Mr David Selvaratnam v Vistavision Pty Ltd T/A Access Antennas and Satellites
[2015] FWC 5499
•17 AUGUST 2015
| [2015] FWC 5499 |
| FAIR WORK COMMISSION |
EX-TEMPORE DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr David Selvaratnam
v
Vistavision Pty Ltd T/A Access Antennas and Satellites
(U2015/631)
COMMISSIONER BULL | SYDNEY, 17 AUGUST 2015 |
Application for relief from unfair dismissal, ex-tempore decision, jurisdictional objection upheld, Non-constitutional Corporation, application dismissed
[1] This matter was heard in Perth on 19 and 20 May 1 and 2015. A further hearing was held on 6 August 2015 to deal with the jurisdictional objection raised by the respondent. At the conclusion of the jurisdictional issue proceedings, the matter was adjourned, where I advised the parties that I would hand down my decision on transcript that day. This is the published version of the decision in transcript edited for style and clarity.2
Background
[2] This is an unfair dismissal application filed on 16 February 2015 by Mr David Selvaratnam (the applicant) alleging that he was unfairly dismissed from his employment on 29 January 2015. Mr Trevor Hoffman, a lawyer as defined in section 12 of the Fair Work Act 2009 (the Act) sought leave to assist the applicant in the hearing, particularly with cross examination. Leave to appear was declined under section 596(2) of the Act on the basis that the respondent was unrepresented and that the applicant had demonstrated no lack of competence in making his application. Mr Hoffman remained at the bar table and assisted the applicant, but not as an advocate. At later hearings Mr Selvaratnam appeared alone.
[3] The application form (F2) names Access Antennas and Satellites (Access Antennas) as the legal name of the business and Vistavision Pty Ltd (Vistavision) as the trading name of the business. The F2 provides the ABN 53101879869 of Vistavision. Subsequently, during the course of the proceedings, the applicant has maintained that his employer is Vistavision and not Access Antennas. The application has proceeded on the basis that Vistavision is the respondent employer, as alleged by the applicant.
[4] Vistavision (the respondent) was represented by its Director Mr Halden McDonald, who is also a Director of Access Antennas. Mr McDonald submitted that the applicant’s true employer was Access Antennas and Satellites ABN 43097615872 which is the business name of a sole trader, being Halden McDonald. The business is not incorporated. The respondent submits that the Fair Work Commission (the Commission) has no jurisdiction to hear an unfair dismissal application involving an unincorporated employer.
[5] The respondent states at 1.7 in his Employer Response Form (F3) (which was not provided until day two of the hearing) that at the time of termination, he employed 7 employees. This was not referred to during the hearing. However, if this is correct, the matter would require the merits of the application to be dealt with in accordance with the Small Business Fair Dismissal Code as per section 385(c) of the Act.
Relevant Legislation
[6] Part 3-2 - Unfair Dismissal of the Act states at s. 380 that an employee and employer means a national system employee and national system employer respectively. These terms are defined in ss. 13 and 14 of the Act as follows:
“Section 13 Meaning of National System Employee
13 A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.
Section 14 Meaning of National System Employer
14(1) A national system employer is:
(a) a constitutional corporation, so far as it employs, or usually employs, an individual; or
(b) the Commonwealth, so far as it employs, or usually employs, an individual; or
(c) a Commonwealth authority, so far as it employs, or usually employs, an individual; or
(d) a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:
(i) a flight crew officer; or
(ii) a maritime employee; or
(iii) a waterside worker; or
(e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or
(f) a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.”
[7] The jurisdiction of the Commission in respect of an unfair dismissal application is therefore restricted to where the employee is employed by a national system employer which must be a constitutional corporation. An extended meaning of national system employer to cover unincorporated employers applies where a State has before 1 July 2009 referred its powers to the Commonwealth for the purposes of paragraph 51 (xxxvii) 3 (see s. 30B of the Act). Unlike some other states4, the State of Western Australia has not referred its powers under s. 30B.
[8] If the applicant in this case was an employee of Access Antennas at the time of his dismissal, then the applicant and respondent would not meet the definition of national system employee and employer respectively and the Commission would be without power to deal with the application.
Multiple applications.
[9] Division 3 - Preventing multiple actions of Chapter 6 Part 6-1 of the Act, at s.725 in conjunction with s.732 provides that a person who has been dismissed must not make an unfair dismissal application under a law of a State or Territory at the same time they are pursuing an unfair dismissal claim in this Commission. This does not apply where a State application has been withdrawn by the applicant as per s.732(1)(b).
[10] On 12 March 2015, the applicant filed an ‘unfair dismissal’ application with the Western Australian Industrial Relations Commission (WAIRC) - U48/2015, it is understood that a conciliation conference has been held in relation to that matter. The application named Halden McDonald as the employer and not a constitutional corporation. Mr McDonald stated that the unfair dismissal application should be heard in the WAIRC.
[11] On the first day of the hearing, 19 May 2015, the WAIRC application was still on foot and the applicant was advised of this difficulty by the Commission. Following a short adjournment the applicant advised that he had discontinued his application in the WAIRC and the matter in the Commission continued 5.
Identity of Employer
[12] Despite his application filed with the WAIRC and now withdrawn, the applicant insisted that he was employed by Vistavision Pty Ltd being a constitutional corporation and a national system employer. On this basis, the applicant argued that jurisdiction existed for the Commission to hear and determine his unfair dismissal application.
[13] Once the question of jurisdiction is raised by a party, it is incumbent upon the Commission to determine the issue of jurisdiction before embarking any further 6. If the Commission has no jurisdiction, it ought not to proceed further. Jurisdiction cannot be conceded or conferred on a tribunal when it does not have it7. In this matter, a challenge to the Commission’s jurisdiction has been made and the Commission must therefore deal with it. I have not assumed that the applicant or respondent has an onus to establish or demonstrate an absence of jurisdiction as the issue turns on a matter of fact8.
[14] Both parties relied upon various documents and other miscellaneous material to support their respective positions which are summarised below.
Applicant’s submissions
[15] The applicant gave evidence and tendered a multiplicity of documentation 9 that explained the history of his employment with Vistavision, a company started by his father which dealt with commercial television and satellite distribution systems. In 2008, he relocated from Darwin and commenced as the Senior RF Technician Operations Manager. The company was later sold but he remained employed with Vistavision under the new owner. In 2012 the company was sold again, this time to Mr Halden McDonald who was the Director of Access Antennas and the applicant was retained in his same position. Upon the sale, Vistavision re-located from Bedford in Western Australia to the Access Antennas store in Osborne Park Western Australia.
[16] The applicant states that he was never informed upon the sale of Vistavision that he was to be working for Access Antennas. He was given a new contract to sign which had Access Antennas as the employer 10 which he had refused to sign. The applicant stated that there were many indicia that demonstrated he was an employee of Vistavision, these included the applicant’s:
● day to day business activities conducted on behalf of Vistavision;
● work email being David@Vistavision WA;
● wearing of a shirt with the logo Vistavision;
● lack of knowledge that he worked for Access Antennas and Satellites, as he was never informed as such;
● wages deposited under the name of Vistavision on occasion; and
● workers compensation purchased under the name of Vistavision.
[17] Despite the above, the applicant provided a copy of his 2013-14 PAYG Payment Summaries provided by his accountant which names Access Antennas and Satellites as his employer 11. The applicant to his credit acknowledged that the material may be detrimental to his argument.12
Respondent’s submissions
[18] Mr Halden McDonald, Director of both Access Antennas and Vistavision had not provided the Commission with an employer response or witness statement as required by the directions issued on 1 May 2015. Mr McDonald explained that as there was an unfair dismissal application proceeding in the WAIRC, it was possible that he had confused the filing of responses with the WAIRC as complying with directions of this Commission.
[19] Mr McDonald gave evidence and was cross examined by the applicant.
[20] Mr McDonald stated that the applicant was employed by Access Antennas when he purchased Vistavision. When Vistavision was purchased, Vistavision moved to the office of Access Antennas in Osborne Park Western Australia. The applicant’s immediate manager was employed by Access Antennas. Mr McDonald himself used the email address [email protected] and corresponded with the applicant with the Access Antennas email address.
[21] In respect of the matters raised by the applicant, Mr McDonald stated that the applicant’s work shirt with the Vistavision logo was not provided by Mr McDonald after he had bought the company. Access Antenna shirts were offered to the applicant but he chose not to wear one.
[22] Mr McDonald submitted that he asked the applicant to sign an employment contract under the name of Access Antennas as he wished to cover off on issues of confidentiality. The applicant queried a number of the terms of the contract but never questioned the name of his employer as Access Antennas. Having been shown the written employment contract, I must acknowledge that Mr Selvaratnam’s reluctance to sign the employment contract would appear to be well founded based on some of its terms. For example having to submit to binding arbitration pursuant to the rules of the American Arbitration Association.
[23] Mr McDonald submitted that the applicant did do work on occasions for Vistavision but this was as a result of Vistavision contracting the work to Access Antennas , which did not make him an employee of Vistavision. Mr McDonald acknowledged that on some limited occasions the applicant’s pay was not made by Access Antennas. However, Mr McDonald submitted overwhelming facts and circumstances which indicated that the applicant was not employed by Vistavision. In summary the respondent relied on the:
● Employment Separation Certificate – which named Access Antennas as the employer;
● Unsigned employment contract in the name of Access Antennas and Satellites, which was given to the applicant in October 2012 13;
● That the signing of the employment contract dispute did not concern the identity of the employer;
● Payslips naming Access Antennas and Satellites as the employer 14;
● Warning letters of 21 and 23 January 2015 from Access Antennas and Satellites which included its ABN.
● The applicant’s ‘Group Certificates’ stated Access Antennas and Satellites as the employer 15
● The applicant’s Tax File declaration nominates Access Antennas as the employer
● The applicant’s wages were paid by Access Antennas and Satellites
● The weekly time record completed by the applicant was completed under the name of Access Antennas 16
[24] Neither party had a copy of the applicant’s Tax File Declaration which Mr McDonald relied upon with other documentation to demonstrate that the applicant was employed by Access Antennas. Mr McDonald attended the Australian Taxation Office (ATO) in Perth on the first hearing day to obtain a copy. He was advised what was contained in the declaration but was not able to be provided with a copy nor could it be faxed or emailed. He was advised that it could only be posted out and that this would take up to 28 days but it would be prioritised.
[25] The Commission contacted the ATO and was advised by a Ms Hargans that the posting out of the declaration was undertaken by the ‘back of service team’ who could not be contacted as they did not have a telephone number. As a result of the ATO processes the matter was adjourned from 20 May 2015 to enable the parties and the Commission to consider the declaration when received. Subsequently, Mr McDonald states he received the declaration on 13 July 2015, some 7 weeks after the initial request to the ATO was made.
[26] The Tax File Declaration 17 is signed by Mr Selvaratnam on 4 October 2012. However contrary to his evidence on 19 May 201518, Mr Selvaratnam stated on 6 August that he did not recall signing the tax declaration form. Mr Selvaratnam further submitted at the 6 August hearing that he recalled signing it before Mr McDonald had entered any details on the document.
[27] At Section 3B (which is to be completed by the payer) of the declaration, the form asks: “What is your legal name or registered business name (or your individual name if not in business)? The response provided states “Access Antennas & Satellites”. The declaration is dated 20 October 2012, and signed by Mr McDonald.
Conclusion
[28] The applicant’s unfair dismissal application states that he commenced work with the respondent on Monday 15 October 2012; this was when the respondent Vistavision was purchased by Access Antennas and Satellites. This of itself is at least recognition of a change of employer as the applicant states he commenced employment with Vistavision Pty Ltd in 2008.
[29] An employer must have the capacity to enter into legal contracts, as only legal entities can enter into contractual arrangements. In respect of employers, this will usually be in an individual person’s name (a sole trader), the names of one or more persons in a partnership, a proprietary limited company name or the name of an incorporated association. A trading name, a business name or the name of a trust (in most cases) is not a legal entity and a contract cannot be made solely under these names. As a trading name is not a legal entity, it cannot be named as the employer in an employment contract.
[30] In this situation, the employer cannot be, as the respondent initially submitted, Access Antennas, which is simply a business name under which the owner of the business trades. It would seem that the respondent should name the true employer as Halden McDonald trading as Access Antennas and Satellites. This point was conceded by Mr McDonald at the hearing on 6 August 2015.
[31] In considering the evidence as a whole, it appears that at least in the mind of Mr McDonald, the respondent intended the applicant to be an employee of Halden McDonald trading as Access Antennas and Satellites. This is evidenced by an abundance of supporting documentation including the:
● Employment contract provided to the applicant dated 1 October 2012 19;
● Taxation declaration signed by Mr McDonald on 20 October 2012 20;
● Applicant’s pay slips 21; and
● Employment Separation Certificate 22;
● The applicant’s PAYG payment summary 23;
● Correspondence to the applicant on 21 and 23 January 2015 24;
● Weekly time record 25; and
● Wages being paid by Access Antennas and Satellites (in the main) 26.
[32] Despite all the supporting documentation that indicated that the applicant’s employer was Access Antennas and Satellites, Mr Selveratnam never queried this. It was not until the applicant filed his unfair dismissal claim in this Commission that an issue was raised as to the true identity of his employer. This is demonstrated no more sharply in the parties’ dispute over the signing of the applicant’s new employment contract, where despite all the issues in dispute, Access Antennas being named as the employer was not raised as an issue.
[33] As discussed above, the unfair dismissal application was filed against Access Antennas and Satellites as the legal name of the business, although the applicant has now sought to amend this to Vistavision Pty Ltd. Although Mr Selvaratnam may have preferred and believed that he was employed by Vistavision, this does not change the legal status of the employer. The applicant was advised in 2012 that Access Antennas was his employer and did not take issue with this. All subsequent documentation produced was consistent with Access Antennas and Satellites being the employer.
[34] I am not satisfied on the evidence submitted and submissions made by both parties that the true employer was, as the applicant submits, Vistavision Pty Ltd, but rather, Halden McDonald a sole trader trading as Access Antennas and Satellites. That being the case, the Commission is without jurisdiction to hear the application. Therefore the application for an unfair dismissal remedy must be dismissed.
COMMISSIONER
Appearances:
Mr David Selveratnam on his own behalf
Mr Halden McDonald Director, for the respondent
Hearing details:
2015
Perth
19 and 20 May
6 August
1 The hearing was adjourned to allow the respondent to obtain documentation in support of his jurisdictional objection
2 See extra curial publication (1997) 9 Judicial Officers’ Bulletin Gleeson CJ at 25
3 Section 51(xxxvii) of the Constitution provides a mechanism through which state parliaments can refer powers over matters to the Commonwealth Parliament. The Commonwealth Parliament is consequently provided the power to make laws with respect to those referred matters, but only for those states from which the matter is referred.
4 For example on 25 September 2009, at a meeting of the Workplace Relations Ministerial Council the NSW government signed an agreement to refer its powers to the Commonwealth for the purposes of creating a national industrial relations system. The state parliament of NSW then enacted the Industrial Relations (Commonwealth Powers) Act 2009 No 115 to give legislative effect to this agreement.
5 Transcript PN243
6 See Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398 at 415 per Griffith CJ and at 428 per Barton J; R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54 at 90 per Fullagar J; R v Fulham, Hammersmith and Kensington Rent Tribunal; Ex parte Zerek [1951] 2 KB 1 at 10 per Devlin J; R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 at 215 per Gibbs J; Re Boulton; Ex parte CFMEU (1998) 85 IR 468 at [22] per Kirby J; Bray v F Hoffman-La Roche Ltd (2003) 200 ALR 607 at [239] per Finkelstein J and Old UGC Inc v Industrial relations Commission of New South Wales (2006) 225 CLR 274 at [51] per Kirby J.
7 SGS Australia Pty Ltd v Taylor (1993) 73 WAIG 1760
8 Trevor David Hoffman v Perth Mobile GP Services Ltd (2013) WAIG 1488
9 Exhibit A1
10 Exhibit A7
11 Provided on 21 May 2015 via email see also Exhibit R2 and A2
12 Ibid
13 Exhibit A7
14 Exhibit R1
15 See Exhibit A2
16 Exhibit R3
17 Exhibit R4
18 Transcript PN889
19 Exhibit A7
20 Exhibit R4
21 Exhibit R1
22 Exhibits A3,R1
23 Exhibit R2
24 Exhibit A1
25 Exhibit R3
26 Exhibit A12
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