Mr Peter Horwath v Bundaberg Security Pty Ltd

[2014] FWC 1087

[2014] FWC 1087

FAIR WORK COMMISSION

DECISION

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

Mr Peter Horwath
v
Bundaberg Security Pty Ltd
(U2013/14134)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 19 FEBRUARY 2014

Application for relief from unfair dismissal - jurisdiction - not the employer.

[1] This matter concerns an application by Mr Peter Michael Horwath (“the Applicant”) under s.394 of the Fair Work Act 2009 (“the Act”) in respect of which a remedy is sought in relation to his alleged dismissal, allegedly by Bundaberg Security Pty Ltd (“the alleged employer”).

[2] The alleged employer contends that it is not the legal employer for the purposes of the application referred to above. Therefore, it claims, the application cannot proceed as the Applicant’s claims, and indeed the application itself, are not directed at the employer who has by its initiative dismissed the Applicant from its employment.

[3] The Applicant, however, has pressed to the contrary.

[4] The Applicant contends that payments were made to him by Bundaberg Security Pty Ltd, the alleged employer, over the period up until September 2013 and that it continued to be his employer.

[5] The alleged employer contends that it employed the Applicant as a casual security guard on 24 November 2008. The alleged employer claimed that, in April 2013, it made the decision to engage a contractor for its work in the Harvey Bay/Maryborough areas. On or about 30 April 2013, a meeting was held with all employees (numbering some 20 or so), including the Applicant, where the alleged employer communicated the changes to the employment arrangements.

[6] In effect, the alleged employer contends that at that time it indicated to those assembled, including the Applicant, that it would be ceasing to be their employer after 12 May 2013. Whilst it would remain a head contractor, the employees could instead (if they so chose) become employees of the new contractor.

[7] The new employer of the employees (and the new contractor to Bundaberg Security Pty Ltd) was said to be Top Shelf Security Pty Ltd t/a Quick Response Group Queensland (“the new employer”). The new employer offered each of the employees’ employment which was to commence on Monday 13 May 2013.

[8] The employees were not transferred, as it were, to the new employer. Their new employment was conditional, of course, on whether the employees of the alleged employer wished to take up employment with the new employer.

[9] The alleged employer contends that the Applicant ceased to be an employee on 12 May 2013. The alleged employer provided PAYG payment summaries in respect of the period of employment of the employee.

[10] The evidence in this regard was given by Ms Sharlene Hodgskin, who is the administration manager for the alleged employer.

[11] Ms Hodgskin provided an affidavit to these proceedings in which she declared that following the meeting of (approximately) 30 April 2013 she prepared the paperwork in relation to the termination of the casual employment of the Applicant. One of the PAYG payment summaries refers to the date of the conclusion of the employment with the alleged employer and the monies earned at that point. That summary refers to the pay period 1 July 2012 to 12 May 2013, and indicates that during that period the gross payments paid to the Applicant amounted to $46,838.

[12] Ms Maxine Sanders is the business proprietor of the new employer. She provided a duly executed affidavit which attested as follows (in summary):

• Ms Sanders’ evidence corroborated that of Ms Hodgskin;



• Ms Sanders declared that she entered into discussions with the alleged employer in early 2013 in relation to performing services as a contractor on its behalf;



• These discussions arose because the alleged employer was facing financial pressures and looking to restructure its business; and



• As a contractor, the new employer intended to seek to employ a number of the employees of the alleged employer so that it could provide the services for which it was contracted.

[13] To this end, Ms Sanders further declared, a meeting was arranged on 30 April 2013 with Ms Hodgskin, the administration manager for the alleged employer, and its operations manager Mr Ross Thompson.

[14] The meeting was also attended by the staff of the alleged employer. It was there advised that no further casual employment could be directly offered to the employees after 12 May 2013. It was indicated however that the affected employees of the alleged employer would be at liberty to make application to work with the new employer to provide subcontracted services on behalf of the alleged employer.

[15] Ms Sanders stated that one of the employees of the alleged employer who attended the meeting was the Applicant. She recalls the Applicant approaching her in relation to working for the new employer and that she had agreed that she would offer him employment.

[16] The Applicant was said (by Ms Sanders) to have completed a tax file declaration form on 13 May 2013, along with other employment documentation. Ms Sanders said she signed and dated the declaration and provided the same to the Australian Taxation Office. Ms Sanders stated that the Applicant “ought to be well aware of his employment status”, as a consequence.

[17] After 13 May 2013, the Applicant - according to Ms Sanders - supplied security services to the new employer whilst it acted as a contractor for the alleged employer.

[18] Ms Sanders stated that in September 2013 it became apparent that she would need to reorganise various personnel owing to operational changes which arose because of the need to undertake work at the courthouse and TAFE located in Harvey Bay.

[19] These operational changes, according to Ms Sanders, meant that she did not have ongoing work for the Applicant as his role was absorbed by another employee. As a casual employee the Applicant was not formally dismissed but rather the new employer was not able to offer him any ongoing work at the time.

[20] Ms Sanders declared that at the time of the alleged dismissal of the Applicant he was an employee of her business and was not an employee of the alleged employer.

[21] Ms Sanders also tendered bank statements indicating the payments made to the Applicant’s bank account as wages for the period of his employment.

[22] Against this background the Applicant maintains that:

1. He was never dismissed by the alleged employer;

2. He had no letter of dismissal;

3. The alleged employer’s ABN appeared on some of his payslips following the alleged changeover in May 2013;

4. He still wore the uniform of the alleged employer; and

5. The alleged employer had ongoing involvement in the contracts that the new employer was servicing.

[23] In respect of point one and three above, it is clear enough on the Group Certificate that the Applicant ceased being paid by the alleged employer at the time claimed by it. Further, the new employer had evidence of payments through its payroll facility (via the Bank of Queensland). Though the new employer’s payslips included a reference to the alleged employer’s ABN for a short period following the change to the contracting arrangement, this was an administration error arising from the handover of the excel charts from which the payslips were generated. I do not question the evidence in this regard, which was given candidly.

[24] The Applicant seemed to have a recollection that there was an explanation of the financial difficulties facing the employer, and some residual memory of signing a tax file declaration with the new employer.

[25] I would add that I prefer the evidence provided on behalf of the alleged employer (through Ms Hodgskin) and the new employer (through Ms Sanders) as to the sequence of events and exchanges at the meeting at which the details of the transition were discussed. The Applicant’s recollections were unstructured and imprecise by comparison. Indeed, the unqualified and candid evidence of Ms Hodgskin was that she informed those assembled (after some remarks had been directed to her) that, in effect, they were being “f...king sacked.” The point was clear.

[26] As to points four and five, there is no surprise that alleged employer, operating as principal, which continued to be responsible for contract delivery to the relevant sites, exercised influence over the scope of works of the new employer, and that as a contractor to the alleged employer, that the new employer continued to support the (alleged employer’s) brand (by wearing its badges/uniforms).

[27] I do concede, however, that the full explanation for the changes in the alleged employer’s method of operation, and how it would continue to operate in relation to the work the employees would perform in the future, may not have been fully explained, or at least communicated in great detail. This may explain further the Applicant’s confusion about the identity of his employer, to some measure.

Conclusion

[28] The weight of evidence is that the Applicant was an employee of the alleged employer up until 12 May 2013. Thereafter, the Applicant became an employee of the new employer, up until the time at least that he was no longer offered hours for the reasons set out above (and in respect of which I have no reason to question).

[29] An application under s.394 of the Act is directed at the legal employer of the employee who has been dismissed at its initiative. However, in the case of the application currently before me the application is directed at a corporate entity that is not the legal employer of the employee, and has not been since 12 May 2013.

[30] Because of this reason I must dismiss the application for an unfair dismissal remedy.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr P. Horwath, Applicant

Mr G. Ebert, solicitor with Finemore, Walters and Story, for the Respondent

Hearing details:

By video link

2014

13 February

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