Mrs Sharon Vella v Boxgrove Pastoral Company
[2011] FWA 6296
•19 SEPTEMBER 2011
[2011] FWA 6296 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Sharon Vella
v
Boxgrove Pastoral Company
(U2011/7661)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 19 SEPTEMBER 2011 |
Summary: remedy for unfair dismissal – whether Applicant an employee of Respondent - whether elements of contract in existence - whether mutual intention to create legally binding obligations.
[1] This is an application made by Ms Sharon Vella (“the Applicant”) under s.394 of the Fair Work Act 2009 (“the Act”) for an unfair dismissal remedy. The Respondent is Boxgrove Pastoral Company (represented by its owner, Mr Jock Logan).
[2] This decision must be read in conjunction with the decision in [2011] FWA 6093 (“the prior decision”). The prior decision dealt with the circumstances in which the Applicant’s husband was dismissed by the same Respondent who is alleged to have also dismissed the Applicant.
[3] In the prior decision I found that the Applicant’s husband had been harshly, unjustly or unreasonably dismissed by the Respondent.
[4] It is enough to say at this point that the Applicant’s husband and the Applicant herself (at least purportedly so) had been employed by the previous owner of Panhandle Station (a cattle property in Central Queensland) up until its sale in September 2009. The employment relationship, as it was, ceased upon Panhandle Station being sold. The Applicant’s husband was offered alternative employment with his former employer at a different location. He was also offered a position as Station Manager by the new owner (the Respondent).
[5] After some two weeks of consideration, the Applicant’s husband accepted the position with the Respondent.
[6] The Applicant’s husband was dismissed by the Respondent from that position some eighteen months later.
[7] But the Applicant’s circumstances are different to those of her husband as considered in the prior decision. In the prior decision it was apparent on the evidence that the Applicant’s husband was an employee of the respondent. That is, the Applicant’s husband had been offered a position for the same consideration as his previous position, after considering the offer for some two weeks he accepted the position, and thereafter performed services for the Respondent.
[8] The essential elements of a contract of employment were in evidence in the Applicant’s husband’s case.
[9] But the Applicant’s circumstances are different.
[10] The evidence in this matter demonstrates that Mr Logan had no conversation or gave any indication otherwise of any offer of employment to the Applicant.
[11] The Applicant contends that there are two matters of fact which demonstrate she was an employee of the Respondent.
[12] The first of these is that the Respondent paid into her bank account (in her name) certain monies on a fortnightly basis.
[13] The second fact is that the Respondent, or its presumed agent, had discussed with the Applicant the manner in which the garden adjacent to the house in which she and her husband lived might be improved.
[14] The Applicant felt she also rendered other cooking services on behalf of the Respondent.
[15] On the weight of this evidence, the Applicant contended she had been an employee of the Respondent.
[16] I do not discern in the evidence sufficient indication of the formation of a contract of employment.
[17] The Respondent at no time offered a position to the Applicant on the basis of any consideration.
[18] It is true that each fortnight the Respondent had paid monies into the Applicant’s bank account. However Mr Logan’s evidence was that he did so because that was a means of paying the Applicant’s husband that had been instigated by the previous employer. That is, the Respondent merely maintained an income splitting payment vehicle as a legacy matter.
[19] There is no question in the evidence that this was the case. Consequently, it cannot be contended that the fact the Respondent paid certain monies into the Applicant’s bank account was an element in the formation of a contract of employment.
[20] Further, there is no question that there was a conversation between the Applicant and the Respondent about the status of the gardens. But there is nothing at all in the evidence that is capable of suggesting that this exchange – about which there is little detail – could be construed as an offer of employment or the articulation of expectations about the scope of services sought by the Respondent.
[21] All the evidence permits is a finding that that there was a discussion about the gardens between the Respondent (or one of its apparent agents) and the Applicant.
[22] There is no evidence at all that there was any discussion about the provision of meals on behalf of the Respondent. This may have been a service agreed to be provided to the previous employer, if an employment relationship existed in that case, but I can put the matter no higher than that. There is also nothing that demonstrates that the Respondent took any action to dismiss the Applicant in some manner. The Applicant appeared to suggest she was constructively dismissed by reason of her husband being dismissed and their joint residential arrangements at Panhandle Station coming to an end.
[23] The Act requires under s.382 of the Act, that for an application to be made for an unfair dismissal remedy, the applicant must be an employee of the employer:
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.
[24] In Fox v. Kangan-Batman TAFE the Full Bench considered at length the essential elements of contract. The Full Bench stated, inter alia, as follows:
We have earlier set out the facts in some detail. They clearly show that there was a relationship (a word used by Simmonds C in his decision and a word on which Mr Willoughby-Thomas placed considerable emphasis) between Ms Fox and Kangan. A relationship, however, is not necessarily a contract: see, for instance, the cases to which we refer in the following paragraphs. The elements of a contract are stated in Macken, McCarry and Sappideen's "The Law Of Employment" (4th edition, 1997 by the Hon James Macken, Paul O'Grady and Carolyn Sappideen) (Macken, McCarry and Sappideen), a text to which reference was made both before Simmonds C and us, as follows (p.74):
"The law holds that before any simple contract is enforceable it must be formed so as to contain various elements. These are:
1. There must be an `intention' between the parties to create a legal relationship, the terms of which are enforceable.
2. There must be an offer by one party and its acceptance by the other.
3. The contract must be supported by valuable consideration.
4. The parties must be legally capable of making a contract.
5. The parties must genuinely consent to the terms of the contract.
6. The contract must be entered into for any purpose which is illegal."
In relation to the first of these elements, the learned authors say (p.74):
"The first element essential to the existence of any contract is the requirement that the parties have a mutual intention to create a legally enforceable bargain." 1
[25] In the current circumstances, I cannot discern in the evidence the formation of any contract of employment or the existence of any of the indicia that might demonstrate the existence of an employment relationship having come into existence between the Applicant and the Respondent, nor any mutual intention to enter into legally binding, reciprocal obligations
[26] Consequently, I must dismiss the application before me for want of jurisdiction.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr L. Baker for the Applicant.
Mr J. Logan for the Respondent.
Hearing details:
2011.
Townsville Supreme and District Court Complex.
31 August.
1 Fox v. Kangan-Batman TAFE, Print S0253, 25 October 1999, Giudice J, McIntyre VP, Redmond C at PN 49.
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