Mr Albert Doe-Nunneh v Security International Services Pty Ltd

[2014] FWC 5284

[2014] FWC 5284

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Albert Doe-Nunneh
v
Security International Services Pty Ltd
(U2014/4834)

COMMISSIONER SIMPSON BRISBANE, 15 AUGUST 2014

Application for relief from unfair dismissal - Applicant not an employee of Respondent - not dismissed by Respondent - No jurisdiction - Application dismissed.

[1] The following Decision, now edited, was issued during proceedings on 8 August 2014.

[2] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Mr Albert Doe-Nunneh (“the Applicant”) who alleges that the termination of his employment with Security International Services Pty Ltd (“the Respondent”) was unfair in accordance with the definition contained within s 385 of the Act. The application was filed on the 20 February 2014 and conciliation was conducted which was not successful.

[3] The Respondent’s Form 3 employer response has raised two jurisdictional issues. One going to the fact that Mr Doe-Nunneh was never an employee of the Respondent and secondly, that the Applicant was never dismissed. I’m dealing with the first of those. The Directions conference that we held back in late June set directions for the filing of material. Both parties have filed material to assist me today.

[4] The matter was made difficult today on the basis that there has been a paucity of clear evidence for me to be able to rely upon. The Applicant has been unable to produce specific evidence of any pay records indicating he was employed by the Respondent, or group certificates or bank records. The only pay records that have been produced by Mr Doe-Nunneh were for employment with other security employers.

[5] It appears to be, from the evidence that those particular security employers that Mr Doe-Nunneh has produced evidence that he was employed by on the basis of PAYG pay summaries were in fact, according to Mr Lind (who has given evidence for the Respondent and made submissions) are entities that perform contract work for the Respondent.

[6] Mr Lind has said today he is a Manager for the Respondent, based in New South Wales, and has given evidence on oath today that the Respondent simply does not engage as employees any security guards directly in Queensland. Mr Lind has said the Respondent only engages as employees Managers and Supervisors that oversee project work presumably for tenders that have been won by the Respondent to perform security services on a contract basis and that when it does that work in Queensland, those Managers and Supervisors oversee contract security services provided by security officers on a contract basis for people engaged by other security companies.

[7] The evidence that I have had, albeit it’s limited, particularly that of Mr Lind who has given evidence on oath today about those things, would appear, on balance, more to support a view that the Respondents’ claim is more likely to be correct. That view is that the Applicant was engaged at the time of his claimed dismissal in February 2014 by a contract employer other than the Respondent. The fact that Mr Lind has also said on oath that the Respondent holds or keeps no time and wages records for any security guards in Queensland, for the very reason that he said they don’t employ any, is persuasive of the fact that the Applicant was not employed by the Respondent. Mr Lind has said that that is the case simply because the respondent doesn’t employ any security guards in Queensland.

[8] The whole situation is, no doubt, very frustrating for you, Mr Doe-Nunneh, in that it’s clear to me that you have made efforts to try and discover or get hold of evidence to find out precisely what your pay records were for that period of employment that you haven’t been able to get those records for. You clearly believe the Respondent has been your employer and was your employer at the relevant time. It’s clear to me that you feel that you’re being frustrated or prevented from being able to find out the true position because you haven’t been able to get those pay records despite requesting them. Further that you’ve said that you have some concerns that someone might have actually hacked into your phone and removed records. I don’t have any evidence about that before me but you’ve certainly made the claim, and so it’s apparent to me that this whole situation is very frustrating for you.

[9] I note you made a request today that you be given an opportunity to call another person to give evidence in this matter, Ms Marilyn Wilmot, who it seems clear, from what both of you have said, was employed at the Gateway Training Academy to provide training services and, I think, job placement services in the industry. I declined that request. I made a ruling earlier today to decline that request for the reasons that I gave today. It would seem, in any event, that Ms Wilmot wasn’t an employee of the Respondent. Mr Lind gave evidence she didn’t have any authority to make representations on behalf of the Respondent.

[10] I declined the request, in any event, for the calling of an additional person to give evidence on the basis that I felt there was a due opportunity for people to be able to call their evidence today and further delay wouldn’t be appropriate and would be more akin to a further fishing expedition, looking to find answers in circumstances where it would appear to me, given the evidence today, there would be unlikely to be any more evidence to be able to be produced by the Respondent anyway.

[11] The Applicant has produced evidence that he was employed and directed to wear a uniform. The uniform carried the logo of the Respondent. That of itself is not that unusual in that it is not uncommon for labour hire employees or employees of other contracting entities to wear a logo which might represent a principal contractor’s identity rather than their true employer. So that of itself is not sufficient to persuade me to reconsider my earlier view.

[12] It has also been raised by you, Mr Doe-Nunneh, that you believe that at a certain point in time when you were engaged as a security officer that you were directed to perform work under someone else’s name. If that’s true that’s a very serious issue and it is an issue that warrants proper investigation. However, that of itself, and what has been said today about that, doesn’t provide me any particular assistance in dealing with the specific issue that I have before me to resolve, which is the jurisdictional question about who your employer was for the purposes of this unfair dismissal claim.

[13] I’ve considered the evidence and submissions and conclude that it is more likely than not that the Applicant was not an employee of the Respondent and therefore the jurisdictional objection is upheld and the application must be dismissed on that basis.

[14] However, of course, it always remains open for you, Mr Doe-Nunneh, to bring the matter concerning the true identity of your employer as an issue to the Fair Work Ombudsman, who does have powers to investigate these issues further.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR553895>