Mr Tom Tomic v Integrity Developments
[2015] FWC 41
•9 JANUARY 2015
| [2015] FWC 41 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Tom Tomic
v
Integrity Developments
(U2014/11683)
COMMISSIONER CLOGHAN | PERTH, 9 JANUARY 2015 |
Application for relief from unfair dismissal - jurisdictional objection - out of time - applicant not an employee - applicant not dismissed - minimum period of employment.
[1] On 14 August 2014, Mr Tom Tomic (Mr Tomic or Applicant) made application to the Fair Work Commissioner (Commission) seeking a remedy for alleged unfair dismissal from his alleged former employer, Integrity Developments (WA) Pty Ltd (Integrity Developments or Employer).
[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[3] In response to the application, the Employer asserts:
“ Mr Tomic was not covered by the unfair dismissal laws and therefore is not eligible to make an application.
- Mr Tomic advised Integrity Developments on the 6th June that he would no longer provide services to the Company, therefore the application is out of time, even if he was eligible to make an application.
- Mr Tomic was not an employee. He was an independent contractor and submitted an invoice for all work done, quoting an ABN number on many invoices.
- Mr Tomic was not dismissed but withdrew his services on 6th June 2014.
- Mr Tomic services were for less than the minimum employment period specified under the Fair Work Act. Even if he was eligible to make application for unfair dismissal, his application was well outside the prescribed time limit.”
[4] Further, the Employer asserts that it is a small business but for reasons outlined in paragraph [3] above, does not assert that the alleged dismissal was consistent with the Small Business Fair Dismissal Code.
[5] The application was not the subject of a conciliation conference but referred to me to determine the jurisdictional objections.
[6] On 7 October 2014, my Associate advised the Applicant that before I determined how the application was to be progressed, I sought his response to the Employer’s jurisdictional objections.
[7] The exchange of submissions concluded on 17 October 2014.
[8] Pursuant to s.397 of the FW Act, I was satisfied, from the submissions, that there were matters involving facts which were in dispute. For this reason, I determined that a hearing was necessary to resolve the matters in dispute.
[9] On 22 October 2014, I issued Directions and advised both parties that I expected both parties would give evidence and that evidence, would be tested in cross examination. Further, the parties were able to provide further documentary evidence to support their oral evidence.
[10] The parties provided further documentary material.
[11] At the hearing on 17 November 2015, Mr Tomic represented himself and gave evidence on his own behalf. The Employer was represented by Mr Durack, Agent. Mr K Ledger, Director and Mr M Robinson, Supervisor, gave evidence on behalf of the Employer.
[12] This is my decision and reasons for decision.
RELEVANT LEGISLATIVE FRAMEWORK
[13] A person is protected from unfair dismissal 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) ...”
[14] An employee is described in s.380 of the FW Act as follows:
“380 Meanings of employee and employer
In this Part, employee means a national system employee, and employer means a national system employer.”
[15] The minimum period of employment is set out in s.383 of the FW Act as follows:
“383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.”
[16] The relevant meaning of dismissal is found in s.386(1) of the FW Act as follows:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
...”
[17] The meaning of small business employer is found at s.23 of the FW Act as follows:
“23 Meaning of small business employer
(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) ...”
[18] An employee can make application to the Commission pursuant to s.394 of the FW Act 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.
(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.”
CONSIDERATION
Assuming Mr Tomic is an employee, did he complete the minimum period of employment to be protected from the unfair dismissal provisions of the FW Act?
[19] In his application, Mr Tomic states that the commenced employment on 4 September 2013 and ceased employment on 6 June 2014. This period of time does not meet the minimum period of employment for an employee employed by a small business employer pursuant to s.383 of the FW Act.
[20] I find, on the evidence of Mr Ledger 1 that the Employer was, at the time of the alleged dismissal, a small business employer pursuant to s.23 of the FW Act.
[21] Mr Tomic gave the following evidence in examination-in-chief:
“...The employer has said that in the event that I found that you’re an employee and that you were dismissed that you haven’t completed the minimum period of employment. In your application it says that you commenced on 4 September. The employer says something slightly different but in any event it’s around about the beginning of September. You allege that you were dismissed on 6 June...would you agree with that that’s less than 12 months?---That is correct what you’re saying there but in new light that I have that I was employed, offered the job in July 2013. Late July and was to start to do the two weeks work with the previous maintenance guy, to work with him but I said to the company, “There’s no need for me to work with him because I know what to do there.” It was that two weeks or 11 days that I went to Malaysia. When I came back that’s when I was waiting for – I was employed in July and I’ve been waiting for work to be sent to me.
When do you say specifically you were employed? What date in July?---I can’t say exactly but that would be at the minutes of meetings. It would have been around the 25th to 27.
When did you actually commence your employment? When did you actually start?---Start work?” 2
“Yes?---Okay it would have been in August. I would say middle to late, three quarters of the way through August because that invoice that I put in that was, I did the job a week and a half before that before I actually put the invoice in.
If you started in August and again you say that you were dismissed on 6 June...that is still not 12 months is it?---No that is still not 12 months.
For you to be protected from unfair dismissal there’s a necessity for you to be employed for 12 months?---I took it from when I was offered the job and said that I do have the job and that was late July. So I had other work to go to but I didn’t take that on.
Can you appreciate there’s a difference and there always usually is a difference between people being told that they’ve got a job and when they start. For my purposes if they are an employee it’s from the date they commenced as an employee... ---Yes well I was still handling – even though I finished my last hands on job with the company, I was still handling clients. They were calling me to handle their problems from when I handed my receipts in, my invoice in sorry when I wanted my due pay that was in August. When I sent the last bill in it was 4 August.” 3
[22] From Mr Tomic’s own evidence, I find that, irrespective of whatever way he has portrayed his alleged period of employment, he has not completed the one year minimum period of employment to be protected from unfair dismissal pursuant to s.382(a) of the FW Act.
Assuming Mr Tomic was an employee, and had completed the minimum period of employment to be protected from the unfair dismissal provisions of the FW Act, was he dismissed at the initiative of the Employer?
[23] Mr Tomic submits, and gave evidence, that he assumed he was dismissed on 6 June 2014 because that was the time the Employer asked for the return of its Bunnings card 4.
[24] The Employer provided Mr Tomic with a Bunnings card so he could obtain paint directly from Bunnings and have the charges made directly to it, rather than be invoiced by Mr Tomic.
[25] The Employer concedes that it requested Mr Tomic return the Bunnings card.
[26] Mr Tomic conceded in evidence that Mr Mark Ledger “oversaw and controlled every aspect of” his work 5. Mr Mark Ledger is the brother of Mr Kevin Ledger, who is a director of the Employer.
[27] Mr Mark Ledger advised Mr Tomic that he would be taking over Mr Robinson’s role as Maintenance Supervisor 6. Mr Tomic submits that Mr Mark Ledger “had no clue what he was doing [and he was] not aware of any Professional or Trade certificates he would hold”7.
[28] Mr Tomic submits and gave evidence that:
“On the 6th of June and after more on how to do one's job by Mr Mark Ledger, I openly said to Mr M Ledger that ' I will not do what you are asking me to do because you are wrong and you dont know what you are doing' to which he replied, ' so you dont want to work for Integrity' to which i said 'no that is not what i said, i said I will not do anything for you, because you are not a professional tradesman' pointing at him. The following monday morning Mr Mark Ledger was waiting for me outside Integrity office as i was about to drop my invoice off. Mr M Ledger told me that he had discussed with Mr Kevin Ledger , whom had been in Sydney at the time, what I said. Mr M Ledger then ask me if i had changed my mind and I said absolutely not and I will wait until Kevin Ledger returns. That was the time Mr M Ledger ask for all my paperwork and my Bunnings card which was supplied by Integrity.”
[29] Mr Tomic did not take me to any alleged contract of employment which allowed him to either determine which supervisor he would take instructions from, or that he could choose which directions from Mr Mark Ledger he would comply with. Further, when given the opportunity to reconsider his position of following Mr M Ledger’s instructions, the Applicant said “absolutely not” 8. This position is at odds with his oral evidence when asked in cross examination:
“Did you advise Mr Mark Ledger that you would not continue to work for Integrity while he was still there?---Absolutely not. I have no problem with working with Mr Mark Ledger.” 9
[30] If Mr Tomic was an employee, I find that the Applicant was not dismissed at the Employer’s initiative. The initiative to bring any alleged employment relationship to an end was taken by Mr Tomic.
[31] For reasons that will become apparent in the next section of this Decision, Mr Tomic withdrew his verbal contract for services on 6 June or 9 June 2014.
Was Mr Tomic an employee or an independent contract as alleged by the Employer?
[32] Mr Tomic was initially engaged by the Employer as an independent painting contractor from October 2009. Subsequently, Mr Tomic “lost his registration and under the Building Services Registration Act of 2011, a painter is required to be registered to carry out painting valued over $1 000” 10.
[33] For a period of six (6) months after he lost his registration, Mr Tomic provided no painting services to the Employer. In September 2013, Mr Tomic was engaged to do maintenance painting on an “as needs” basis. According to the Employer, “you don’t have to have a registered painter to undertake the maintenance work” 11.
[34] Mr Tomic was engaged by Mr Robinson to provide painting maintenance service to Integrity Developments.
[35] Mr Robinson’s evidence, which was not tested by Mr Tomic in cross examination, was as follows:
“On what basis did you engage Mr Tomic?---I engaged Tom to basically to carry out the maintenance sub contract work.
You made it very clear that he was a contractor?---Yes.
Did you at any time indicate how many hours he would be working?---No.
He understood that at the time?---Yes, I believe so.
Your view, you’re quite clear that he understood that he was working as a contractor on an as needs basis?---I do believe that, yes.” 12
[36] Mr Tomic’s evidence was that he considered himself an employee because the previous person in the maintenance position had given two (2) weeks’ notice 13, and asserted, only those persons who give notice, are employees.
[37] Mr Tomic considered himself a full-time employee 14. However:
- for the period of engagement by the Employer, he provided, on average, services of 17 hours per week 15;
- in some weeks, he did not provide any services to Integrity Developments 16;
- Mr Tomic had no set hours of engagement;
- Mr Tomic was remunerated on the basis of invoicing his hours to Integrity Developments on a random basis - invoices were not provided weekly 17;
- at the commencement of his engagement, Mr Tomic provided all the “tools of the trade” 18. This changed in December 2013 when Integrity Developments provided Mr Tomic with a Bunnings Card19 to purchase paint;
- Mr Tomic provided his own vehicle to carry out his services and was not reimbursed for those expenses 20;
- Mr Tomic did not report to the alleged Employer’s premises each day 21;
- the alleged Employer did not pay PAYG tax, superannuation guarantee levy, allowances, annual leave or any other requirements expected in an employment relationship 22; and
- Mr Tomic was able to determine when he provided services to Integrity Developments, and was engaged and paid by other entities, while providing services to Integrity Developments 23.
[38] The evidence of both parties demonstrates that:
- there was no contract of employment relationship between Mr Tomic and the Employer which would give rise to a mutuality of obligation;
- the only control over the services of Mr Tomic to Integrity Developments, was that normally expected in a transaction for services; and
- there were no terms of the relationship which would normally be consistent with a contract of employment.
[39] I find, on the evidence, that Mr Tomic was a self employed business person and acted accordingly. Mr Tomic does not meet the ordinary meaning of employee.
In the event that Mr Tomic was an employee, did he file his application within 21 days of the alleged dismissal taking effect? Alternatively, if the application was not made within 21 days, are there exceptional circumstances to allow the application to be made on 14 August 2014?
[40] On the evidence, I find that the relationship between Mr Tomic and Integrity Developments ended on 6 or 9 June 2014 after discussions between Mr Mark Ledger and the Applicant, and the withdrawal of the Bunnings card.
[41] It is notable that the last invoice submitted to Integrity Developments was on 9 June 2014 24. I also note that Mr Tomic claims that he sent an invoice on 4 August 2014. However, the Applicant did not provide a copy or advise what services he provided which resulted in the invoice.
[42] In the event, the Applicant was an employee, I find that he did not file an application within 21 days after the alleged dismissal took effect on either 6 or 9 June 2014. Further, I am satisfied that no exceptional circumstances existed to allow the application to be filed on 14 August 2014.
CONCLUSION
[43] For the reasons set out above, I find that Mr Tomic was not protected by the unfair dismissal of the FW Act. Accordingly, the application will be dismissed pursuant to paragraph 587(3)(a) of the FW Act. An order to this effect is issued with this Decision.
COMMISSIONER
Appearances:
T Tomic, the Applicant.
A Durack, Agent, on behalf of the Employer.
Hearing details:
2014:
Perth,
17 November.
1 Transcript PN191
2 Transcript PN63-PN65
3 Transcript PN67-PN70
4 Transcript PN52
5 Transcript PN143
6 Applicant’s submission.
7 Applicant’s submission.
8 Applicant’s submission and Transcript PN126.
9 Transcript PN97
10 Transcript PN148 and PN149.
11 Transcript PN150
12 Transcript PN214-PN218
13 Transcript PN22
14 Transcript PN33
15 Transcript PN153
16 Transcript PN110
17 Transcript PN38
18 Transcript PN164
19 Transcript PN164
20 Transcript PN44
21 Transcript PN46
22 Transcript PN49-PN51
23 Transcript PN91-PN95
24 Transcript PN99
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