Ms Amanda Virgona v Active Adult Management Pty Ltd T/A Retire Australia

[2012] FWA 5243

[2012] FWA 5243

FAIR WORK AUSTRALIA

DECISION

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

Ms Amanda Virgona
v
Active Adult Management Pty Ltd T/A Retire Australia
(U2012/5826)

COMMISSIONER CAMBRIDGE BRISBANE, 21 JUNE 2012

Unfair dismissal - jurisdictional objection - assertion that respondent was not the employer - jurisdictional objection dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Amanda Virgona (the applicant) and the respondent has been identified as Active Adult Management Pty Ltd (ABN: 53118132817) (AAM), trading as Retire Australia.

[2] The application was lodged at Sydney on 5 March 2012. The application nominated that the date the applicant’s dismissal took effect was 22 February 2012. Consequently the application was made within the 14 day time limit prescribed by subsection 394 (2) of the Act.

[3] Conciliation of the claim was unsuccessful and the respondent has pressed an objection which asserted that it was not the employer of the applicant. This objection was first articulated in the Employer’s Response to Application for Unfair Dismissal Remedy (Form F3) which was filed on 27 March 2012.

[4] The Form F3 was completed by a Samantha Hoey who identified herself as Human Resources Manager for Retire Australia. In brief, the Form F3 outlined a history of commercial negotiations that had involved the prospect that Milstern Retirement Services Pty Ltd (Milstern) may take over the operation of certain aged care facilities including the Rose Bay Towers Retirement Village where the applicant worked. These negotiations were unsuccessful and Ms Hoey wrote in the Form F3:

“Currently Active Adult Management and Milstern Retirement Services Pty Ltd are in dispute and Active Adult Management.[sic] Therefore, we do not believe that the unfair dismissal claim is against Active Adult Management, but should be lodged against Milstern Retirement Services Pty Ltd.”

[5] On 30 March 2012, Ms Hoey filed an Objection to Application for Unfair Dismissal Remedy (Form F4). The Form F4 confirmed the nature of the objection raised earlier in the Form F3 and stated: “Active Adult Management Pty Ltd advises that it was not the employer at the time the Applicant was terminated under Section 382 of the Fair Work Act.”

[6] In response to the objection taken by the respondent, the applicant commenced further unfair dismissal proceedings against Milstern. On 2 April 2012 the applicant filed a claim for unfair dismissal remedy against Milstern which was given matter number U2012/6699. Unsurprisingly Milstern objected to the unfair dismissal claim in matter U2012/6699 on the basis that it was not the employer of the applicant and that the matter was filed out of time.

[7] Both unfair dismissal matters, U2012/5826 and U2012/6699, were listed concurrently for Jurisdictional Conference/Hearing before Fair Work Australia (FWA) on 8 June 2012. At the commencement of the concurrent Jurisdictional Hearing Mr Timothy James Russell and Mr Ian William Ramsay appeared for AAM, Mr Michael Burns appeared for Milstern and the applicant appeared in person.

[8] Following some discussion with the parties I decided to adjourn proceedings in matter U2012/6699, Mr Burns was granted leave to withdraw accordingly and the proceedings in respect to this matter, U2012/5826 continued.

[9] Mr Russell advanced the case in support of the objection made by AAM and both Mr Ramsay and Mr Russell were called to give evidence as witnesses. The statement of Mr Ramsay was admitted into evidence without any cross-examination. The applicant also gave evidence as a witness and she attested to the veracity of a statement that she had earlier filed.

Factual Background

[10] The key factual elements of the employment of the applicant including the chronology of events relevant to the objection were not greatly contested.

[11] The applicant commenced employment with AAM on 13 December 2010. She worked as the Village Manager of the Rose Bay Towers Retirement Village. Although the applicant’s employment was transferred to another employer for a period during 2011, she was transferred back to employment with AAM in about January 2012.

[12] AAM operated the Rose Bay Towers Retirement Village and other aged care facilities, under a commercial agreement with Milstern. The details of these commercial arrangements are not relevant to these proceedings. Importantly however, in about December of 2011, Milstern gave 120 days notice to AAM that it would terminate the commercial agreement under which AAM operated, inter alia, the Rose Bay Towers Retirement Village.

[13] Following the notification by Milstern that it was to terminate the commercial agreement with AAM, discussions occurred between Milstern and AAM about various aspects of the termination of the agreement including the potential transfer of staff of AAM to Milstern. Unfortunately these negotiations did not secure any agreement between AAM and Milstern and on Friday 17 February 2012, AAM decided to immediately terminate the agreement with Milstern.

[14] The applicant, inter alia, was not notified of the immediate termination of the agreement under which AAM operated aged care facilities such as the Rose Bay Towers Retirement Village. The applicant attended for work as usual for the week commencing Monday 20 February 2012. On the afternoon of Wednesday 22 February the applicant was told by a representative of Milstern that the agreement between AAM and Milstern had been terminated, Milstern was taking over operational control of the Rose Bay Towers Retirement Village and the applicant was asked to leave the premises.

[15] On or about Friday 24 February, Mr Tim Russell sent a letter to the applicant and other employees of AAM which advised of the termination of the agreement between AAM and Milstern that had occurred the previous Friday. The letter from Mr Russell¹ went on to advise “AAM is now at a point where it has to terminate your employment immediately as we cannot continue to support the current uncertainty.”

The Case in Support of the Objection made by AAM

[16] Mr Russell, who appeared on behalf of AAM, made submissions in support of the objection raised against the applicant’s claim for unfair dismissal remedy.

[17] The submissions made by Mr Russell commenced by stating that the applicant was in an “unfortunate situation” and AAM was sympathetic to these circumstances. Mr Russell said that AAM needed to “resign” as operator of the retirement villages on 17 February because it had little or no other option. Mr Russell also said that it was AAM’s belief that all staff would be employed by Milstern under the same terms and conditions as applied with AAM.

[18] Mr Russell stated that AAM and Milstern had been working towards a transition of the operating agreement so as to avoid or minimise any impact on the elderly residents. Mr Russell said that AAM was shocked and upset when it discovered that employees were approached without AAM’s knowledge, asked to leave the premises and replaced with new employees. Mr Russell said that these actions were inconsistent with every representation made by and every discussion held with Milstern.

[19] Mr Russell submitted that it was the belief of AAM that Milstern terminated staff with a view that they were their staff and not the employees of AAM.

The Applicant’s Case against the Objection

[20] The applicant represented herself at the Hearing of the jurisdictional objection. The applicant stated that although she could sympathise with the financial woes of AAM she was critical of the failure of AAM management to communicate with her and inform her of the termination of the operating agreement on 17 February.

[21] The applicant said that she went to work on the week commencing Monday 20 February in good faith and there was no communication with her about what was going on until the afternoon of Wednesday 22 February when she was told by a representative of Milstern to leave the premises. The applicant said that she had never been informed by anyone that she was working for Milstern and she thought that she was working for AAM.

Consideration

[22] The consideration of the objection raised by AAM in this instance has, in simple terms, involved the assertion that the applicant was not a person protected from unfair dismissal because she was not an employee of the named respondent, AAM. This objection has been approached as a jurisdictional objection requiring determination before consideration of the merits or other issues relating to the termination of employment.

[23] AAM raised the objection to the application in its initial response, the Form F3 and pressed the objection by way of the filing of the Form F4. A jurisdictional objection such as that advanced by AAM in this instance requires the objector to prove their case. Consequently there is an onus upon AAM to establish that it was not the employer of the applicant at the time of her dismissal.

[24] Upon the completion of the Hearing, there was no discernable factual basis to support the assertion made by AAM that it was not the applicant’s employer. Indeed there was some compelling evidence in the form of the letter of dismissal signed by Mr Russell, found as Annexure “C” to the application, which incontrovertibly confirmed the applicant’s dismissal from employment with AAM.

[25] The apparent absence of any evidentiary support for the objection taken by AAM was surprising. The exercise of abundant caution combined with a concern that the objection could not be as plainly untenable as it appeared and that some aspect of the basis for objection may have been overlooked during the Hearing, avoided an extempore determination of the issue. Unfortunately a more detailed analysis of all of the evidence has not revealed a scintilla of support for any alteration to the conclusions that were earlier apparent.

[26] The rationale advanced by AAM to support its assertion that it was not the employer of the applicant was based upon two factors. Firstly, there had been discussions with Milstern about the potential transfer of AAM employees to Milstern. Secondly, AAM took the view that Milstern acted like the employer when it asked the applicant to leave the premises on 22 February.

[27] However these two factors are plainly quashed by the letter written by Mr Russell to the applicant (and others), on 24 February. That letter was undated but the evidence of Mr Russell was that he wrote it on Friday 24 February after the applicant was asked to leave the premises on Wednesday 22 February by a representative of Milstern. As the letter reveals, at that time, 24 February, it was clear that even if Milstern had somehow “assumed” the employment of the applicant following the termination of the agreement on Friday 17 February, it was not continuing that “employment” and AAM was acting to terminate the employment of the applicant after the events of Wednesday 22 February. In simple terms, there would be no reason to write the letter on 24 February if AAM genuinely believed that Milstern was the employer of the applicant and had acted to dismiss her on 22 February.

Conclusion

[28] The determination of the jurisdictional objection raised in this matter has involved an assertion that the named respondent, AAM was not the employer of the applicant at the time of the alleged unfair dismissal. AAM has asserted that the applicant was instead employed and dismissed by Milstern.

[29] The evidence provided in this matter does not support the assertions made by AAM. As a clear contradiction of the objection raised by AAM, the evidence has established that AAM sent the applicant a letter of dismissal after the event which it claimed to represent the dismissal of the applicant by Milstern.

[30] Consequently the applicant was an employee of AAM and she was dismissed by way of an undated letter written by Mr Russell on or about 24 February 2012. The jurisdictional objection raised by AAM is dismissed.

[31] This matter is listed for further proceedings by way of Directions on 4 July 2012 at 10:00am.

COMMISSIONER

Appearances:

Ms A. Virgona appeared on her own behalf.

Mr T. Russell and Mr I. Ramsay appeared on behalf of Active Adult Management Pty Ltd.

Hearing details:

2012.
Sydney:
June 8.

1 Annexure “C” to the application.

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<Price code C, PR525375>