Mr John Bevege v Javelin Transport - Kevin Lambert and Paul Scott T/A Resource Management Group

[2015] FWC 1471

[2015] FWC 1471

FAIR WORK COMMISSION

DECISION

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

Mr John Bevege
v
Javelin Transport - Kevin Lambert & Paul Scott T/A Resource Management Group
(U2013/7321)

DEPUTY PRESIDENT ASBURY BRISBANE, 12 MARCH 2015

Application for relief from unfair dismissal.

[1] This decision relates to an application filed in the Fair Work Commission (the Commission) by Mr John Bevege (the Applicant), pursuant to s.394 of the Fair Work Act 2009 (the Act). The application alleges that the Applicant was unfairly dismissed from his employment, by Javelin Transport - Kevin Lambert & Paul Scott T/A Resource Management Group (the Respondent/Javelin Transport).

[2] This matter has had a lengthy and unfortunate history before the Commission, mostly as a result of the Respondent’s conduct in dealing with this matter. It is necessary to recount in detail the history of this matter.

Background

[3] The application was filed on 8 March 2013. The application stated that the Applicant commenced employment for the Respondent on 15 March 2010. The application stated that the Applicant was notified of his dismissal, and the dismissal took effect on 22 February 2013.

[4] The application was served upon the Respondent by the Commission on 21 March 2013. A notice of listing, listing the matter for conciliation, was also issued at this time.

[5] On 10 April 2013, Mr Kevin Lambert contacted the Commission’s unfair dismissal branch and advised that he was unavailable for the listed conciliation and that the named Respondent was not the employer of the Applicant. During this telephone call Mr Lambert refused to provide a contact telephone number to the Commission. Mr Lambert subsequently wrote to the Commission in the following terms:

“Javelin Transport P/L - Kevin Lambert is not John Bevege’s employer (sic)

Resource Management (Qld) P/L is John’s employer (sic)

John Bevege’s pay slips have the employers (sic) name and ABN printed on them

I have had no contact with John Bevege since he went on Workers Compensation (sic) and I have no idea of John’s current address (sic)”

[6] Mr Lambert signed the letter as Kevin Lambert under the business name of Javelin Transport Pty Ltd.

[7] Mr Lambert requested that conciliation in the matter be adjourned to a later date. This request was granted and conciliation proceeded on 29 April 2013 but was unable to be resolved. The matter was referred for arbitration and consideration of the jurisdictional matter raised by Mr Lambert that Javelin Transport was not the employer of the Applicant.

[8] The matter was allocated to another Member of the Commission for consideration of the jurisdictional matter raised by the Respondent. The matter was listed for conciliation/mention on 11 July 2013.

[9] Between 29 April 2013 and 11 July 2013 Mr Lambert contacted the Commission on three occasions reasserting the jurisdictional objection in relation to the matter. On each occasion Mr Lambert was advised that the matter would be before a Member of the Commission for consideration of his jurisdictional objection.

[10] Directions were issued on 11 July 2013 directed to both parties. The parties were directed to file material in response to the application and further the Respondent was directed to file material in relation to its knowledge of the Applicant’s dismissal as well as corporate records as to who the proper Respondent ought to be and why.

[11] On 1 and 25 July 2013, the Commission received two emails from two individuals in support of the Applicant’s application. Those emails are relatively brief in nature. On 29 August 2013 the Applicant filed a handwritten statement by fax.

[12] The Respondent did not file any material in response to the Directions of 11 July 2013.

[13] On 4 September 2013 I took carriage of the matter. On 13 September 2013 correspondence was sent to all parties, including the email address previously used by Mr Lambert, to advise that the matter would be listed for a determinative conference to determine:

“...the jurisdictional issue raised by the Respondent (true identity of the employer) and also the substantive merits of the Applicant’s unfair dismissal application.”

[14] The correspondence drew the parties’ attention to s.600 of the Act which provides:

“600 Determining matters in the absence of a person

The FWC may determine a matter before it in the absence of a person who has been required to attend before it.”

[15] The parties were put on notice that failure to attend could result in the application being dismissed or an Order for remedy being issued in the Applicant’s favour.

[16] Also on 13 September 2013 Mr Lambert corresponded with the Commission using a new email address. Mr Lambert advised:

“Please note that John Bevege has not been dismissed and the reason he is not working at Javelin Transport has been outlined in a letter from his Solicitor.

I have attached documents which relate to this matter.”

[17] Attached to this correspondence were a number of attachments including:

● A Notice of claim against Javelin Transport Pty Ltd made by the Applicant;
● A letter from Ms Sarah Coote, a Director of Javelin Transport Pty Ltd, again restating the Respondent’s jurisdictional objection;
● A Form F3 in relation to an unfair dismissal application made by another employee, not the Applicant; and
● Submissions in relation to an unfair dismissal application made by another employee, not the Applicant.

[18] The material in relation to the other employee’s application was in the name of Resource Management (Qld) Pty Ltd with a contact person of Mr Paul Scott.

[19] The Hearing proceeded on 18 October 2013. The Applicant attended the Hearing but the Respondent did not. The Applicant gave evidence under oath. Evidence was also given in support of the Applicant by Mr Todd Palmer, who stated that he was formed employed by the Respondent. At the conclusion of the Hearing I indicated that I would cause searches to be conducted of the Australian Securities and Investment Commission registers in relation to companies and business names and would issue my decision in relation to the true identity of the Applicant’s employer in due course.

[20] On 29 October 2013 Mr Lambert wrote to the Commission by email with the subject line “Transcript U2013/7321”. Mr Lambert stated:

“I have read your report regarding Mr John Bevege (2013/7321) and my comments are:-
John Bevege has not been terminated by Javelin Transport. All he wants is money as his Solicitor is suing Work Cover
as he will never work again.
The comment made by Mr Todd Palmer were false as he has never been Dispatch Manager as claimed by Mr Bevage.
Mr Palmer started work for Javelin Transport in 2003 as Sales Manager and then 2006 as he became General Manager in control of the company.
I have enclosed paperwork that shows the positions held and covered by Mr Palmer.
His duties covered many things from signing cheques, paying wages, holdiays for all the staff together with handling all insurance paperwork.
For these duties he was paid $ 104000.00 yearly plus a new vehicle including all running costs and received a cash bonus of $ 5000 each year of his service.He is not being truthful as he has handled 14 employees and 6 sub-contractors and knows that Javelin does not pay Payroll Tax.
I have changed the name of the company 4 times and no staff or supplies have not been paid or lost entitlements.
Mr Palmer walked out of Javelin Transport on 08/12/12 after cleaning out all personal belongings and shredded most paperwork that had his name on it the previous day.
Sarah Coots is not in a relationship with Mr Paul Scott and Mr Scott has no part of Javelin Transport as well as myself he has no part of Resource Management.
I feel that this information is relevant to the hearing.” (errors and formatting in original)

[21] On 10 January 2014 I issued a decision 1 in relation to the Respondent’s objection on the basis that it was not the employer of the Applicant. In that decision I stated my conclusions as follows:

“Javelin Transport Pty Ltd carries the onus of establishing, on the balance of probabilities, that it is not the employer of Mr Bevege. Javelin has not complied with Directions of the Commission and has not provided evidence upon which I could be reasonably satisfied that its jurisdictional objection should be upheld. Notwithstanding the failure of Javelin to provide any evidence to support its contentions, I have given consideration to material obtained from ASIC searches and to material filed by Resource Management in other proceedings in an attempt to make sense of conflicting statements made by various persons in these proceedings.

The assertion by Ms Coote in these proceedings that Javelin Transport Pty Ltd has never employed any staff, appears to be at odds with the statements made by two persons in U2012/1684 asserting that they are employees of that Company.

The intermingling of Directors between Javelin Employment Services Pty Ltd is apparent and gives support to the evidence of Mr Bevege and Mr Palmer about Mr Lambert setting up payroll companies. It is also suggestive of Mr Lambert’s involvement in those payroll companies given that Ms Little was a Director of Javelin Employment Services Pty Ltd at the same time as Mr Lambert and went on to maintain a directorship with Ms Robertson, who then went on to become a Director of Resource Management (Qld) Pty Ltd.

I am also of the view that it is not appropriate to uphold a jurisdictional objection in circumstances where the party raising it does not comply with Directions, puts no material to support the objection before the Commission and fails - without reasonable excuse - to attend a hearing for the purposes of determining that objection. The jurisdictional objection by Javelin Transport Pty Ltd (now Labrador Transport Pty Ltd) is dismissed, and Mr Bevege’s application for an unfair dismissal remedy can now proceed to a hearing.” 2

[22] The matter was brought on for mention on 21 March 2014 with Directions issuing on 9 April 2014 in relation to the substantive matter. The Directions of 9 April 2014 relevantly stated:

“The Respondent should note that it must provide material to support any assertion that the Commission should not deal with the application, and set out the basis upon which such an assertion is made. Email communication will not be accepted for this purpose.”

[23] The Directions set out s.387 of the Act in full and directed the parties to specifically address each matter raised under s.387 of the Act.

[24] The Applicant filed material in response to the Directions. A Hearing was convened on 21 November 2014. The Applicant attended the Hearing, the Respondent did not attend.

[25] The following exchange occurred between the Applicant and the Commission during the Hearing:

“...what I need you to do is put in some material so I can consider what, if any, compensation I can award. I need you to put in some material telling me in the period between your dismissal what have you earned from your workers compensation payments, what payments have you received and what was your weekly pay at the point you were dismissed?---Okay.

You need to put that in a statutory declaration?---Okay, I will do that.

All right? Then we will serve that on Mr - - -?---Lambert.

Mr Lambert and give him an opportunity to respond and if he doesn’t respond I will have another hearing and we will go from there, okay?---Okay. No worries.” 3

[26] No further material was filed by the Applicant.

[27] On 17 February 2015 I caused correspondence to be sent to the Applicant in the following terms:

“I refer to the matter above and the Hearing before Deputy President Asbury of 21 November 2014.

At the conclusion of that Hearing the Deputy President directed to you file some material in relation to your earnings post-dismissal including any workers’ compensation payments and evidence as to the rate of your pay at the time you were dismissed. You agreed that you would file material accordingly.

To date, no further material has been filed to enable to the Deputy President to consider in what remedy to Order, if any.

The Deputy President directs you to file a statutory declaration or affidavit setting our all earnings since your dismissal to the present date (including workers’ compensation or other Centrelink payments). You must also include evidence as to your exact earnings with the Respondent immediately prior to your dismissal; you may wish to file a payslip, bank statement or some other document evidence your earnings with the Respondent. You must file this material by no later than close of business on Wednesday, 25 February 2015.

Following receipt of this material the Deputy President will provide the Respondent an opportunity to respond.

If no further material is filed the Deputy President may issue a decision dismissing the application or a decision in which no remedy is ordered.”

[28] This correspondence was sent by express post through Australia Post. The tracking number reveals that it was delivered to the address recorded on 23 February 2015. As at the date of this decision, no further material has been received from the Applicant.

Relevant Legislation

[29] The application has been made pursuant to s.394 of the Act, which provides as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[30] Prior to considering the merits of the matter the Commission must decide those matters prescribed by s.396 of the Act as follows:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[31] There is no dispute that the application was filed within the time period prescribed. The Commission’s file indicates that the application was filed on 8 March 2013. The originating application stated that the dismissal took effect on 22 February 2013. I am satisfied that the application was made within the period required in s.394(2) of the Act.

[32] The Respondent has not raised any objection to the application on the basis of those matters set out in s.396(c) and/or (d) of the Act, being that the dismissal was consistent with the Small Business Fair Dismissal Code, or was a case of genuine redundancy. The Respondent has not raised that it was a Small Business for the purposes of the Small Business Fair Dismissal Code or provided any material to the Commission in relation to the number of persons it employment at the relevant time. Similarly, the Respondent did not rely upon a reason of a genuine redundancy in the Applicant’s dismissal. There is no basis to find that the Small Business Fair Dismissal Code applies or that the dismissal was a case of genuine redundancy.

[33] A person is protected from unfair dismissal, at a time, if that person satisfies those matters prescribed by s.382 of the Act, 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.”

[34] There is no dispute between the parties that the Applicant had completed the minimum employment period and was not a high income.

[35] The Commission is satisfied, on that basis, that the Applicant was a person protected from unfair dismissal at the time of dismissal.

[36] The Applicant alleged that he has been unfairly dismissed within the meaning of s.385 of the Act which states as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[37] There is no dispute that the Applicant is a person who has been dismissed. Those matters in ss.385(c) and (d) do not arise.

[38] The Applicant has alleged that his dismissal was harsh, unjust or unreasonable. The Applicant sought compensation in lieu of reinstatement. In considering whether the Commission is satisfied that a dismissal was harsh, unjust or unreasonable the Commission must take into account those matters specified by s.387 of the Act, as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Summary of Applicant’s Submissions and Evidence

[39] The Applicant submitted that he commenced employment with “Javlin Transport Pty Ltd” formerly known as “Javelin Transport T/A Resource Management Group - Kevin Lambert & Paul Scott” in March 2011 as a Heavy Hauler Truck Driver. 4 The Applicant stated that “Javlin” is owned and operated by Mr Kevin Lambert.

[40] The Applicant stated that Mr Lambert “required a lot from the drivers he employed and would often engage in heavy verbal insults and abuse if he was less than satisfied with a person’s performance”. 5 The Applicant stated that he was often “in the firing line”6 of Mr Lambert’s verbal insults and abuse. The Applicant accepted that a certain level of banter was to be expected in the industry but said that the language used by Mr Lambert was beyond that which could be considered appropriate.

[41] The Applicant did not give specific evidence as to any one occurrence of Mr Lambert’s inappropriate language. In this regard the Applicant stated:

“It is not possible to recount the dates on which these verbal insults and abuse occurred as it happened on too many occasions to remember. I would just try to get above it, get on with the job and would do what I could to avoid any face to face contact with Mr Lambert.” 7

[42] On 8 January 2013 the Applicant stated that he suffered an injury while at work. The Applicant stated that at 10:15am he injured his back when he fell out of a truck having caught his foot on a piece of plastic on the floor of the truck. The Applicant stated that he was to drive a 10 tonne Mac truck being the only Mac truck owned by the Respondent. The Applicant stated that the accident occurred at the premises of another company at which he was delivering supplies.

[43] This particular truck has three steps on the driver’s side. After stopping the truck and applying the air brakes, the Applicant stated that while trying to descend onto the first step his right foot became caught on a piece of plastic edging on the floor of the truck. The edging was there to secure the mat to the floor of the truck and was approximately 1 foot long. The Applicant fell and estimated that the distance of his fall was 3 to 4 feet.

[44] The Applicant stated that he had previously reported to Mr Todd Palmer, Logistics Manager of the Respondent, that the floor of the Mac needed to repair. The Applicant stated that he had been reporting this since approximately October 2012.

[45] Mr Palmer gave a witness statement in relation to the application. Mr Palmer stated that on two occasions the Applicant reported that “the floor of the driver’s side of the Mac truck needed repair as there was a plastic edging that had come loose from the floor mat” 8.

[46] Mr Palmer stated that he reported this to Mr Lambert who responded that due to financial difficulties he could not do anything to repair it. 9 Mr Palmer stated that he referred the Applicant to Mr Lambert in relation to the issue and that he was aware that the Applicant did discuss the issue with Mr Lambert on a number of occasions.10 Mr Palmer stated that it was his understanding that no action was taken to carry out the repairs.11

[47] The Applicant stated that he continued to work following the incident until the afternoon when the pain was too great for him to continue. The Applicant stated that as a result of the incident he suffered a lower back injury with disc protrusion at L4/5.

[48] The Applicant stated that he underwent rehabilitation and was confident of returning to work. In April 2013 the Applicant stated that Mr Lambert called him and stated “we don’t need you anymore”. 12 The Applicant stated he was not provided with a reason for dismissal or given an opportunity to respond. The Applicant submitted that he was dismissed because of his inability to work due to his injury.

Summary of Respondent’s Submissions and Evidence

[49] The Respondent did not file any material in relation to the merits of the application.

Consideration

[50] Section 387 of the Act (extracted above) set out those matters that the Commission must consider in relation to an unfair dismissal application. Each will be considered in turn.

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[51] On the material available before the Commission there was no reason for the Applicant’s dismissal. There was no evidence of any misconduct or under-performance and the Applicant’s evidence in this regard was uncontested.

[52] However, there is insufficient evidence upon which I could reasonably be satisfied that the Applicant was dismissed because of his injury. In the absence of any evidence from the Respondent, I find that there was no valid reason for the Applicant dismissal related to his capacity or conduct.

(b) whether the person was notified of that reason

[53] The uncontested evidence is that the Applicant was not notified of a reason for dismissal.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[54] Given my finding that the Applicant was not notified of a reason for his dismissal it follows that he was not given an opportunity to respond to any reason related to his capacity or conduct.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[55] The uncontested evidence is that there only discussion was a phone call to the Applicant by Mr Lambert. The Applicant was not given any warning of the discussion or the nature of the matters that Mr Lambert wished to discuss with the Applicant. However there is no evidence that there was any unreasonable refusal of a request for a support person to assist the Applicant.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[56] There is no evidence that the Respondent was concerned about the Applicant’s unsatisfactory performance. The evidence of Mr Palmer is that the Applicant was a conscientious worker. The Respondent has not filed any evidence to contradict this evidence and did not attend the Hearing to cross-examine Mr Palmer.

[57] Even if there were concerns relating to unsatisfactory performance there is no evidence about any warning being given to the Applicant.

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[58] There is no evidence before the Commission about the Respondent or the nature of its enterprise. Given the Respondent’s recalcitrance in conducting this matter I am willing to assume that it is unlikely that the Respondent has dedicated human resource management specialists or expertise. However, in the absence of any submissions or evidence from the Respondent about how this would be likely to have impacted on the procedures in effecting the dismissal I do not rely upon that assumption to any great degree.

(h) any other matters that the FWC considers relevant

[59] No other matters were identified by the parties as relevant to the application.

Conclusion

[60] Given the lack of evidence on the part of the Respondent and the uncontested evidence of the Applicant I find that the Applicant’s dismissal was harsh, unjust or unreasonable.

[61] There is no evidence of any process undertaken by the Respondent in relation to the Applicant’s dismissal and no evidence of any reason for the dismissal, whether in relation to the Applicant’s capacity or conduct.

[62] The Respondent’s general refusal to comply with Directions and participate in proceedings before the Commission is unfortunate and has not assisted the Commission, the Respondent or the Applicant. The Respondent’s general correspondence acknowledges that it is aware that the Applicant has injured himself, although the Respondent does not appear to accept that it is a work-related injury and it is unfortunate that an employer would take this attitude towards an employee, whether before the Commission or otherwise.

[63] However, the Commission has had great difficulty in dealing with this matter due to the general lack of material before it in relation to the Applicant’s case. The Commission very clearly directed the Applicant to file material in relation to his earnings pre and post dismissal to enable to the Commission to assess a compensation remedy as reinstatement was not possible. The Applicant has not done so. The Commission has no evidentiary material before it that could found the basis for an order for compensation.

[64] It is also clear, from correspondence sent to the Commission by the Respondent, that it has been aware of Hearings and the outcome of those Hearings in relation to this application. The Respondent has apparently ignored all Directions and failed to avail itself of many opportunities it has been given to put its case to the Commission.

[65] In the circumstances, the Commission provides the Applicant with one final chance to file material in relation to his specific earnings prior to his dismissal and after his dismissal. This material must be in the form of an affidavit and attach to it documentary evidence of any amounts that the Applicant declares as his earnings. This must include either payslips from the Respondent or the Applicant’s bank statements as well as any statements of benefit from Workcover and Centrelink. If the Applicant has earned any income through work, this must also be declared.

[66] The Applicant is to file such material within seven days of the date of this decision. If the Applicant does not comply with this direction the Commission find that the Applicant has failed to prove his case in relation to remedy and the application will be dismissed. The Commission is not blind to the difficulties that the Applicant has experienced in preparing his case but it is not for the Commission to build the Applicant’s case for him. The Commission must determine matters before it according to law on the basis of material placed before it.

DEPUTY PRESIDENT

 1   John Bevege v Javelin Transport T/A Resource Management Group - Kevin Lambert & Paul Scott [2014] FWC 268.

 2   Ibid at [17] to [20].

 3   Transcript PN107 to PN 110.

 4   Applicant’s submissions at paragraphs 2 to 4.

 5   Ibid at paragraph 10.

 6   Ibid at paragraph 11.

 7   Ibid at paragraph 13.

 8   Witness Statement of Mr Todd Palmer at paragraph 9.

 9   Ibid at paragraph 10 to 11.

 10   Ibid at paragraph 13.

 11   Ibid at paragraph 14.

 12   Applicant’s submissions at paragraph 32.

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