Mr Atul Kumar v ECS International Security and Investigations T/A Akbar Enterprises

[2018] FWC 4139

[2018] FWC 4139

FAIR WORK COMMISSION

DECISION

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

Mr Atul Kumar
v
ECS International Security and Investigations T/A Akbar Enterprises
(U2018/2837)

COMMISSIONER JOHNS SYDNEY, 5 SEPTEMBER 2018

Application for an unfair dismissal remedy – jurisdictional objection – whether respondent is a small business – minimum employment period – Applicant not a person protected from unfair dismissal - Application dismissed.

Introduction

[1] On 19 March 2018 Mr Atul Kumar (Applicant) made an application to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work FW Act 2009 (FW Act) for a remedy in respect of his dismissal by ECS International Security and Investigations T/A Akbar Enterprises (Respondent).

[2] On 16 April 2018 the Respondent filed a response to the unfair dismissal application raising the following jurisdictional objections:

a) The Applicant was not an employee.

b) The Applicant was not dismissed.

c) The Applicant’s employment does not meet the minimum employment period (MEP) (because the Respondent contended that it employed less than 15 employees it said the MEP was 12 months).

[3] Attempts at conciliation were attempted, but the matter remained unresolved. Consequently the matter was listed for Mention and/or Directions.

[4] At the Mentions and/or Directions hearing on 2 May 2018, I granted permission for the Respondent to be legally represented pursuant section 596 of the FW Act. I was satisfied that the matter was invested with sufficient complexity such that I would be assisted efficient conduct of the matter if I granted the respondent permission to be represented.

[5] After considering the view of the parties, I then listed the matter for Determinative Conference which was conducted on 13 and 27 June 2018.

Determinative Conferences

[6] At the Determinative Conference:

a) the Applicant represented himself gave evidence on his own behalf. He made himself available for cross-examination.

b) the Respondent was represented by Mr K Kutasui of Solve Legal Pty Ltd. The following witnesses gave evidence on behalf of the Respondent:

i. Mr Manoj Datta – Operations Support Manager of the Respondent.

ii. Mr Mohammed Rizwan Akbar – Director of the Respondent.

[7] During the determinative conference the following Exhibits were tendered. The Commission, as presently constituted, has had regard to the Exhibits as well as the evidence received during the hearing in coming to this decision.

EXHIBIT NO.	DESCRIPTION
R1	Submissions of Respondent Dated 16/05/2018
R2	Affidavit of Mohammad Rizwan Akbar Dated 06/06/2018
R3	Affidavit of Manoj Datta Dated 14/05/2018
R4	Further Witness Statement Of Manoj Datta Dated 21/06/2018
R5	Supplementary Witness Statement of Mohammad Akbar Dated 21/06/2018
A1	Affidavit of Atul Kumar Dated 28/05/2018
A2	Bundle of Weekly Rosters
A3	Bundle of Emails
A4	Supplementary Witness Statement Of Applicant Dated 26/06/2018 With Attachments

[8] At the conclusion of the Determinative Conference the parties were directed to file final written submissions. The Respondent did so on 9 July 2018. The Applicant filed various documents including Final Submissions between 27 June 2018 and 13 July 2018. I have also had regard to these documents in coming to this decision.

Background

[9] In so far as the Respondent contends that the Applicant did not serve the MEP I note that the following matters were either agreed between the parties or not otherwise substantially contested:

a) On either 19 1 or 242 July 2017 the Applicant was engaged by the Respondent to provide security services.

b) In March 2018 the Applicant was not sent a roster for the following week

c) This prompted the Applicant to send a text message inquiring about the same. He did so on 17 and 18 March 2018 3. Mr Datta, the Operations Support Manager replied stating that the roster would be sent through the next day and that the Applicant would be required at work Tuesday 20 March 2018.4

d) On Monday, 19 March 2018, the Applicant presented at the workplace. There is some disagreement about how this came about. In any case Mr Datta told the Applicant to leave the premises. 5 The content of this conversation is substantially contested.

e) Also on 19 March 2018 the Applicant accepted temporary engagement to provide security services for the Commonwealth Games. 6

f) On 20 March 2018 the Applicant did not present for work. The relationship between the Applicant and the Respondent came to an end.

[10] What flows from the brief history of events recounted above is that the Applicant’s length of service with the Respondent was a period 8 months.

[11] This is important because, if the Respondent is a small business the MEP is 12 months and the Applicant is not protected from unfair dismissal. Such a finding (i.e. that the Respondent is a small business) would render unnecessary a requirement to determine if the Applicant was an employee and, if he was an employee, whether there was a dismissal at the initiative of the employer. Put simply, if the Respondent is a small business it does not matter if the Applicant was an employee or whether he was dismissed.

[12] For the reasons that follow I have determined that the Respondent employed only 12 employees. Consequently:

a) the Respondent was a small business,
b) the MEP was 12 months,
c) the Applicant was not protected from unfair dismissal (because the Applicant's employment was less than 12 months).

Protection from Unfair Dismissal

[13] An order for reinstatement or compensation may only be issued where the Commission is satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.

[14] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

“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.

[15] In this matter there is a dispute about whether the Applicant has completed the minimum employment period. There is also a dispute about whether he was an employee as opposed to being an independent contractor and whether there was a dismissal at the initiative of the employer. Whether the Applicant was an employee and whether he completed the MEP are both relevant to determining if the Applicant was protected from unfair dismissal. However, as stated above if the Respondent is a small business the MEP is 12 months and because the Applicant’s length of service was only 8 months it does not matter if the Applicant was an employee or independent contractor. This is because his period of service will always be less than the MEP. For this reason I have decided to first determine whether the Applicant is protected from unfair dismissal by deciding if the Respondent was a small business.

[16] Section 383 sets out the definition of the minimum employment period for unfair dismissal matters:

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.

[17] Section 23 sets out the definition of a small business employer for the purposes of the FW Act:

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.

[18] Consequently if the Respondent was a small business at the time of dismissal, the Applicant must have served at least 12 months to be protected by unfair dismissal. The Respondent contends that, at the time of dismissal, it engaged at most 14 employees (with the consequence that the Applicant is not protected from unfair dismissal because his length of service is only 8 months).

Was the Respondent a small business?

[19] This question is decided by counting how many employees were employed by the Respondent. If the Respondent employed less than 15 employees it is a small business and the MEP is 12 months.

[20] The Respondent contended that it had (at most) 14 employees. The Respondent’s list of employees is as follows:

1. Avinesh Krishnan
2. Blessing Macleod Mitza
3. Fergus Martin
4. Manoj Baldev Singh Datta
5. Millie Liang
6. Mohsheeq M Khan
7. Nan Li
8. Robert M Harding
9. Robert Truong
10. Tara Leigh Price
11. Siaosi Veikune
12. Bhir Singh

[21] The Applicant contended that the Respondent employed more employees than outlined by the Respondent. His evidence was in the form of a sworn affidavit, where he listed additional purported employees as well as four office locations of the Respondent which may also have additional employees, including an office in Fiji.

[22] The Applicant’s list of employees, in addition to the list of employees specified by the Respondent, is as follows:

1. ‘Jalal (working on base more then one year according to him
2. Athar
3. Sumeet
4. Adnan
5. Kudrat Singh
6. Faizan Chaudhry
7. George Abdallah
8. Idris Barchia
9. Imran Khan
10. Asimullah Khan
11. Fahadullah
12. Syed Muhammad razi zaidi
13. Sahil Sharma
14. Rajat
15. Ali
16. Jaskiran
17. Arpreet
18. Satish Kumar
19. Syed Awais
20. Zebjahan
21. Aman’

The Applicant further stated that ‘according to me more then 25 employees are working in ecs may be more if all these are independent contractor all these are must be marked under sham contract and must be get justice more of come when me but due to visa rustication they scared’.

[23] It is clear from the two lists that there is agreement about some of the named people being characterised as employees. The names on both lists are:

1. Avinesh Krishnan
2. Blessing Macleod Mitza
3. Fergus Martin
4. Manoj Baldev Singh Datta
5. Millie Liang
6. Mohsheeq M Khan
7. Nan Li
8. Robert M Harding
9. Robert Truong
10. Tara Leigh Price
11. Siaosi Veikune
12. Bhir Singh

[24] The people in dispute (with the Respondent’s explanation about their status) are as follows:

Number	Name	What the Respondent says 7	What the Applicant says
1.	Jalal	Contractor	Current employee
2.	Athar	Former employee	Current employee
3.	Sumeet	Former casual employee	Current employee
4.	Adnan	Does not recall person	Current employee (for 11 years)
5.	Kudrat Singh	Employee for another body corporate	Current employee
Faizan Chaudhry	Member of Board of Advisors (Voluntary engagement); actually employed by the New South Wales Government	Current employee
6.	George Abdallah	Employee for another body corporate	Current employee
7.	Idris Barchia	Does not recall person	Current employee
8.	Imran Khan	Does not recall person	Current employee
9.	Asimullah Khan	Does not recall person	Current employee
10.	Fahadullah	Does not recall person	Current employee
11.	Syed Muhammad	Does not recall person	Current employee
12.	Sahil Sharma	Does not recall person	Current employee
13.	Rajat	Does not recall person	Current employee
14.	Ali	Does not recall person	Current employee
15.	Jaskiran	Does not recall person	Current employee
16.	Arpreet	Does not recall person	Current employee
17.	Satish Kumar	Does not recall person	Current employee
18.	Syed Awais	Does not recall person	Current employee
19.	Zebjahan	Does not recall person	Current employee
20.	Aman	Does not recall person	Current employee

Submissions on small business characterisation/MEP

Respondent

[25] The Respondent submitted that:

•  It is a Small Business Employer pursuant to s.383(b) of the Act; it had 12 employees as at 19 March 2018, and the Applicant has failed to produce any evidence to the contrary;

•  Mr Akbar’s affidavit, dated 6 June 2018, stated that ‘of all the persons named by Mr Kumar in his affidavit, those not identified as employees in Mr Datta’s affidavit and either former employees of ECS, are engaged as independent contractors, or are employed by unrelated bodies corporate to ECS’;

•  Although Mr Akbar gave evidence that he was also the director of another company, which had two employees, this is immaterial as the companies are not related bodies corporate per s 50 of the Corporations Act 2001 (Cth). In any event, even if they are related bodies corporate, there are still only 14 employees.

Applicant

[26] The Applicant submitted that:

•  the Respondent ‘deliberately did not disclose other workers’ in other locations in order to qualify as a Small Business Employer, and also did not produce a full record of independent contractors; the Respondent did not produce an accurate record of Ikran Bobby Akbar’s involvement in the company, nor did it produce any documentation relating to Mr Mohammed Syed Raja or Mr Adnan;

•  the Respondent ‘did not disclose the working of employee they sent email to these person for meeting…Akbar enterprises deliberately did not disclose these persons who are working till date as patrolman so I request for business account of Akbar enterprises and risk management must be scrutinised if Applicant produce his bank record so it is right for Applicant to verify salary transaction of Akbar enterprises and international risk management’;

•  Mr Manoj admitted that he glanced ‘the roaster and send to contractor who is working for us its means he is aware of all changes’.

Consideration

[27] The Applicant in this matter seemed to be under a misapprehension that it was the role of the Commission to conduct some Royal Commission like fact finding inquiry into the “in and outs” of the relationship between the Respondent and each of the individuals that he pointed to as potential employees. He provided the Commission with names of people and, in some cases their mobile phone numbers. He invited the Commission to make contact with them and find out if they were employees. That is not the role of the Commission. Absent some credible evidentiary basis for making a further inquiry the Commission relies upon the parties bringing evidence before it. The Commission has procedures in place that allow parties to seek Orders for Attendance and Orders for the Production of Documents. The Applicant did not use any of these means to elicit the evidence he seemed to think was there.

[28] At the end of the day the Commission must base its decision on the best evidence that was before it. In the present matter the Commission received the following documentary evidence from the Respondent about the people who were employees.

a) A copy of the Applicant’s contract for service;
b) A copy of the Respondent’s payroll summary for the week ending 25 March 2018;
c) A copy of Jalal Uddin’s contract for service;
d) Payslip records for Robert Truong, a former employee of the Respondent;
e) Payslip records for Muhammad Athar Saeed, a former employee of the Respondent;
f) Invoice from Iqrann ‘Bobby’ Akbar to Respondent;
g) Payslip records for Sumeet Sharma, a former employee of the Respondent;
h) Payslip records for Kudrat Singh and Anila Shaheen, former employees of the Respondent.

[29] In addition, Mr Mohammad Rizwan Akbargave evidence about the people in the employ of the Respondent. Going through the names of the people identified by the Applicant as potential employees, Mr Akbar was able to explain the true nature of the relationship between each of them and the Respondent. Mr Akbar was a difficult witness, but nonetheless presented as a witness of credit. He did his best to answer the questions asked of him by the Applicant and by me. He made concessions when necessary.

[30] I can only make a decision based on the evidence that is before me; not on what the Applicant would like to be before me. Consequently, based on the evidence before me I am satisfied that the Respondent employed 12 people. The payroll summary for the week ending 25 March 2018 is a business record. I am entitled to rely upon it as proof of the employees at the relevant time. There was nothing about that business record that caused me to doubt the veracity of it. It may be that the Respondent has mischaracterised some of its contractors as employees (it may be that it did so with the Applicant), but the evidence before me does not support a factual finding to that effect.

Conclusion

[31] The Commission, as presently constituted, is satisfied that:

a) the Respondent employed less than 15 people,
b) (consequently) the Respondent was a small business,
c) (with the further consequence) the MEP was 12 months.

[32] In circumstances were the Applicant’s period of service was 8 months (even if I accept that he was an employee), the Applicant did not complete the MEP.

[33] Consequently, the Applicant was not protected from unfair dismissal. His application for an unfair dismissal remedy must be dismissed.

[34] An order will be issued with this decision.

COMMISSIONER

Appearances:

The Applicant on his own behalf.

K Kutasi on behalf of the Respondent.

Hearing details:

13 and 27 June:

2018.

Printed by authority of the Commonwealth Government Printer

<PR608967>

 1   Exhibit R3.

 2   Exhibit A1.

 3   Exhibit R4, MD2-2.

 4   Exhibit A1;

 5   Exhibit R3; Exhibit A1.

 6   Final Submissions of Respondent dated 9 July 2018; Final Submissions of Applicant dated 10 July 2018.

 7   Through its Director, Mohammed Rizwan Akbar.