Mr Constant Behrens v Cambewarra Estate T/A Cambewarra Wines

[2015] FWC 8006

[2015] FWC 8006 [Note: An appeal pursuant to s.604 (C2015/7630) was lodged against this decision - refer to Full Bench decision dated 11 February 2016 [[2016] FWCFB 370] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mr Constant Behrens
v
Cambewarra Estate T/A Cambewarra Wines
(U2015/9042)

COMMISSIONER RIORDAN SYDNEY, 1 DECEMBER 2015

Application for relief from unfair dismissal.

[1] This decision relates to an application by Mr Constant Behrens (the Applicant) claiming that he was unfairly dismissed by Cambewarra Estate t/a Cambewarra Wines (the Respondent).

[2] The parties agreed that the relevant jurisdictional issues would be determined on the papers.

[3] Mr Behrens claims that he has worked for the Respondent, and its predecessor, as a casual employee for the last four years, usually working three days a week. I note that no documentation was provided by the Applicant to substantiate these claims.

[4] Mr Brian Mills leased the Cambewarra Estate Winery from 8 May 2015 until 20 July 2015 from Mr Gary Peat whilst Mr Peat took an extended holiday. Mr Mills expressed concern that there was a lack of financial employment records, for example, there did not appear to be any payslips or group certificates. Mr Mills claimed that Mr Behrens was not a transferring employee.

[5] I note that Mr Peat is now back running the winery and that Mr Behrens has returned to work at the winery.

[6] Mr Behrens is claiming lost wages for the three months that Mr Mills leased the winery. The evidence shows that Mr Behrens was paid $100 per day cash in hand on the day, when he worked for Mr Peat. Mr Behrens would normally work in the vineyard undertaking the necessary pruning and providing the appropriate care for the vines.

[7] Mr Mills has claimed that Mr Behrens was not an employee of his business, except for a single day when Mr Behrens dismantled a marque on 12 June 2015. Mr Mills claims that there was never any promise to Mr Behrens of any regular or on-going work.

[8] Following a number of intensely worded emails from Mr Behrens on Sunday 14, Monday 15, and Tuesday 16 June 2015, which Mr Mills regarded as being threatening, Mr Mills advised Mr Behrens that he would be paid for the day that he worked, being 12 June 2015, but that his services would no longer be required.

[9] Mr Behrens claims that this action by Mr Mills was unfair and a breach of the Fair Work Act, 2009 (the Act).

[10] The jurisdictional questions to be resolved centres on whether there was a transfer of business from Mr Peat to Mr Mills and the consequences of this transaction in relation to Mr Behrens employment status.

Statutory Provisions

“311 When does a transfer of business occur

Meanings of transfer of business, old employer, new employer and transferring work

(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:

(a) the employment of an employee of the old employer has terminated;

(b) within 3 months after the termination, the employee becomes employed by the new employer;

(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;

(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).

Meaning of transferring employee

(2) An employee in relation to whom the requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring employee in relation to the transfer of business.

Transfer of assets from old employer to new employer

(3) There is a connection between the old employer and the new employer if, in accordance with an arrangement between:

(a) the old employer or an associated entity of the old employer; and

(b) the new employer or an associated entity of the new employer;

the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):

(c) that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and

(d) that relate to, or are used in connection with, the transferring work.

Old employer outsources work to new employer

(4) There is a connection between the old employer and the new employer if the transferring work is performed by one or more transferring employees, as employees of the new employer, because the old employer, or an associated entity of the old employer, has outsourced the transferring work to the new employer or an associated entity of the new employer.

New employer ceases to outsource work to old employer

(5) There is a connection between the old employer and the new employer if:

(a) the transferring work had been performed by one or more transferring employees, as employees of the old employer, because the new employer, or an associated entity of the new employer, had outsourced the transferring work to the old employer or an associated entity of the old employer; and

(b) the transferring work is performed by those transferring employees, as employees of the new employer, because the new employer, or the associated entity of the new employer, has ceased to outsource the work to the old employer or the associated entity of the old employer.

New employer is associated entity of old employer

(6) There is a connection between the old employer and the new employer if the new employer is an associated entity of the old employer when the transferring employee becomes employed by the new employer.”

“384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”

Evidence

[11] On 18 May 2015, Mr Peat sent an email to Mr Mills which, in part said;

“From: Gary Peat
To: Brian Mills
Date: Mon, 18 May 2015 18:31:50

Hey Brian, hope all is going to plan down there, we are looking like getting away on Wednesday. Wines are all under control for a couple of months, not sure what your plans are for Hayden and Constant, they would like to know where they stand as far as work is concerned, pruning can be started any time, it is always better to be in front in case of bad weather or any other mishaps.” 1

[12] I note that this email is ten days after Mr Mills took control of the vineyard. Mr Mills advised me that he maintained the employment of one employee, known to me as Hayden, on a full time basis.

[13] On 20 May 2015, Mr Mills responded in the following terms;

“From: Brian Mills
To: Gary Peat
Sent: Wednesday, 20 May 2015 10:20pm

Hi Garry,

Just a few issues to today up before you guys leave. Garry if you could send me constants phone number I will get in touch with him when we start pruning and if we need help setting up for June long weekend and any other work going forward. I have asked Vicki to keep in touch with Hayden and give him a few days work this week and I am hoping to get up there this weekend for a few days to sort out a few things for the June long weekend and also put a list together for Hayden to do over the coming weeks.” 2

[14] Mr Peat responded by saying;

“From Gary Peat

To: Brian Mills

Sent: Wednesday, 20 May 2015 11.39pm

Constant has relied on us for his “pocket” money for nearly 4 years or so and just would like to know if it can continue, now that he knows his way around, he is cheap labour, and can be put on the books as a deduction.
We still owe Hayden a bit of holiday pay, so he has a bit of money for this and next week, he will be very useful to you, initially and does want to stay involved. ” 3

[15] On 10 July 2015, Mr Peat sent the following email to Mr Mills;

“Form: Gary Peat

To: Brian Mills

Sent: Friday, 10 July 2015 8:15pm

Hey Brian, managed to talk to Constant for about 30 mins! It seems that it is all about the way things came to an end for him, as far as work is concerned at the vineyard. He clearly is disappointed that he will not be part of what is going on there, it has been a major source of enjoyment for him and a big part of his recovery from his problems. He feels that Hayden was partly responsible and no doubt in my mind that he didn’t help the situation, Hayden didn’t have much patience with him, and not much respect either.
I feel that you could soften the situation by way of an apology, whether warranted or not, and maybe the offer of some work when you get on your feet a bit and can afford to pay him, or just explain that unfortunately, you can’t afford to have him around. He is a very intelligent and articulate person and his been an asset to us, albeit that I understand him well, whereas you have not known him well enough. He feels he has been shafted from something that possibly was not really there in the first place, but at 70 and after being there for 4 years, it has definitely upset him enough to cause this bullshit.
Anyhow, keep in touch, I’m sure it will get sorted, cheers Gaz” 4

[16] On 14 June 2015, two days after his first working day for Mr Mills, Mr Behrens sent the following email;

“From: Constant Behrens

To: Brian Mills

Sent: 14 June 2015 8:26am

Dear Brian

Don’t worry about the NO PAY

NO TOOLS, NO PLAN hiccups.

There are trivial and insignificant compared to the blackmail and defamation that gets people into jail. Look forward to a clean slate in a collaborative and cooperative self-managed team where no one works in the shade of anyone else. This is how we achieve quantum leaps in productivity and creativity.

Best Wishes
Constant” 5

[17] Mr Behrens followed up with another email the following day;

“From: Constant Behrens

To: Brian Mills

Sent: 15 June 2015 8:31am

Hello Brian

Any news on the work front? We need to meet and review the state of affairs of my employment:

1. There is unfinished business. It required legal, managerial and financial clarification.

2. There are no forward planning arrangements. A workable plan has to be fair, open and firm.

Not attending to the matter at hand is a breach of contract on our duty of care. Please arrange a meeting.

Thanks and regards
Constant” 6

[18] Mr Behrens sent the following two emails on 16 June 2015;

“From: Constant Behrens

To: Brian Mills

Sent: 16 June 2015 00:50

Dear Brian

You will soon receive an invitation to appear in court where we can resolve our issues and move on.
I will invite Gary and Louise to the spectacle. A very rare age-worthy bottle of their 1988 Estate Grown Reserve Petillance Noir has been set aside to make our get together.

The 1988 bicentennial vintage was exceptional. A long and dry summer allowed the fruit to come to maturity under the influence of the cool sea breeze. French oak maturation and Methode Champenoise fermentation add a black touch to the bright spark.

Obviously the vineyard, rather than the court would be a nobler scenic location to leapfrog painful litigation and embrace joyful mediation. The choice is yours. Should you choose the latter, I suggest you catch up on the work at hand with a prompt call.

Kind regards
Constant” 7

“From: Constant Behrens

To: Brian Mills

Sent: 16 June 2015 20:58

Dear Brian

Mediation above litigation was the purpose of my emails. Just like the grass gets cut to fertilise the vines, the email you didn’t appreciate was cutting though the inertia of the moment by weeding the vines for a start with no hiccups.

Farewell Yesterday! Can we turn our hands, minds and vines towards a shared future that is clear, calm, bright and firm? More like the elements of the air, water, sun and earth that grow the fruits? We can learn, rise and grow beyond the hiccups. We can pull out the weeds!

If you want to catch up on the due pay, my banking details are: ………. I appreciate the payment.

Thanks and regards
Constant” 8

Consideration

[19] In accordance with section 311(3) of the Act, there is no doubt that the assets of the old employer, Cambewarra Estate, transferred to the new employer, Cambewarra Wines when the lease of the vineyard transferred on 8 May 2015. I have taken this into account.

[20] It is not disputed that Mr Behrens was employed by Mr Mills on 12 June 2015, which is inside the three month timeframe stipulated in section 311(1)(b) of the Act. I have taken this into account.

[21] In Shortland v Smiths Snackfood 9 a Full Bench of Fair Work Australia dealt with the issues pertaining to the calculation of service for casual employees;

“[10] As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period. 10 In this sense no casual employee has a continuous period of employment beyond any single engagement. Moreover, it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa. It is against that background that s.384 must be construed.

[11] The criteria in s.384(2)(a) make it clear that s.384 does not proceed on the basis that a casual employee’s period of employment for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment.

[12] Moreover, it is more than tolerably clear that s.384 is concerned with how an employee’s period of employment is calculated for the purposes of s.382(a). Section 384(2) draws a distinction between a period of service and a period of employment. It also draws a distinction between a period of continuous service and a period of service: a period of continuous service can be made up of a series of periods of service, some of which count towards the period of continuous service (ie. where the conditions in s.384(2)(a)(i) and (ii) are met) and some of which do not (ie. where one of the conditions in s.384(2)(a)(i) or (ii) is not met). It is clear from the language of s.384(2) that an employee may have series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee’s period of employment only if the requirements in s.384(2)(a)(i) and (ii) are met. Section 384(2) is concerned only with determining which periods of service in such a contiguous series count toward the employee’s period of employment with the employer for the purposes of s.382(a).

[13] Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury.”

[22] Based on this decision, Mr Behrens has four years’ service at the winery and therefore satisfies the small business minimum employment period of 12 months as stipulated by section 383 of the Act.

[23] It would also appear that Mr Mills did not advise Mr Behrens, before he started work on 12 June 2015, that his prior service with Cambewarra Estate would not be recognised or counted as service of Cambewarra Wines. I have taken this into account.

[24] In Hill v Sahir t/a Café Moderno at Fountain Gate 11, Roe C, found that there was a transfer of employment because there had been a transfer of business between the old and the new employer and the employee was doing the same work for both employers. I have taken this into account.

[25] Section 311(1) requires all of the 4 requirements to be satisfied for there to be a transfer of business. For convenience, I have reproduced the provision again;

“311 When does a transfer of business occur

Meanings of transfer of business, old employer, new employer and transferring work

(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:

(a) the employment of an employee of the old employer has terminated;

(b) within 3 months after the termination, the employee becomes employed by the new employer;

(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;

(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).

Meaning of transferring employee

(2) An employee in relation to whom the requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring employee in relation to the transfer of business.”

[26] Based on the email from Mr Peat to Mr Mills on 18 May 2015, I am not convinced that Mr Peat terminated Mr Behrens when he transferred the lease to Mr Mills. I have taken this into account.

[27] Mr Behrens describes himself as a vigneron. The Collins English Dictionary defines “vigneron” to mean “a person who grows grapes for winemaking.”

[28] The email of 18 May 2015, would also support the view that Mr Behrens was mainly engaged in taking care of the vines performing tasks such as pruning.

[29] Mr Mills did not employ Mr Behrens to perform any work “on the vines”. The only work offered to Mr Behrens by Mr Mills was when he was employed to dismantle a marque some five weeks’ after Mr Mills took control of the vineyard. Mr Behrens did not perform any work for Mr Mills which could be described as being that of a vigneron. I have taken this into account.

Conclusion

[30] I have taken into account all of the submissions and evidence that has been provided by the parties.

[31] I find that Mr Behrens’ situation has failed to satisfy the requirements of section 312(2) of the Act. Mr Behrens employment was not terminated by Mr Peat when he leased his business to Mr Mills. Also, Mr Behrens was not employed by Mr Mills to work as a vigneron.

[32] As a result, Mr Behrens’ unfair dismissal application must fail because the criteria to identify a transferring employee has not been satisfied.

[33] Mr Mills’ jurisdictional objection is upheld. Mr Behrens’ unfair dismissal application is dismissed.

COMMISSIONER

 1   Respondents written submission in reply received 17 September 2015. Email dated 18 May 2015

 2   Respondents written submission in reply – email from Mr Mills to Gary Peat on 20 May 2015 10:20pm

 3   Respondent written submission in reply – email from Gary Peat to Brains Mills on 20 May 2015 11:39pm

 4   Respondent written submission in reply – email from Gary Peat to Brian Mills on 10 July 2015 8:15pm

 5   Respondent written submission in reply – email from Constant Behrens to Brian Mills on 14 June 2015 8:26am

 6   Respondent written submission in reply – email from Constant Behrens to Brian Mills on 15 June 2015 7:31am

 7   Respondent written submission in reply – email from Constant Behrens to Brian Mills on 16 June 2015 00:58

 8   Respondent written submission in reply – email from Constant Behrens to Brial Mills on 16 June 2015 20:58

 9   [2010] FWAFB 5709

 10   Andison v Woolworths Limited, IRCA, N1522 of 1994, 8 August 1995 per Moore J at pp3-4

 11   [2013] FWC 668

Printed by authority of the Commonwealth Government Printer

<Price code C, PR574184>