Mr Jason Hazlett v Sleipnir High Risk Training Pty Ltd

[2014] FWC 341

[2014] FWC 341

FAIR WORK COMMISSION

DECISION

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

Mr Jason Hazlett
v
Sleipnir High Risk Training Pty Ltd
(U2013/9055)

DEPUTY PRESIDENT ASBURY BRISBANE, 14 JANUARY 2014

Application for unfair dismissal remedy - Jurisdiction.

[1] Mr Jason Hazlett applies under s.394 of the Fair Work Act 2009 for an unfair dismissal remedy in respect of his dismissal by Sleipnir High Risk Training Pty Ltd (Sleipnir). The application is met with a jurisdictional objection on the grounds that Sleipnir was not Mr Hazlett’s employer.

[2] The objection is set out in a form F3 - Employer’s Response to Application for Unfair Dismissal Remedy, signed by Dr June Dunleavy, who states that she is the HR Manager for Weeping Angel Resources Pty Ltd and asserts that:

● Mr Hazlett was not employed by Sleipnir Pty Ltd;
● Mr Hazlett was employed by Pegasus Vision Crew Pty Ltd (Pegasus) and was “supplied” to Sleipnir;
● Pegasus is no longer trading; and
● Mr Hazlett failed to turn up to work for three days after advising on 10 April 2013 that he had no money for petrol.

[3] Directions were issued requiring the parties to file and serve outlines of submissions, witness statements and other evidentiary material, and to advise whether they wished to attend a hearing or to cross-examine any witness. Neither party advised that it wished to attend a hearing or to cross-examine a witness, and accordingly, the matter was determined on the basis of the material on the file.

Consideration

[4] According to a letter offering employment and a signed employment contract on the file, Mr Hazlett commenced employment with Pegasus on or around 17 September 2012, in the capacity of Trainer. The employment contract states that Mr Hazlett will be employed at an address at Darra, but may be required to work at other locations and facilities. The contract also states that remuneration is paid on a weekly basis with the pay week ending on Friday, and that pays will normally be processed by 5.00 pm on the Friday of the following week.

[5] At some point that I am unable to determine, Mr Hazlett was sent to work at the premises of Sleipnir at Burleigh Heads. Mr Hazlett states that at this point, he was told that he worked for Sleipnir and not Pegasus. Mr Hazlett further states that around Christmas 2012, he was told by Mr Phil Statham that Pegasus had been dissolved and no longer existed and Sleipnir would take over all of the work being done by Pegasus. This was supported by statements from Mr Cameron Brown and Mr Robert Weier, who both said that early in 2013, they were told that Pegasus had collapsed and that they were now working for Sleipnir.

[6] Mr Hazlett tendered a Group Certificate for the period from 1 April 2013 to 30 June 2013, indicating that he was paid a gross amount of $1250.00 by Sleipnir Pty Ltd and that the tax withheld was $263.00. Mr Hazlett also tendered a letter dated 12 April 2013 signed by Dr Dunleavy in the capacity of Human Resources and Project Manager for Pegasus Vision Crew, terminating his employment, on the grounds that he did not attend work on Wednesday 10 April 2013 and had not subsequently attended work. The letter asserts that Mr Hazlett has abandoned his employment and that his employment is immediately terminated.

[7] Mr Hazlett responded to the termination letter by email dated 15 April 2013, stating that he was unable to attend work from 10 to 12 April 2013 because he had not been paid his wages and was unable to purchase fuel for his car. The email further stated that Mr Hazlett’s wages should have been paid by Wednesday of each week and that he has not been paid superannuation contributions, or travel allowance. Further, Mr Hazlett states that he has not been provided with an employment separation certificate or information about his termination payments. The email concludes by questioning why Mr Hazlett is being dismissed by Pegasus, when he is employed by Sleipnir.

[8] A statement was provided by Mr Philip Statham in support of the jurisdictional objection. Mr Statham states that he is the sole director of Sleipnir and upon assuming control of that Company he entered into a memorandum of understanding with Pegasus in relation to the provision of services including human resource management and the provision of qualified trainers and assessors. In December 2012, a company called More Skills Australia ceased trading and it was agreed between Sleipnir, Pegasus and the liquidator of More Skills Australia, that its students would be moved to the Sleipnir site to complete their training. Mr Hazlett was supplied to Sleipnir by Pegasus as an additional trainer and assessor, at the Burleigh site of Sleipnir.

[9] Pegasus ceased trading on 31 March 2013, and a meeting of all staff on the Sleipnir site was called by Mr Statham, during which he stated that the position with Pegasus was unclear but that he would try to find work within Sleipnir for anyone who wants it. At that stage, Mr Statham understood that Pegasus was continuing to pay for its staff. At or around this time, Mr Hazlett and other employees were approached to enter new arrangements with Sleipnir but Mr Hazlett had not signed his letter of offer at the time he abandoned his employment.

[10] Mr Statham also stated that on 11 October 2013 Sleipnir was placed into liquidation, and tendered an Order of the Supreme Court of Queensland that Sleipnir Pty Ltd ACN 148 975 366 be wound up by the Court in insolvency. That Order relates to an application by ACN 062 778 714 Pty Ltd (In Liquidation) (Formerly More Skills Australia Pty Ltd ACN 062 778 714).

[11] In the Form F3 lodged in response to Mr Hazlett’s application for an unfair dismissal remedy, it is stated that an ASIC search establishes that Sleipnir Pty Ltd “does not exist”. I have caused several ASIC searches to be conducted, which establish that Mr Statham is a Director of Pegasus Vision Crew Pty Ltd (ACN 116 497 691) - the entity that provided the response to Mr Hazlett’s application and which initially employed Mr Hazlett - and Weeping Angel Resources Pty Ltd (ACN 162 870 251). The extract in relation to Pegasus Vision Crew Pty Ltd ACN 116 497 691 indicates that on 9 August 2013 a Liquidator was appointed. The extract in relation to Weeping Angel Resources Pty Ltd ACN 162 870 251, indicates that the Company applied for registration on 15 March 2013. There are also a number of other companies with Sleipnir in their titles.

[12] An ASIC search for Sleipnir High Risk Training Pty Ltd indicates that Sleipnir High Risk Training is a registered business name of Sleipnir Pty Ltd (ACN 148 975 366). An internet search indicates that there is an entity named Sleipnir High Risk Training currently offering courses on the Gold Coast and in Gladstone. A link on the booking site for Sleipnir High Risk Training to shrt.com.au leads to an entity named Arariel Pty Ltd trading as Specialised High Risk Training at Burleigh Heads, which offers rigging, dogging and crane operation courses. Mr Statham is listed as a Director of Arariel Pty Ltd.

Conclusions

[13] I do not accept that Sleipnir Pty Ltd has discharged its onus to establish that it is not the employer of Mr Hazlett. I am also of the view that it is more probable than not that the entity that employed Mr Hazlett is still operating under a different name. It is clear that Mr Statham is involved in a number of entities that appear to be related. Pegasus Vision Crew Pty Ltd initially employed Mr Hazlett and he contends that he was subsequently employed by Sleipnir Pty Ltd.

[14] A Response to Mr Hazlett’s application was made by Weeping Angel Resources Pty Ltd. There is a clear link between Sleipnir Pty Ltd and Arariel Pty Ltd through Sleipnir High Risk Training. Mr Statham is a Director of all of these entities and I do not doubt that he will be in a position to defend Mr Hazlett’s unfair dismissal application.

[15] In deciding whether Mr Hazlett abandoned his employment, the issue is whether his employment was terminated at the initiative of the employer. Mr Hazlett’s written contract of employment does not contain a provision in relation to abandonment of employment. There is insufficient evidence upon which I could conclude that Mr Hazlett’s failure to attend work was a breach of his contract of employment so that his employment was terminated by abandonment. In my view, Mr Hazlett’s employment was terminated at the initiative of the employer, as evidenced by the termination letter sent to him on 12 April 2013.

[16] Further, even if Mr Hazlett did repudiate his employment contract by failing to attend work for the period from 10 to 12 April 2013, the termination letter constitutes acceptance of that repudiation so that the termination of Mr Hazlett’s employment was at the initiative of the employer.

[17] The jurisdictional objection is dismissed, and Mr Hazlett’s application will now proceed to a further hearing.

DEPUTY PRESIDENT

Final written submissions:

30 October 2013.

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