I do not consider it to be analogous with either the relationship between Centurion and CFC Consolidated in Djula or the relationship between the first and second entities in De Silva-McKay. CSA and the Hollingworths are not entities within the same corporate structure, nor was there a take over or assumption of control by one, of the other’s business. Further, as I have earlier concluded, this is not a case where one became the new employer of the other’s employee.

[59] Finally, as to whether the merits of an unfair dismissal application Ms Stewart might make against the Hollingworths, it is difficult to make an assessment based on the limited material before me as to whether the merits weigh for or against exercising the s.586 discretion in any material respect.

[60] Having considered the circumstances of this case, I am not persuaded that they clearly weigh in favour of the making the correction sought pursuant to s.586 of the Act. This case is distinguishable from Djula and De Silva-McKay because Ms Stewart has not claimed she was confused as to the identity of her employer when commencing or pursuing her application. Indeed, having had the opportunity to take advice from her lawyers, Ms Stewart made the conscious decision to bring her application against CSA and neither Ms Stewart nor her legal advisers have been dissuaded by the opposition CSA has demonstrated throughout the proceeding and the material it has filed. Further, on several occasions Ms Stewart has reframed her basis for arguing that CSA was her employer.

[61] Having made the s.586 application at the latest possible stage and then, having only advanced it in the alternative, Ms Stewart is seeking to have a bet each way. In all the circumstances, I am not persuaded I should exercise the s.586 discretion.

[62] As I am not persuaded to grant the s.586 application and have concluded that Ms Stewart was not an employee of CSA and therefore is not a person protected from unfair dismissal within the meaning of Part 3-2 of the Act, her unfair dismissal application must be dismissed.

[63] An order to this effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

R Millar of Counsel on behalf of Ms Miriam Stewart.
A Massaro for Carer Solutions Australia Pty Ltd.

Hearing details:

2020.
Melbourne (via Microsoft Teams):
September 22.

Printed by authority of the Commonwealth Government Printer

<PR725181>

 1   DCB at 104.

 2   Transcript PN 397 and 430.

 3   Transcript PN 431 and 432.

 4   Transcript PN434-435.

 5   Transcript PN 446 – 448.

 6   Transcript PN 282.

 7   Transcript PN 399.

 8   Transcript PN 396-397.

 9   Transcript PN 363.

 10   Transcript PN 398-400.

 11   Transcript PN 528 and PN 600.

 12   Fair Work Act 2009, s.382(a).

 13   [2017] FWC 6610.

 14 Ibid at [48].

 15   [2020] FWCFB 1698

 16 Ibid at [40].

 17   Transcript PN644-645.

 18   Djula v Centurion Transport Co.Pty Ltd [2015] FWCFB 2371; Creative Every Day Pty Ltd t/as Sameway Magazine v Yin Fun Leung [2019] FWCFB 5416 at [16].

 19   [2015] FWCFB 2371 at [31].

 20   [2013] FWC 9203.

 21   [2015] FWCFB 2371 at [34].