Mr Andres Luis Lukac v Geddes Video Pty atf the Syndicate Trust and Auvh Pty Ltd atf the Trinity Trust T/A Indepth Video & Photography
[2011] FWA 5097
•5 AUGUST 2011
[2011] FWA 5097 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Andres Luis Lukac
v
Geddes Video Pty atf The Syndicate Trust and AUVH Pty Ltd atf The Trinity Trust T/A Indepth Video & Photography
(U2011/872)
COMMISSIONER SIMPSON | BRISBANE, 5 AUGUST 2011 |
Termination of employment - Jurisdiction - Whether small business employer- Less than 15 employees at time of termination - Application dismissed.
[1] This decision concerns whether an application under section 394 of the Fair Work Act 2009 (FW Act) by Mr Andres Lukac (the Applicant) with respect to his termination of employment with Geddes Video Pty Ltd atf The Syndicate Trust and AUVH Pty Ltd atf The Trinity Trust trading as Indepth Video and Photography (the Respondent) must be dismissed on jurisdictional grounds.
[2] The Applicant’s application was lodged with Fair Work Australia on 27 April 2011. On 27 May 2011 the Respondent filed its response which included two jurisdictional objections. The first objection was on the basis that the Respondent is a small business employer with less than 15 employees and the Applicant had worked less than 12 months. The second objection was the Applicant was engaged as a contractor not an employee.
[3] A conciliation conference was conducted on 31 May 2011 which was unsuccessful. I listed the matter for programming on 7 July 2011 where I granted an application from the Respondent to be represented by Mr Mark Peters, a solicitor of Peters Bosel Lawyers, and I decided to proceed to determine the jurisdictional objection from the Respondent that the Applicant did not satisfy the meaning of minimum employment period in s.383 of the FW Act. A notice of listing was issued for a jurisdictional hearing on 3 August 2011 with directions for the filing of material in advance of the hearing.
[4] The Respondent filed written submissions and two witness statements from Mr Mark Geddes, a Director of the Respondent, and Mr Deon Adendorff, the Operations Manager of the Respondent. The Applicant filed written submissions and one statement from himself.
BACKGROUND
[5] The Respondent has a contractual arrangement with the Quicksilver Group of Companies to provide on-board video and photographic services to guests on their vessels.
[6] There is a dispute between the parties as to whether the Applicant was engaged as an employee or an independent contractor that is the subject of a complaint to the Fair Work Ombudsman. 1
[7] It is common ground that the Applicant’s engagement commenced on 14 August 2010. It is also common ground that Respondent terminated that engagement. The Respondent says the contract was terminated on 13 April 2011 and the Applicant says from 14 April 2011. Regardless of the dispute over the termination date it is accepted that the engagement was in the order of approximately eight months.
[8] The Respondent maintains that it engaged 13 people as at the date of termination of the Applicant’s contract and 5 of those persons were contractors, however, for the purpose of determining this jurisdictional objection the Respondent said it was prepared, on a without prejudice basis, to regard what it maintains are the 5 contractors to be counted as employees to determine whether the Respondent is a small business employer.
[9] The Applicant maintained the Respondent was not a small business employer as it employed 15 or more employees and therefore he is entitled to bring an application for unfair dismissal as the qualifying period is six months.
[10] There was evidence provided by both parties about the status of a number of persons as employees or otherwise that would be determinative of whether the Respondent was or was not a small business employer if the 5 disputed persons claimed to be contractors were counted as employees in the first instance.
[11] The Respondent proposed this course and I regard it as a sensible proposal as it will make unnecessary consideration of the true position of the 5 alleged contractors and consequently save time and cost to both parties if the Applicant is not successful in its case regarding the status of the other disputed persons.
CONSIDERATION
[12] Section 382 of the FW Act says as follows;
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.
Note: High income threshold indexed to $118,100 from 1 July 2011.”
[13] Section 383 of the FW Act says as follows;
383 Meaning of minimum employment period
“The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.”
[14] Section 23 of the FW Act says as follows;
23 Meaning of small business employer
“(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.
(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a) the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”
Date of Termination
[15] There was a dispute between the parties about whether the Applicant’s contract was terminated by the Respondent on 13 April 2011 or 14 April 2011. On the basis of the evidence of Mr Geddes, 2 Mr Adendorff,3 concessions made by Mr Lukac during his oral evidence,4 the Applicant’s written submissions,5 his statement6 and an email forwarded by Mr Lukac to a number of persons on the evening of Wednesday 13 April 2011,7 it is clear to me that the contract was terminated on 13 April 2011 and not 14 April 2011 as claimed by the Applicant.
[16] In consideration of the words in section 23(1) of the FW Act I am satisfied that the “particular time” I must determine whether the Respondent employed fewer than 15 employees was the time of termination on 13 April 2011.
Employment Status of Disputed Persons
[17] The following list was an annexure to the Respondent’s Form F3 response to the application and was said by the Respondent to include all persons engaged by it at the time of the Applicant’s termination.
NAME | TITLE | EMPLOYMENT | START DATE |
Deon Adendorff | Operations Manager | Full Time Employee | 22/08/2002 |
Talas Busch | Videographer/Photographer | Contractor | 24/11/2010 |
Andres Lukas | Videographer/Photographer | Contractor | 25/08/2010 |
James Mallard | Videographer/Photographer | Contractor | 30/03/2009 |
Jesse Oberholzer | Supervisor Videographer/Photographer | Contractor | 4/07/2007 |
Tanja Simpson | Videographer/Photographer | Contractor | 3/05/2006 |
Vince Chen | Videographer/Photographer | Full Time Employee | 30/04/2007 |
Toby Larke | Videographer/Photographer | Casual Employee | 7/03/2011 |
Tamara Summers | Videographer/Photographer | Full Time Employee | 15/05/2007 |
Rebecca Hera-Singh | Administration Assistant | Permanent Casual Employee | 17/04/2006 |
Norio Sato | Videographer/Photographer | Contractor | 25/03/2010 |
Karina Badger | Videographer/Photographer | Casual Employee | 5/11/2010 |
Satoshi Kajimoto | Videographer/Photographer | Full Time Employee | 3/09/2006 |
[18] The Respondent also clarified in the hearing that contrary to the table above it accepted that Talas Busch who was described as a contractor in the table above was an employee of the Respondent as at 13 April 2011. This document was also produced by the Applicant. 8
[19] The Applicant’s written submissions regarding the Respondent’s claim to be a small business employer 9 did not squarely address individual cases that are contested. The Applicant in his witness statement10 refers to a number of rosters between August 2010 and February 2011 which he maintained show the Respondent engaged 15 or more employees at those times. He then provided evidence11 regarding Trine Nielson, Ella Spittal, Abbey White and Wietske Van Heiden to argue that they should be counted as employees of the Respondent.
[20] The Respondent provided through the statement of Mr Adendorff a roster covering the period of 11 April to 24 April 2011. 12 The Applicant’s evidence did not include this roster but included a range of rosters through the latter half of 2010 and first part of 2011 up to 28 March to 10 April roster.13
[21] I now turn to the disputed persons who the Applicant maintains should be counted in addition to the thirteen identified by the Respondent in the table above.
Ella Spittal
[22] The Applicant said Ella Spittal’s name appeared on a roster for the period 25 October to 7 November 2010 14 which was after she was said to have finished working for the Respondent.
[23] Mr Geddes said Ella Spittal was engaged as a casual in June 2010 as a “fill-in” photographer. Mr Geddes said she only worked for eight days for the Respondent, the last being 11 September 2010. 15 Attached to Mr Geddes statement was documentary evidence indicating all days worked by Ella Spittal for the Respondent.16 Mr Adendorff’s evidence was consistent with Mr Geddes’.17 The evidence is clear Ella Spittal was not employed on a regular and systematic basis by the Respondent as at 13 April 2011 and should not be counted as an employee on that date.
Abbey White
[24] Mr Geddes and Mr Adendorff gave consistent evidence that Abbey White was one of a number of students from Mossman State High School interested in photography who engaged in work experience with the Respondent. 18 Mr Geddes said this was in the November 2010 period. His evidence was Abbey White did some casual work following her work experience in the December 2010/January 2011 period. This was a period of nine days, the last being 14 January 2011. Abbey White next worked for the Respondent on 30 June 2011 for four or five days in June/July 2011 holiday period. The work in June/July 2011 was at the request of the Respondent as one full time employee had finished on 1 July 2011 and several others were on leave during that period. Mr Geddes said she had no expectation of work between 14 January and 30 June 2011. Evidence of the days worked by Abbey White was attached to the statement of Mr Geddes.19
[25] The evidence is clear Abbey White was not employed on a regular and systematic basis by the Respondent as at 13 April 2011 and should not be counted as an employee on that date.
Wietske Van Der Heiden
[26] The Applicant said that Wieske Van Der Heiden is identified on rosters up to 13 February 2011 20 and he did not believe it was possible someone with her experience was not being paid.21
[27] Mr Geddes explained that this employee worked for a competitor aboard another vessel which sank. Van Der Heiden’s employment was subject to a 457 visa and her sponsor lost the contractual arrangement aboard the vessel and her sponsorship arrangements was terminated. Mr Geddes said she approached the Respondent and asked to be engaged and she initially undertook unpaid training followed by some paid casual work until 7 February 2011 when the Respondent became aware that she was not entitled to be working in Australia until her sponsorship arrangement was resolved.
[28] Ms Van Der Heiden was not at law able to be employed until a sponsorship arrangement with the Respondent was approved and a visa granted. Mr Geddes said once the Respondent was aware of this a decision was made she would not go aboard the vessel until the matter was resolved and her last day on the vessel was 7 February 2011. Her visa was granted on 9 June 2011 22 and she commenced employment with the Respondent on 14 June 2011. Mr Geddes produced records of the Respondent to support this claim.23
[29] The evidence is clear Wietske Van Der Heiden was not employed on a regular and systematic basis by the Respondent as at 13 April 2011 and should not be counted as an employee on that date.
Joel Fu
[30] Mr Geddes said Joel Fu was from Hong Kong and she came to Australia on a working holiday. Joel Fu was engaged as a casual on 12 January 2011 and performed 21 days work as a photographer during the Chinese New Year period. Her last day of employment was 26 February 2011. The Respondent understands after that date she returned to Hong Kong. Mr Geddes produced records to support his claim regarding the days she worked. 24 It is clear Joel Fu was not employed on a regular and systematic basis by the Respondent as at 13 April 2011 and should not be counted as an employee on that date.
Trine Nielson
[31] The Applicant referred me to clause B.10.4 of the Amusement, Events and Recreation Award 2010 to support a claim that if Trine Nielson was an unpaid trainee as the Respondent claimed, the Award required she be a paid employee. On perusal of the Award it would appear the clause intended to be referred to by the Applicant is in fact clause C.10 in schedule C which pertains to supported wage arrangements and therefore is not applicable to the circumstances of this case.
[32] It was Mr Geddes’ evidence 25 that Trine Nielson is a University student studying marine biology at James Cook University who did volunteer work experience for the Respondent in January and February 2011. Although she signed a Videographer/Photographer Contractor Agreement on 26 February 2011 at no time did she perform paid contracting services or paid employment until 14 April 2011, which was the day after the termination of the Applicant’s contract.
[33] Attached to Mr Geddes’ statement was evidence that Trine Nielson did not commence a paid engagement until 14 April 2011. 26
[34] Mr Adendorff gave evidence that was consistent with Mr Geddes. He said that he was contacted by Trine Nielson because she wanted to do unpaid work experience in order to learn about photography and underwater film. 27 Mr Adendorff said a concern existed about workplace injury insurance arrangements for a volunteer and his investigations indicated neither of the boat operator’s insurance or the university’s insurance would apply. Mr Adendorff said he incorrectly used an independent contractor’s agreement which was signed by Trine Nielson, but not by the Respondent, for the purpose of having her covered by the Respondent’s insurance, but on the understanding that she was doing unpaid training as part of a work experience arrangement.
[35] Emails attached to the statement of Mr Adendorff tend to support his version of the arrangement. 28 Mr Adendorff’s statement also said that where two names appear together on the roster as was the case on 13 and 14 April 2011 (where his name appeared with Trine Nielson) it was to show that an unpaid trainee was being accompanied by someone engaged on a paid basis by the Respondent.29 He said further that as the Applicant no longer worked for the Respondent from 13 April 2011 that explains the decision to engage Trine Nielson on a paid basis for the first time on 14 April 2011, as otherwise a vacancy would have existed in the roster.
[36] I am satisfied on the basis of the evidence that Trine Nielson was not an employee of the Respondent at the time the Applicant was terminated but was engaged in unpaid work experience as agreed between her and the Respondent.
CONCLUSION
[37] For the reasons set out above I accept the Respondent’s claim that it employed less than 15 employees as at 13 April 2011. Proceeding on the basis of the without prejudice concession from the Respondent that it is prepared to put to one side for the purpose of this jurisdictional objection a dispute about whether 5 persons are party to contracts “of service” or “for service” and including those 5 in the total count, the number of employees employed at the time is 13. Even if my view expressed above that Trine Neilson’s arrangement with the Respondent to perform voluntary work experience was not employment is wrong, and she should be counted, the total number is still less than 15.
[38] The Respondent was a small business employer as the time of the termination of the Applicant. Therefore in accordance with section 383 of the FW Act the minimum employment period in order to access an unfair dismissal remedy was one year. It is accepted by both parties the Applicant’s engagement was approximately eight months.
[39] Accordingly, the application for relief must be dismissed.
COMMISSIONER
Hearing details:
3 August 2011
Brisbane (by telephone)
1 Exhibit 3, Paragraph 12.
2 Exhibit 1, Paragraphs 5-10.
3 Exhibit 2, Paragraphs 10-16.
4 Transcript 3 August 2011, PN286-329.
5 Exhibit 6, Paragraph 10.
6 Exhibit 3, Paragraph 1.
7 Exhibit 4.
8 Exhibit 3, Attachment 34.
9 Exhibit 6, Paragraphs 35-60.
10 Exhibit 3, Paragraphs 23-35.
11 Exhibit 3, Paragraph 50-56.
12 Exhibit 2, Annexure DA1.
13 Exhibit 3, Attachment 36.
14 Exhibit 3, Paragraph 25; Attachment 25.
15 Exhibit 1, Paragraph 14.
16 Exhibit 1, Annexure MWG4 and MWG5.
17 Exhibit 2, Paragraph 37.
18 Exhibit 1, Paragraph 14(b); Exhibit 2, Paragraph 34-35.
19 Exhibit 1, Annexure MWG6 and MWG7.
20 Exhibit 3, Attachments 27, 29, 32, 39.
21 Exhibit 3, Paragraph 56.
22 Exhibit 1, Annexure MWG11.
23 Exhibit 1, Annexure MWG12.
24 Exhibit 1, Annexure MWG8.
25 Exhibit 1 Paragraph 14(d).
26 Exhibit 1, Annexure MWG9 and MWG 10.
27 Exhibit 2, Paragraph 17.
28 Exhibit 2, Annexure DS2 and DS3.
29 Exhibit 2, Paragraph 29.
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