Mr Allan Trethewey v Windsor Investments (Aust) Pty Ltd T/A Warwick Bus and Coach
[2015] FWC 881
•12 MARCH 2015
| [2015] FWC 881 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Allan Trethewey
v
Windsor Investments (Aust) Pty Ltd T/A Warwick Bus and Coach
(U2014/11604)
COMMISSIONER CLOGHAN | PERTH, 12 MARCH 2015 |
Application for relief from unfair dismissal.
[1] Mr Allan Trethewey (Mr Trethewey or Applicant) has made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Windsor Investments (Aust) T/A Warwick Bus and Coach (Employer).
[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[3] In response to the application, the Employer asserts that the Applicant was not dismissed.
[4] The matter was not resolved at conciliation and referred to me for arbitration.
[5] At arbitration, the Applicant represented himself and gave evidence on his own behalf. The Employer was represented by Ms M Saraceni of Counsel. Mr Rod Jenzen, Company Director, gave evidence on behalf of the Employer.
[6] This is my decision and reasons for decision on Mr Trethewey’s application.
RELEVANT BACKGROUND
[7] From the material provided to the Commission:
- Mr Trethewey commenced employment on 16 October 2012 and his principal job was as a school bus driver;
- at the commencement of his employment, Mr Trethewey was allocated to drive the Two Rocks Woodridge school bus;
- while driving on the Two Rocks Woodridge school route, Mr Trethewey was the subject of complaints to the Public Transport Authority (PTA);
- subsequently, the PTA received advice from the Employer that Mr Trethewey had been replaced as the driver on the Two Rocks Woodridge school bus services effective from 14 October 2013;
- Mr Trethewey last worked for the Employer on 17 October 2013;
- on 6 November 2013, Mr Trethewey filed an application in the Commission alleging that he had been unfairly dismissed from his employment (U2013/15628). This application was dealt with by two other members of the Commission;
- on 14 May 2014, Mr Trethewey and the Employer agreed to terms of settlement in resolution of application U2013/15628;
- on 15 May 2014, Mr Trethewey filed a notice of discontinuance in application U2013/15628;
- as part of the terms of settlement, Mr Trethewey was to commence employment on Monday 21 July 2014, at the start of Term 3 of the school year, on the Bullsbrook school route; 1
- on 3 June 2014, the Employer met with the PTA. While the meeting was not specifically related to Mr Trethewey, in the course of the discussions, Mr Jenzen mentioned that the Applicant was commencing employment on another school bus service;
- as a result of being advised of this information, the PTA exercised a right under its contract with the Employer, that the Employer remove Mr Trethewey from driving any PTA contracted “orange school business service” 2;
- the PTA confirmed the exercise of its right under the contract in correspondence to the Employer on 16 June 2014 3;
- Mr Rod Jenzen received the PTA correspondence on 30 June 2014, via his father, Mr Peter Jenzen, who held the PTA contract;
- as a consequence of the PTA exercising its right under contract for the Employer not to utilise Mr Trethewey as a school bus driver, Mr Rod Jenzen set out, in correspondence dated 9 July 2014, a proposal to Mr Trethewey to pay him the following entitlements:
Pay in lieu of notice;
Redundancy pay entitlements; and
Outstanding holiday pay. 4
- Mr Trethewey did not receive this correspondence. However, he attended the Employer’s premises on 16 July 2014 and, according to Mr Rod Jenzen, advised the Employer that he would “resign” on the basis of two (2) weeks’ notice and a “reference of continuous service up until that date”;
- Mr Trethewey disputes that he “resigned”;
- notwithstanding the disputed contents of the discussion on 16 July 2014, Mr Rod Jenzen advised Mr Trethewey that he would “honour the proposed payment [set out on 9 July 2014] even though he had purportedly resigned” 5;
- on 24 July 2014, Mr Rod Jenzen’s registered mail correspondence of 9 July 2014 to Mr Trethewey, was returned by Australia Post, unopened;
- subsequently on the same day (24 July 2014), the Employer made payment to Mr Trethewey consistent with Mr Rod Jenzen’s correspondence of 9 July 2014;
- on 28 July 2014, Mr Rod Jenzen became aware that the payment on 24 July 2014, had been returned to the Employer’s account;
- on 29 July 2014, Mr Trethewey attended the Employer’s offices and as part of the discussion, was asked for his current bank details to enable the payment of 9 July 2014, to be forwarded to his account;
- it would appear that Mr Rod Jenzen eventually sent a cheque to Mr Trethewey for the payment of monies set out in his correspondence of 9 July 2014. On 21 August 2014, Mr Trethewey advised him that he had lost or misplaced the cheque. Mr Rod Jenzen cancelled the cheque and sought Mr Trethewey’s bank details. To date, those details have not been provided to the Employer.
[8] For completeness, I note that between October 2013 and December 2014, Mr Trethewey was employed four (4) days per week on a casual basis driving a bus for Northside Buses 6. Mr Trethewey’s last date of employment for Northside Buses was 19 December 2014. I have no details of the actual days Mr Trethewey was employed.
[9] Finally, it should be noted that the outstanding holiday pay referred to in the Employer’s correspondence of 9 July 2014, was Mr Trethewey’s accrued entitlement due as at 17 October 2013.
RELEVANT LEGISLATIVE FRAMEWORK
[10] For a person to be protected from unfair dismissal, it is necessary that the person be an employee pursuant to s.382 of the FW Act.
[11] An employee means a national system employee.
[12] A national system employee is an individual who is employed, or usually employed, by a national system employer.
CONSIDERATION
[13] In his initiating application, Mr Trethewey states:
“1.2 What date were you notified of your dismissal?
I was not notified (like the first time). I was just not given any work. No explanation.
1.3 What date did your dismissal take effect?
22 July 2014.”
[14] It is necessary, in the first instance, to determine whether Mr Trethewey was an employee and employed by the Employer.
[15] There is no dispute that the Employer is a national system employer. However, Mr Trethewey last worked for the Employer on 17 October 2013 and claimed in his previous application (U2013/15628) that he was dismissed on 18 October 2013.
[16] Mr Trethewey has given evidence that, at some time from October 2013 and, as late as 19 December 2014, he was employed as a driver with another employer.
[17] On or around 14 May 2014, Mr Trethewey and the Employer entered into a settlement of U2013/15628, in which Mr Trethewey would commence employment on 21 July 2014. From May 2014, what existed between the parties was an intention for Mr Trethewey to become an employee.
[18] Put in the negative:
- between 18 October 2013 and 22 July 2014, Mr Trethewey had not entered into, or was working under, any contract of employment with the Employer;
- the contract of employment which existed prior to 18 October 2013 had been terminated, according to Mr Trethewey, on 18 October 2013;
- between 18 October 2013 and 22 July 2014, Mr Trethewey did not perform any work for the Employer;
- between 18 October 2013 and 22 July 2014, Mr Trethewey was not under the control of the Employer in the performance of work for the Employer;
- having alleged that he had been dismissed on 18 October 2013, there was no mutual obligation upon the Employer to provide work or pay to Mr Trethewey from 18 October 2013 to the alleged date of dismissal on 22 July 2014. In fact, the Employer did not provide work or pay Mr Trethewey during this period.
[19] No matter what construction Mr Trethewey has put on the relationship between himself and the Employer between 18 October 2013 and 22 July 2014, it cannot be described as an employment relationship. While not determinative of the circumstances, such a conclusion is also supported by the evidence of Mr Trethewey that he was working for another employer during this period.
[20] Put simply, from on or around 14 May 2014, Mr Trethewey may have had an expectation of entering into an employment relationship with the Employer on 21 July 2014, in accordance with the settlement agreement in application U2013/15628. However, that expectation ceased on 9 July 2014 as a consequence of the Employer’s correspondence. For unknown reasons, the Employer’s registered mail could not be delivered to the Applicant and was returned unopened by Australia Post.
[21] There are at least two constructions which can be put on the Employer’s correspondence of 9 July 2014. Firstly, the Employer unilaterally, but for good reason (correspondence from PTA dated 16 June 2014), could no longer honour the terms of the settlement of U2013/15628. Secondly, the correspondence was a counter proposal in relation to the settlement of U2013/15628, however, such a conclusion is inconsistent with making Mr Trethewey’s position redundant.
[22] In my view, as a result of the PTA advising the Employer that Mr Trethewey could not drive a bus on the “orange school business service”, and the Employer having no alternative position, the Employer felt an obligation to end the expectation of Mr Trethewey commencing employment on 21 July 2014. To that end, Mr Rod Jenzen offered to make a redundancy payment to Mr Trethewey. For reasons which I have already explained, Mr Trethewey could not be made redundant because he was not an employee of the Employer on 9 July 2014. It was simply a monetary payment in lieu of not being able to employ Mr Trethewey on 21 July 2014.
[23] In making this observation, I note that it appears the Employer is a small business, and undertook this course of action without seeking legal advice.
[24] In the course of this application, the Employer alleged that Mr Trethewey resigned. Mr Trethewey denies he resigned. I do not have to determine the issue because, at the time of the alleged resignation, Mr Trethewey was not in an employment relationship, from which he could resign from his employment. However, if I had to determine the matter, there are sound reasons to question why Mr Trethewey would seek a reference from the Employer, as he did, if he was to commence employment on 21 July 2014. I am not persuaded by Mr Trethewey’s contention that it was to “update his curriculum vitae” 7. It is also notable, at the time, the evidence demonstrates that Mr Trethewey was working four (4) days per week for Northside Buses.
CONCLUSION
[25] On examining, in their totality, all the facts, evidence and the provisions of the FW Act, I am satisfied that Mr Trethewey was not an employee at the time he was allegedly dismissed pursuant to this application. Mr Trethewey ceased being an employee of the Employer on 17 October 2013.
[26] Pursuant to s.382(a) of the FW Act, it is necessary for Mr Trethewey to be an employee at the time of his dismissal to be protected from unfair dismissal. Mr Trethewey was not an employee at the time of the alleged dismissal. Accordingly, the application must be dismissed as the Commission has no jurisdiction to deal with the matter. An Order to this effect is issued with this Decision.
COMMISSIONER
Appearances:
A Trethewey, on his own behalf.
M Saraceni of Counsel, on behalf Windsor Investments (Aust) T/A Warwick Bus and Coach.
Hearing details:
2015:
Perth,
4 February.
1 Transcript PN71
2 Exhibit R4
3 Exhibit R4
4 Exhibit R3
5 Exhibit R3
6 Transcript PN302
7 Transcript PN131
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