Miss Shu Chao v John Falcone and Son Pty Ltd T/A Stockdale and Leggo St Albans

[2010] FWA 4627

[2010] FWA 4627

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.643 - Application for relief re (Unlawful) termination of employment

Miss Shu Chao
v
John Falcone & Son Pty Ltd T/A Stockdale & Leggo St Albans
(U2009/10038)

COMMISSIONER CRIBB MELBOURNE, 25 JUNE 2010

Termination of employment – jurisdiction – casual employee – s.661 ground dismissed.

[1] This decision concerns an application lodged by Ms Shu Chuan Chao (the applicant) in relation to the termination of her employment by John Falcone and Son Pty Ltd t/a Stockdale & Leggo St Albans (the respondent).

[2] The grounds on which the application was made were that the termination of her employment was harsh, unjust or unreasonable (s.643(1)(a) of the Workplace Relations Act 1996 (the Act), that it was unlawful on the basis of temporary absence from work due to illness (s.659(2)(a) and that it was in breach of s.661 as there had been a failure to give notice of termination.

[3] On 4 August 2009 the respondent lodged a jurisdictional objection on the basis that it employed 100 or fewer employees. The applicant subsequently withdrew the unfair ground of her application.

[4] The applicant decided that she would continue to pursue her application on the other two grounds, namely, that the dismissal was unlawful (s.659(2)(a)) and that there had been a breach of s.661 – failure to give notice of termination.

[5] The respondent also objected to the application on the basis that the applicant was a casual employee and therefore excluded from making an application by virtue of s.638 of the Act. This objection does not apply to the unlawful ground of the application but it does apply to the ground of an alleged breach of s.661.

[6] Accordingly, the Tribunal is required to deal with the respondent’s remaining jurisdictional objection – that Ms Chao was a casual employee.

[7] The Act does not require the Tribunal to hold a hearing to determine the objection. Both parties were, therefore, invited to provide written submissions.

[8] The respondent provided written submissions on 2 November 2009 and submissions in reply on 11 December 2009. The applicant filed written submissions on 26 November 2009.

[9] This decision deals with the jurisdictional objection raised by the respondent, that the applicant was a casual employee and thereby excluded from making an application to the extent it is based on breach of s.661.

[10] The applicant represented herself whilst the respondent was represented by Ms K McLouta, solicitor.

SUBMISSIONS

Respondent

[11] The respondent’s submissions were made by way of a statutory declaration 1 and submissions in reply2 from Mr John Falcone, Director of John Falcone & Son Pty Ltd t/s Stockdale & Leggo, St Albans.

[12] Mr Falcone’s evidence was that:

• Ms Chao was employed on 2 February 2009 on a casual basis and for the specific purpose of liaising with Chinese clients. 3



• Ms Chao was dismissed on 15 June 2009 and was provided with a letter of dismissal dated 15 June 2009. 4

Various documents were submitted in support of the contention that the applicant was employed as a casual:

• Notice of Employment – completed by Mr Falcone, dated 2 February 2009, stating that Ms Chao was employed on a casual basis. 5

Three payslips indicating payment of commission. 6

Membership application for REI Super, completed on 7 July 2009 by the applicant. Ms Chao ticked the box saying “I do not have an ongoing contract of employment. I am engaged as required/as temporary staff/casual”. 7

Tax File Number Declaration – signed by Ms Chao on 9 June 2009 with the casual employment box crossed. 8

[13] In his statement in reply, Mr Falcone stated the original Notice of Employment was amended to indicate that Ms Chao was employed on a casual basis. 9 He explained that the Notice of Employment was amended following a discussion with Ms Chao on 2 February 2009. During the discussion, Mr Falcone recalled that, it had been agreed, at Ms Chao’s request, that she work on a casual basis and be paid commission only. He indicated that he was unsure whether the amended Notice of Employment was sent to the Business Licensing Authority by his secretarial staff.10

[14] Mr Falcone agreed with Ms Chao’s contention that she had been given a key to the office and could access the office at any time. He indicated that, although she was entitled to come and go from the office, Ms Chao elected to work from home on an irregular basis. 11

[15] It was stated by Mr Falcone that Ms Chao was not paid regular wages as it had been agreed that she would be paid on a commission basis. 12 Further, he disagreed that the applicant had attended the weekly meetings. Mr Falcone stated that casual employees attended such meetings on a voluntary basis only.13

Applicant

[16] Ms Chao provided a detailed response to the respondent’s submissions together with extensive documentation. 14 She argued that she was a full time employee of the respondent.15 It was stated by Ms Chao that, on the day she commenced with the respondent (2 February 2009) she was given a copy of a Notice of Employment which was sent by her employer to the Business Licensing Authority. Ms Chao said that it had been signed by Mr Falcone and that the “Full time” box had been ticked.16

[17] In order to verify which of the two Notices of Employment was the “real” one, Ms Chao provided a Certificate from the Registrar of the Business Licensing Authority stating that the information held on the Register of Estate Agents stated that Ms Chao had been employed with the respondent from 2 February 2009 to 15 June 2009 on a full time basis. 17

Attached to Ms Chao’s submissions was a copy of a Notice of Employment, dated 2 February 2009, with the “Full time” box ticked. 18

[18] Ms Chao stated that, two days after she commenced, she was given a key to the St Albans’ office. She argued that, if she had been a casual employee she would only have been called on when she was needed. 19

[19] It was contended by Ms Chao that she had worked passionately and in the best interests of the respondent. However, Ms Chao alleged that she had been bullied by a Manager of the respondent who saw her as a threat. The applicant stated that this Manager had taken various steps to prevent her making sales and had made racist remarks. Ms Chao recounted an incident in February 2009 when she lost her temper with this Manager. 20 She indicated that she had achieved a lot during her employment despite the Manager’s actions in not providing her with business cards, not being allowed to use the office computer and her name not being in the company’s advertisements in the newspapers and on the internet.21

[20] Further, it was submitted by Ms Chao that she had attended all of the Sunshine branch office weekly meetings except for the last one (12 June 2009). She said that she regularly prepared for open inspections, took names and talked to clients. 22 In addition, it was stated that she had done letterbox drops to get listings or to promote properties.23

CONCLUSIONS

[21] Section 638 of the Act states:

“638 Exclusions

Exclusions from Subdivisions B, D and E and sections 660 and 661

(1) The following kinds of employee are excluded from the operation of Subdivisions B, D and E and sections 660 and 661:

….

(4) For the purpose of paragraph (1)(d), a casual employee is taken to be engaged for a short period unless:

(a) subject to subsection (5)—the employee is engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months; and

(b) the employee has, or but for a decision by the employer to terminate the employee’s employment, would have had, a reasonable expectation of continuing employment by the employer.

(5) If:

(a) a casual employee was engaged by a particular employer on a regular and systematic basis for a sequence of periods during a period (the first period of employment) of less than 12 months; and

(b) at the end of the first period of employment, the casual employee ceased, on the employer’s initiative, to be so engaged by the employer; and

(c) the employer subsequently again engages the employee on a regular and systematic basis for a further sequence of periods during a period (the second period of employment) that starts not more than 3 months after the end of the first period of employment; and

(d) the total length of the first period of employment and the second period of employment is at least 12 months;

paragraph (4)(a) is taken to be satisfied in relation to the employment of the employee.”

[22] There was no dispute between the parties that Ms Chao commenced employment on 2 February 2009 and that she was dismissed on 15 June 2009.

[23] The issue between the parties is whether Ms Chao was employed with the respondent as a full time employee or on a casual basis. The respondent submitted that, initially, the applicant was offered full time employment but, at the applicant’s request, this was changed to casual employment with commission only to be paid. The applicant contended that she had been employed as a full time employee but she did not offer an explanation as to why there are two Notices of Employment.

[24] It would be useful, at this stage, to set out the documentation that the parties relied on to support their respective submissions.

[25] The Tribunal has before it:

• A Notice of Employment, dated 2 February 2009, indicating that the applicant was employed on a casual basis (provided by the respondent). 24

A Notice of Employment, dated 2 February 2009, indicating that the applicant was employed on a full time basis (provided by the applicant). 25

A Certificate by the Registrar, Business Licensing Authority, certifying that the Register of Estate Agents states that Ms Chao was employed by the respondent on a full time basis between 2 February 2009 and 15 June 2009. 26

REI Superannuation Fund Membership application form, signed by the applicant and respondent on 7 July 2009, with the “casual” box crossed. 27

Superannuation Guarantee Contribution Report showing that the respondent contributed $294.57 on the applicant’s behalf into the REI Superannuation Fund. 28

• Tax File Number Declaration form dated 9 June 2009 with the “casual employment” box ticked. 29

Payslips for pay periods ending 12 June 2009, 18 June 2009 and 25 June 2009 indicating payment of commission for each of those periods. 30

Extract from ledger showing the commission payments as “wages”. 31

Extract from ledger recording each of the three payments as “commission”. 32

[26] Two Notices of Employment have been provided by the parties – one indicating that the employment was full time and the other- casual. Both notices have the same date – 2 February 2009. The Registrar’s Certificate indicates that the Register of Estate Agents shows that the applicant was employed full time with the respondent.

[27] With respect to the payments made to Ms Chao, the documentation shows that the payslips recorded the payments as commission and there is a ledger extract supporting this. On the other hand, there is also a ledger extract recording the payments as wages.

[28] Further, the Tax File Number declaration form, in part completed by the applicant, which was signed six days before her dismissal, states casual employment. The applicant’s REI Superannuation Fund application form, completed approximately three weeks after the applicant’s dismissal, records her employment as casual. The applicant stated that she had complied with Mr Falcone’s dictation in completing the form. This was denied by Mr Falcone.

[29] In reaching a conclusion in this matter, the Tribunal is required to take into account all of the material before it.

[30] In reconciling the existence of two signed Notices of Employment, the Registrar’s Certificate is not disputed. It certifies, on the one hand, that the Register of Estate Agents records the applicant as being employed full time by the respondent. This confirms that the “full time” Notice of Employment was lodged with the Business Licensing Authority.

[31] On the other hand, the respondent provided the only explanation as to why there are two Notices of Employment. In his Submissions in Reply, he explained the reason for the second Notice of Employment and also that part of the agreement with the applicant regarding her employment status was that she would be paid commission only. 33 He stated that a Notice of Employment, registering the applicant as a full time employee, was lodged with the Business Licensing Authority on 2 February 2009. When he gave Ms Chao a copy of the Notice on the afternoon of 2 February 2009, it was his recollection that the applicant said that she did not want to work full time.34 Mr Falcone stated that it was agreed that she would work on a casual basis and be paid commission only.35 He also said that he was unsure whether the amended (second) Notice of Employment had been forwarded to the Business Licensing Authority.

[32] The payslips and ledger extracts indicate that the applicant was only paid commission relating to the sale of specific properties and thereby appear to corroborate at least part of the conversation between the applicant and Mr Falcone on the afternoon of 2 February 2009.

[33] Further, the applicant’s Tax File Number Declaration form shows that she crossed the “casual” box. Ms Chao signed the form on 9 June 2009, six days before she was dismissed. In addition, the applicant ticked the temporary/casual box on her membership application for the REI Superannuation Fund. It is noted that Ms Chao had said that, in doing so, she complied with Mr Falcone’s dictation.

[34] Putting all of this together and on the basis of all of the material before me, on balance, I have concluded that it was most likely that, at the end of the day, the applicant was employed as a casual employee.

[35] In reaching this conclusion, it is acknowledged that Ms Chao firmly believes she was employed by the respondent on a full time basis.

[36] It was agreed between the parties that the applicant was employed by the respondent between 2 February 2009 and 15 June 2009.

[37] Consequently, I find that Ms Chao was employed as a casual employee and that the period of her employment was less than 12 months.

[38] Therefore, Ms Chao is excluded from being able to make an application on the ground of an alleged contravention of s.661 as she was a casual employee employed for less than 12 months. Accordingly, that ground of the applicant’s application is dismissed. An order to that effect will be issued separately.

[39] The remaining ground of Ms Chao’s application is that the termination of her employment was allegedly unlawful pursuant to s.659(2)(a). Conciliation with respect to all of the applicant’s grounds took place on 16 September 2009 but was unsuccessful. A Certificate under s.650 of the Act was not issued at the time, pending determination of the respondent’s outstanding jurisdictional objection. A certificate will now be issued.

COMMISSIONER

 1   Statutory Declaration of Mr John Falcone, dated 27 October 2009

 2   Submissions in Reply by Mr John Falcone, dated 10 December 2009

 3   Statutory Declaration of Mr John Falcone, dated 27 October 2009 at paragraph 3

 4   Ibid at paragraph 5

 5   Ibid at Attachment A

 6   Ibid at Attachments

 7   Ibid

 8   Ibid

 9   Submissions in Reply by Mr John Falcone, dated 10 December 2009 at paragraph 1

 10   Ibid

 11   Ibid at paragraph 2

 12   ibid

 13   Ibid at paragraph 5

 14   Submissions of the applicant with 23 Attachments, dated 26 November 2009

 15   Ibid at paragraph 5

 16   Ibid at paragraph 1

 17   Ibid

 18   Ibid at Attachment 2

 19   Ibid at paragraph 2

 20   Ibid at paragraph 4

 21   ibid

 22   Ibid at paragraph 5

 23   Ibid at paragraph 6

 24   Statutory Declaration of Mr John Falcone, dated 27 October 2009 at Attachment A

 25   Submissions of the applicant, dated 26 November 2009 at Attachment 22

 26   Ibid at Attachment 2

 27   Statutory Declaration of Mr John Falcone, dated 27 October 2009 at Attachments

 28   ibid

 29   ibid

 30   Ibid

 31   ibid

 32   ibid

 33   ibid

 34   Submissions in Reply by Mr John Falcone, dated 10 December 2009 at paragraph 1

 35   ibid

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