Ms Christine Dunn v Artha Property Group Pty Ltd T/A Artha Property Group

[2018] FWC 4179

[2018] FWC 4179

FAIR WORK COMMISSION

DECISION

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

Ms Christine Dunn
v
Artha Property Group Pty Ltd T/A Artha Property Group
(U2018/3114)

COMMISSIONER SIMPSON BRISBANE, 4 DECEMBER 2018

Application for an unfair dismissal remedy – Whether applicant satisfied minimum employment period – Factual dispute concerning nature of engagement – Real Estate Industry Award covers and applies to both Applicant and Respondent - Commission only work is considered piecework under Real Estate Industry Award – Applicant engaged on commission only basis – Applicant was a pieceworker continuously employed – Jurisdictional objection dismissed.

BACKGROUND

[1] The Applicant Ms Dunn applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) on 23 March 2018, alleging that she was dismissed from her employment at Artha Property Group Pty Ltd T/A Artha Property Group (The Respondent), and the dismissal was harsh, unjust or unreasonable.

[2] Ms Dunn alleged that she was forced to resign from her employment with the Respondent as a result of the unreasonable and inappropriate conduct and behaviour of Mr Brett Neeson, a Director of the Respondent, and that such forced resignation was a dismissal as defined under s.386(1)(b). Ms Dunn submitted that her resignation took effect on 5 March 2018 upon the Respondent’s acceptance of her resignation, tendered on 4 March 2018.

[3] The Respondent initially objected in its response of 23 April 2018 to Ms Dunn’s application on several separate jurisdictional grounds, including by arguing that the application was lodged outside of the time limit stipulated under s.394(2)(a) of the Act, however when the FWC sent correspondence to the Respondent on 15 May raising the fact of the resignation being tendered on 4 March, the Respondents legal representative advised on 23 May that he had been instructed to withdraw the objection in relation to the application being out of time. It is clear the application was filed within time. I listed the matter for directions on 3 July 2018.

[4] Ms DeMarco sought leave to appear for Ms Dunn and Mr Batt to appear for the Respondent. I granted leave to both parties to be represented by a lawyer under s.596 on the basis that it would assist me to deal with the matter more efficiently. Mr Batt confirmed at the directions hearing the out of time objection was withdrawn.

[5] Ms DeMarco accepted that the Respondent only had seven employees at the time of dismissal and, on that basis, I was satisfied the employer was a small business employer at the time of termination.

[6] Mr Batt said his instructions were that Ms Dunn was engaged as a casual real estate agent, her employment was not a consistent period of employment and was casual, and only performed when Ms Dunn needed to work.

[7] After some discussion it was resolved at the directions hearing that the FWC should determine the minimum employment period question first and separately.

[8] I subsequently issued directions for the filing of material in relation to the jurisdictional questions and indicated on 6 August 2018, that any evidence could be dealt with by a telephone hearing in order to minimise cost. Subsequent evidence and submissions received included material relevant to the constructive dismissal issue. Correspondence was sent from my chambers to the parties on 10 October confirming that the hearing on 15 October would be confined to the minimum employment period issue.

[9] On 10 October, the Respondent requested that the hearing of 15 October be adjourned because Mr Neeson was unfit to proceed. A medical certificate was subsequently provided. The hearing was adjourned. Following some difficulty between the parties on settling a new hearing date the matter was listed for further directions and a subsequent date of Thursday 8 November 2018 was settled to hear the jurisdictional argument on minimum employment period.

EVIDENCE AND SUBMISSIONS

Respondent

[10] On 20 July the Respondent filed written submissions and a witness statement from Mr Brett Neeson, 1 a Director of the Respondent. The Respondent submitted that Ms Dunn was employed by the Respondent as a casual employee but not on a regular or systematic basis and Ms Dunn had no reasonable expectation of continuing employment with the Respondent. It was argued that Ms Dunn had not completed the minimum period of service required to be protected from unfair dismissal under s.382(a) of the Act.

[11] The Respondent relied on the FWC Full Bench decision of Shortland v Smiths Snackfood Co Ltd 2(Shortland). That decision considered principles governing consideration of a casual employment relationship in the context of whether a casual employee has completed a minimum period of service under s.384 of the Act. The Full Bench in that case said the following in respect of casual employees:

“As a matter of the common law of employment…each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment…in this sense no casual employee has a continuous period of employment between any single engagement…The criteria in s.384(2) make it clear that s.384 does not proceed on the basis that a casual employee’s period of employment for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment.  3

…s.384 is concerned with how an employee’s period of employment is calculated for the purposes of s.382(a). Section 384(2) draws a distinction between a period of service and a period of employment. It also draws a distinction between a period of continuous service and a period of service: a period of continuous service can be made up of a series of periods of service, some of which count towards the period of continuous service (i.e. where the conditions in s.384(2)(a)(i) and (ii) are met) and some of which do not (i.e. where one of the conditions in s.384(2)(a)(i) or (ii) is not met). It is clear from the language of s.384(2) that an employee may have a series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee’s period of employment only if the requirements in s.384(2)(a)(i) and (ii) are met. Section 384(2) is concerned only with determining which periods of service in such a contiguous series count toward the employee’s period of employment with the employer for the purposes of s.382(a).

Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury.” 4

[12] It is the employee’s “engagement that must be regular and systematic; not the hours worked pursuant to such an engagement.” 5 It has been held that the term ‘regular’ “should be construed liberally…to imply some form of repetitive pattern rather than being used as a synonym for ‘frequent’ or ‘often’…it is not used…as a synonym for words such as ‘uniform’ or ‘constant’.6Further, the term ‘systematic basis’ “...implies something more than regularity…The basis of engagement must exhibit something that can fairly be called a system, method or plan”.7

[13] Mr Neeson gave evidence that when Ms Dunn approached him for employment he expressly stated that he was only in a position to employ her on a casual and a commission-only basis. 8 Mr Neeson claimed that Ms Dunn said she was happy to work on those terms and then subsequently began working for the Respondent without any further terms being agreed. In his oral evidence he maintained the employment was offered on a casual commission only basis. He said both his business partner and himself were present at the time. His business partner did not give evidence at the hearing.

[14] Mr Neeson said that Ms Dunn commenced work on or about August 2015 and was remunerated on a commission-only basis as agreed thereafter. In his oral evidence he said he was not certain of the date of commencement but it was in the month of August 2015.

[15] Mr Neeson gave other oral evidence about a separate business relationship he had with Ms Dunn including involving properties on 115, 117 and 119 School Road. He said he discussed putting the properties together, with an aim to do town planning over it and seek development approval. Mr Neeson claimed the proposed development represented approximately 90% of his dealings with Ms Dunn during the time of her employment. In cross-examination, Mr Neeson clarified that his business partner dealt with employment issues and his interactions with her were primarily about the development proposal.

[16] Mr Neeson was recalled to give further evidence on this matter. He said a preliminary town planning meeting occurred, and there was some discussion about jointly purchasing 119 School Road.

[17] A series of twelve 9 Form 6 Appointment of Agent forms were put to Mr Neeson and Mr Neeson agreed in each case Ms Dunn was appointed as the property agent for those properties described in the Form 6 on which the Respondent was the licensee. The dates for which Ms Dunn was an appointed agent were;

Client	Dates	Agreed Commission
Craig Anthony Bohan	7/12/2016 – 6/3/2017	3% of purchase price plus GST
Geoffrey & Floris Kempe	5/11/2015 – 26/01/2016	(document incomplete)
Arthur & Patricia Van Der Kruyssen	5/10/2016 – 3/12/2016	2% of purchase price plus GST
N James & M Humphries	2/11/2016 – 19/2/2017	2.25% of purchase price plus GST
Elizabeth Hoffman	12/4/2017 – 11/7/2017	2% of purchase price plus GST
Ronald Van Rooy	24/11/2016 – 22/2/2017	3% of purchase price plus GST
Beverley Fitzgerald	3/11/2016 – 1/2/2017	2% of purchase price inclusive of GST
Colin Donaldson & Sharon Harvey	7/11/2016 – 4/2/2017	2.5% of purchase price plus GST
John Fiori	8/1/2017 – 8/4/2017	1.5% of the purchase price plus GST
Josie Lee	14/11/2016 – 11/2/2017	2.5% of purchase price plus GST
Albert Jewell	22/10/16 – 19/1/2017	2.5% of purchase price plus GST
Philip & Audrey Remaili	8/12/2017 -	2.5% of purchase price plus GST

[18] It was submitted for Ms Dunn this was not all of the Form 6 Documents but only those that she could obtain a copy of. Mr Neeson conceded it was possible Ms Dunn was a party to more Form 6 Documents but he did not know.

[19] Mr Neeson said in his oral evidence Ms Dunn was not full time as she was not supervised but that as a commission only employee the ‘sky is the limit’ in terms of what could be earned. He accepted that Ms Dunn was paid at the settlement of a contract. When it was put to Mr Neeson that Ms Dunn would be continuously working on a property she had listed he said he didn’t know and that she didn’t report to him. He said he would speak to her if she had a concern or wanted advice but not about things such as marketing.

[20] Mr Neeson was asked what the Real Estate Industry Award said about casual employment and he said he did not know off the top of his head. In relation to commission only work he indicated he believed casuals cannot be employed on a commission only basis but that was now. He said he believed this has changed since Ms Dunn was employed by him.

[21] Mr Neeson evidence appeared to be he was unsure about the terms of the Real Estate Industry Award. He said he was familiar with the terms of the Award before Ms Dunn was employed, and he believed he could only offer her a casual position under the Award. He accepted it is generally expected Ms Dunn would have been required to attend open homes for listed properties. He accepted that if Ms Dunn had a listing she would be continuing to try and sell the property.

[22] Mr Neeson said that Ms Dunn was only interested in working in the Logan Reserve Area and that the Respondent does not have an office at the Logan Reserve. Mr Neeson said the Respondent usually handles large developments, commercial transactions such as hotels and commercial buildings and prestige properties in Brisbane. Mr Neeson said that the Respondent is not interested in local or outer area transactions from its base and was not particularly interested in opening an office where Ms Dunn wanted to work.

[23] Mr Neeson said that the Respondent, through its directors and as part of its work practices, will usually take listings and referrals through its network and it shares those listings with its staff at the director’s discretion. In his oral evidence, Mr Neeson said listings are normally obtained independently by agents and, in the absence of referrals, listing are obtained on the agents own initiative.

[24] Mr Neeson said that the Respondent did not set aside an office or computer for Ms Dunn as Ms Dunn expressed no desire to work from the office when work was available for her. He said Ms Dunn only attended the office on two occasions that he was aware of, both of which were unrelated to the business of the office. Mr Neeson said there was no roster for Ms Dunn and there were no set duties or times for performing duties.

[25] Mr Neeson said that Ms Dunn sometimes called on him to assist her in obtaining real estate listings and he attended a few listing presentations with her. He said that, partly due to the nature of the work, there was no pattern to this and Ms Dunn’s work within the business occurred at irregular times. Mr Neeson said there was nothing regular or systematic about the hours worked by Ms Dunn or the type of work she did, which varied significantly from month to month.

[26] Mr Neeson said that Ms Dunn’s work, and the remuneration which followed from it, were sporadic as evidenced by the sales she achieved and the related Pay Slips. Mr Neeson said that at no stage did he say anything to the effect that Ms Dunn could expect work for the Respondent with any regularity at all.

[27] Mr Neeson said at no stage prior to her resignation did Ms Dunn indicate that she was not getting the work she expected. He said he did not say anything to suggest that Ms Dunn could expect ongoing employment, and he said he believed Ms Dunn understood this.

[28] I put to Mr Neeson near the conclusion of his evidence that the Real Estate Industry Award did not allow an employee to be a casual employee and commission only at the same time. He said he was under the impression at the time that this was possible.

[29] The Respondent submitted that there was no pattern of employment. The Respondent described Ms Dunn’s duties as entirely ad hoc and responsive to particular items of work as they emerged and there was no discernible pattern that would qualify it as systematic or regular.

[30] The Respondent submitted that, on the question of whether there was a reasonable expectation of regular and systematic employment, Ms Dunn’s case is even worse. It said the nature of a real estate agencies work in which referrals are given entirely at the discretion of the directors of the agency is utterly inconsistent with Ms Dunn adopting any reasonable expectation of continuing systematic or regular employment.

[31] At the conclusion of the evidence of Mr Neeson I also expressed from the Bench a preliminary view, that it appeared Ms Dunn may be a piece worker employed on a commission only basis, though I made clear this view was not expressed as a concluded view.

Applicant

[32] Ms Dunn provided a statement 10. Ms Dunn submitted that she was a full-time employee. However, in the event that it is found she was a casual employee, she said that she was employed on a regular and systematic basis and had a reasonable expectation of ongoing employment on a regular and systematic basis.

[33] Ms Dunn contends that she commenced employment from July 2015 as a Property Sales Representative reporting to Brett Neeson. In her oral evidence, she said Mr Neeson told her she could start in July even though she didn’t have a license yet as she had a listing.

[34] Ms Dunn submitted that it is the employment that must be on a regular and systematic basis, not the hours worked, and referred to the decisions in Yaraka Holdings Pty Limited v Giljevic 11and Ponce v DJT Staff Management Services Pty Ltd.12Ms Dunn relied on the same decisions to submit that a clear pattern or roster of hours is strong evidence of regular and systematic employment.

[35] Ms Dunn referred to Yaraka 13and a decision of Commissioner Jones in Grives v Aura Sports Pty Ltd14 to submit that the term ‘systematic’ requires that the engagement be ‘something that could fairly be called a system, method or plan’.

[36] Ms Dunn referred to Ponce in support of her submission that, where there is no clear pattern or roster, evidence of regular and systematic employment can be established where:

(a) The employer offered suitable work when it was available at times that the employee had generally made themselves available, and

(b) Work was offered and accepted regularly enough that it could no longer be regarded as occasional or irregular. 15

[37] Ms Dunn said that she first meet Mr Neeson in or about 10 March 2015 in the context of Mr Neeson assisting her husband find a purchaser for a property he was selling. Ms Dunn claimed Mr Neeson offered her employment after some discussion. Ms Dunn claimed Mr Neeson said to her “you have a gift for finding property”.

[38] Ms Dunn said that she told Mr Neeson that she had not been employed for many years due to medical reasons related to her medical condition of Juvenile Rheumatoid Arthritis. Ms Dunn said she initially rejected the offer of employment because she did not have a real estate license and cannot hold a drivers licence for health reasons.

[39] Ms Dunn claimed that Mr Neeson was very persuasive and continued to ask her to work for him. Ms Dunn claimed Mr Neeson told her not being able to drive would not be an issue and that she could work from home, arrange client meetings and open homes around her husband’s work schedule and that he would provide her with training and support to build her experience.

[40] Ms Dunn claimed the Respondents main business premises were at Underwood, and there is another office at Milton. Ms Dunn said in July 2015 she met with Mr Neeson at the Underwood Office to discuss the opportunity to work for him, and during that meeting they discussed her hours of work and remuneration.

[41] Ms Dunn claimed that Mr Neeson told her that she would be required to work full-time hours, and she could be paid a commission for properties sold or be paid a retainer. Ms Dunn claimed that Mr Neeson explained that if she was paid a retainer and did not sell any properties that she would be required to pay the retainer back to him in full. Ms Dunn said that she was not aware of her rights and worried that the job may put her in debt so said she said she would prefer to be paid commission.

[42] Ms Dunn said Mr Neeson did not discuss the Real Estate Industry Award or provide her an employment contract or letter of offer stating the terms of her employment.

[43] Ms Dunn said she was provided approximately two hours of training which consisted of how to use web-based programs such as REX, Realworks or realestate.com as well as how to complete a Form 6 Appointment and reappointment of a property agent, resident letting agent or property auctioneer form. Ms Dunn said initially before she obtained her Real Estate Salespersons Certificate, to build up her reputation she did letterbox drops, cold calling and door knocking.

[44] Ms Dunn said that on 18 July 2015 she completed the requisite training for a Certificate IV in Property Services (Real Estate) and subsequently obtained her Real Estate Salesperson Certificate pursuant to the Property Occupations Act 2014 (Qld). She said she received the certificate on 17 August.

[45] Ms Dunn said she set up an office in her home and worked between 38 and 45 hours per week and her hours of work varied depending on when Mr Neeson required her to attend meetings or open homes, call clients or make arrangements to meet potential clients, list properties and when she sold them, made arrangements for the purchasers to appoint the Respondent to manage the rentals.

[46] Ms Dunn attached to her evidence what she said was a copy of phone records showing her telephone usage for the period between 28 March 2016 and 27 April 2016, and from 28 July 2017 and 27 August 2017. Ms Dunn was asked a series of questions during cross examination about the phone records, including concerning whom the calls were made to and how long the calls lasted. It was put to Ms Dunn that the time she spent on the phone was very limited. Ms Dunn said she also used her home phone which she did not produce records for. Ms Dunn said often if a client was local she would make a short call and visit the client in person. Ms Dunn said there were only three days in the month she could not be driven by her husband or son to see a client, or she could use a taxi or Uber. Ms Dunn also said she used email.

[47] Ms Dunn said the job of a real estate agent is not one that can be done on a casual or part-time basis given the amount of follow up and groundwork required to secure a sale. Ms Dunn said her husband and her son drove her around to properties and sometimes she had to attend properties on several occasions.

[48] Ms Dunn was asked about her business relationship with Mr Neeson outside the employment relationship. Ms Dunn was also asked about calls made to a Mr Peter Tesic involving Villaworld. Ms Dunn’s evidence was to the effect that there were discussions about a joining together of properties for a development, but that she decided she was not in favour of and it never went ahead. Ms Dunn said there were discussions, including other neighbours as well, and Villaworld was interested in all of the properties. She agreed she went to the local council about the matter on one occasion.

[49] Ms Dunn attached to her statement a copy of what she said were travel records maintained by her husband from 20 July 2015 to 17 February 2017.

[50] Ms Dunn claimed Mr Neeson had not completed forms for properties she had sold and failed to pay commissions. Ms Dunn said she had only earned $34,743.38 net in commissions in over the two and a half years she was employed by the Respondent.

[51] During the period of Ms Dunn’s employment she was paid the following amounts on the following dates.

Date	Commission	Superannuation
9/2/16	$4,808.22	$456.78
14/6/16	$1,335.62	$126.88
9/8/16	$8,504.57	$807.94
7/4/17	$1,076.71	$102.29
13/10/17	$12,614.15	$1,300.00
28/11/17	$4,269.41	$405.59
4/12/17	$2,134.70	$202.00
6/3/18	$525.11	$49.89

[52] Ms Dunn claims to be owed a large sum in unpaid commissions. Ms Dunn also claims she has not been paid superannuation, as the Respondent deducted 9.5% from the commissions she was paid and submitted those funds to the superannuation fund. Ms Dunn also claims her superannuation fund has not been paid the equal of what her payslips say was paid as superannuation.

[53] Ms Dunn also said she had never before seen a purported employment contract the Respondents solicitor sent to her solicitor (in the course of these proceedings) until received by her solicitor.

[54] Ms Dunn’s husband Mr Brett Dunn provided a witness statement 16 and gave evidence that he witnessed Mr Neeson offer the Applicant a full-time job with the Respondent in or around early March 2015, however it appears from his evidence this was not accepted at the time. He referred to Mr Neeson continuing to canvas his wife to work for him, and he witnessed Mr Neeson telling Ms Dunn he would work around the driving issue and suggested that she could work from home and periodically attend the Milton or Underwood office as necessary. Mr Dunn said he witnessed Mr Neeson telling Ms Dunn he would personally assist her to obtain a real estate licence and he would provide her training to assist with open homes and selling properties.

[55] Mr Dunn claimed that Mr Neeson purported himself to be a flexible employer and told Ms Dunn and himself that there were other full time employees whose husbands drove them to work.

[56] Mr Dunn said in his oral evidence that during Ms Dunn’s exam period (for her license) in July she began to work for the Respondent. Mr Dunn said Ms Dunn worked at 100% of the vendors’ needs and generally included four open homes. He claimed Ms Dunn worked 8 to 10 plus hours a day. He said being a local resident gave her confidence to approach local residents in the area with larger blocks to list properties as developers were interested in the area.

[57] Mr Dunn said with his work being rotational and mainly working in the evenings and two weeks per month, he offered to drive the Applicant when required. He said his son Zach Dunn who lived with them until January 2018 also offered to drive Ms Dunn to and from work.

[58] Mr Dunn said that Ms Dunn worked from her office that they set up in their home and would complete tasks, plan and schedule and make calls at all hours of the day and sometimes the evenings. Mr Dunn estimated that Ms Dunn worked between 8 and 10 hours a day on average, and worked Monday through to Saturday and some weeknights for open homes. Mr Dunn claimed that Ms Dunn received phone calls and text messages from Mr Neeson at all times of the day and night.

[59] Mr Dunn was cross examined about the travel log attached to his statement. He accepted that the log included 10 properties where he claimed he was involved in transporting his wife to and from properties. There were a series of questions about the manner in which the entries were made. It was suggested to Mr Dunn that the record was transcribed. I understood Mr Dunn’s evidence was that the entries were made contemporaneously with the travel undertaken. He said the record was put together for tax purposes.

[60] Mr Dunn was asked about the development proposal for 115, 117 and 119 School Road. He said the discussions were from October 2015 when Mr Neeson proposed buying the property next door to the Dunn’s property. Mr Dunn said not long after they had made a verbal agreement to consider a joint development a meeting occurred with the council but that a few months later they decided they did not want to proceed with the idea.

[61] Ms Ani Jones gave evidence via telephone subject to an order issued requiring her to attend following an application for such an order from Ms Dunn. While Ms Jones evidence was quite vague on the point it appeared her evidence was that she worked for the Respondent about four and a half years ago and finished working for the Respondent in September 2016. Ms Jones said she had previously operated a hair salon and during this time she got to know Mr Neeson. She indicated she sold her hair salon in September 2016 while she was working for the Respondent. Ms Jones said she had a real estate license before she met Mr Neeson. Ms Jones said she worked for the Respondent (apparently as a real estate agent) but was never paid, however she later said she was paid a $6000 commission on one occasion.

[62] Ms Jones appeared to be frustrated that she did not receive more training from the Respondent about selling properties. Ms Jones claimed she worked nine hours a day however she also appeared to continue to work in the hair salon during the period she was also employed by the Respondent. Ms Jones accepted she only sold one property in two years.

[63] Ms Jones claimed Ms Dunn worked “all of the time”. However, her evidence about the times that Ms Dunn worked was not very specific hearsay evidence and of little assistance. Ms Jones appeared to believe Ms Dunn worked in another one of the Respondent’s offices, however this was not correct.

CLOSING SUBMISSIONS

[64] At the conclusion of the hearing on 8 November 2018 the parties were allowed to make a further written closing submission by 14 November 2018.

[65] The Respondents closing submission returned to reliance on the Full Bench decision in Shortland v Smiths Snackfood Co Ltd and WorkPac Pty Ltd v Skene. 17The Respondents submissions do not engage with, and are silent on, the matter of the Award prohibiting an employee being engaged on a casual basis if they are paid on a commission only basis. The submissions also did not address the issue raised in the course of the hearing Ms Dunn may have been a piece worker.

[66] Ms Dunn’s closing written submissions refer to clause 16 of the Real Estate Industry Award 2010 and specifically the words “An employee paid on a commission only basis must not be engaged as a casual employee.” It was submitted that Ms Dunn was, based on the evidence, clearly paid on a commission only basis. As the Award prevented the Respondent from being able to engage Ms Dunn as a casual employee, if she was paid commission only, Ms Dunn cannot have been a casual employee and therefore the Commission has jurisdiction to deal with the matter. The closing submissions for Ms Dunn also failed to specifically address the proposition that Ms Dunn was a piece worker.

[67] It was put for Ms Dunn that if she was not a permanent employee then Ms Dunn satisfied s.384(2)(a), as during the period between July 2015 and March 2018 she worked every week. Similarly, concerning s.384(2)(b), her regular and systematic employment between 2015 and 2018 demonstrated she had a reasonable expectation of ongoing employment.

CONSIDERATION

[68] Sections 382 and 383 of the Act provides for when a person is protected from unfair dismissal and states:

“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.”

“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.”

[69] The meaning of ‘small business employer’ is defined under s.23 of the Act, which states:

“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.”

[70] Whether an employee actually completed the minimum period of service with a particular employer requires consideration of the meaning of ‘period of service’ as that term is defined by s.384 of the Act, which states:

“384 Period of employment

(1) An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee's period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis…”

[71] I have already found that the Respondent meets the definition of a ‘small business employer’ as that term is defined in s.23 of the Act. Therefore, Ms Dunn must have been employed by the Respondent for at least one year at the time of her dismissal to be capable of being protected from unfair dismissal under s.382 of the Act.

[72] Ms Dunn submitted that she began her employment with the Respondent in or about July 2015. The Respondent submitted that Ms Dunn’s employment commenced in or about mid-August 2015. On any view, Ms Dunn performed work for the Respondent at various times spanning a period well in excess of one year at the time of her alleged dismissal.

[73] Ms Dunn’s primary contention is that she was employed on a permanent basis. There was considerable factual dispute in the evidence about how regularly Ms Dunn worked. Mr Neeson gave evidence that when Ms Dunn approached him for employment he expressly stated that he was only in a position to employ her on a casual and a commission-only basis. 18 Mr Neeson claimed that Ms Dunn said she was happy to work on those terms and then subsequently began working for the Respondent without any further terms being agreed. Ms Dunn denied this and her evidence was to the effect that Mr Neeson told her that she would be required to work full-time hours, and she could be paid a commission for properties sold or be paid a retainer.

[74] Ms Dunn’s evidence included the claim that Mr Neeson explained to her that if she was paid a retainer and did not sell any properties that she would be required to pay the retainer back to him in full. Ms Dunn said that she was not aware of her rights and worried that the job may put her in debt so said she said she would prefer to be paid commission. She also said that Mr Neeson did not discuss the Real Estate Industry Award 2010 or provide her an employment contract or letter of offer stating the terms of her employment.

[75] The Real Estate Industry Award 2010 has undergone some variations in recent years pertaining to arrangements for commission only employment. At the time of the commencement of Ms Dunn’s employment in either July or August 2015 the Award included the following at clause 16.

“16. Commission-only employment

16.1 Subject to clause 16.2, an employee engaged in a property sales classification may agree with the employer to be paid on a commission-only basis. Such an employee is considered a pieceworker, and is referred to in the award (and within the real estate industry) as a commission-only employee.

16.2 Minimum requirements for commission-only employment

A person may be a commission-only employee when all of the following conditions have been satisfied:

(a) the employee has agreed in writing with the employer to be remunerated on a commission-only basis and has entered into a written agreement (commission-only agreement) with the employer that sets out a basis upon which the entitlement to commission will be calculated;

(b) the employee has been issued with a real estate agent’s license or is registered or permitted to perform the duties of a real estate salesperson under real estate law;

(c) the employee has been engaged as a real estate salesperson (with any licensed real estate agent) or with an active licensed real estate agent for an aggregate period of at least 12 months in the five years immediately prior to entering into the commission-only agreement;

(d) the employee is at least 21 years of age;

(e) the employee is not engaged as a casual, a junior, a property sales associate or a trainee; and

(f) the employee can demonstrate (with the present or any past employer) that they have achieved the minimum income threshold in clause 16.3. Provided that the minimum income threshold will not need to haven been achieved if the employee has operated their own real estate business within the last five years.

16.3 Minimum Income threshold

(a) The minimum income threshold has been achieved if (and only if) the employee can establish that, if the lowest rate of commission to be applied under the commission-only agreement had been applied to the employee’s real estate sales or commercial leasing transactions in any single 12 month period in the five years immediately prior to entering into the commission-only agreement, the employee would have been entitled to be paid the following amount:

(i) if the employee was not required to incur the costs of supplying and running a motor vehicle and/or the costs of supplying and using a mobile telephone, an amount at least the equal to the employee’s wage specified in clause 14-Minimum weekly wages, calculated as an annual amount, based on the minimum weekly wage for the employee’s classification; or

(ii) if the employee was required to incur the costs of supplying and running a motor vehicle and/or the costs of supplying and using a mobile telephone, an amount at least the equal to 110% of the employee’s wage specified in clause 14-Minimum weekly wages, calculated as an annual amount, based on the minimum weekly wage for the employee’s classification.

(b) The employer is entitled to rely on any data supplied by the employee from any past employer for the purpose of determining if the minimum income threshold has been achieved, provided that the employee provides the employer with a statutory declaration about the accuracy of such data.

16.4 The following clauses of the award do not apply to a commission-only employee:

(a) clause 10.3(b) – Payment for part-time employment;

(b) clause 14.1- Minimum weekly wages;

(c) clause 15 – Payment by wages with commission, bonus or incentive payments;

(d) clause 18- Allowances; and

(e) clause 24 – Overtime.

16.5 Minimum Commission-only rate

(a) The minimum commission-only rate is calculated as 35% of the employer’s net commission.

(b) Subject to clauses 16.5(c) and (d), a commission-only employee is always entitled to at least the minimum commission-only rate for each sales or commercial leasing transaction for which the employee was responsible.

(c) In the situation where:

(i) two or more employees are separately responsible for different components of a sales or commercial leasing transaction; and

(ii) the employee portion of the employer’s net commission is to be split amongst the employees according to the component(s) for which the particular employee was responsible, any commission-only employee responsible for one or more component(s) is entitled to at least the minimum commission-only rate proportionate to the value of each component.

(a) With respect to clause 16.5(c):

(i) component(s) may include, but are not limited to:

•  commercial leasing of a property;

•  listing of a property or business;

•  managing the listing of a property or business;

•  selling a property or business; and/or

•  nurturing a legally-enforceable contract to completion

(ii) the proportionate value of each component will be as agreed in writing between the employer and the employee.

16.6 Where it is agreed that an employee will be entitled to a portion of the commission paid to the employer greater than the minimum commission-only rate prescribed in clause 16.5 then any method of calculation, or any formula for calculating what amount of commission will be payable to the employee in excess of the minimum commission-only rate, must be evidenced in a written agreement between the employer and the employee.”

[76] Section 21 of the Act includes the following:

“21 Meaning of pieceworker

(1) [Meaning of pieceworker]

A pieceworker is:

(a) a national system employee to whom a modern award applies and who is defined or described in the award as a pieceworker; or

(b) a national system employee to whom an enterprise agreement applies and who is defined or described in the agreement as a piece worker; or

(c) an award/agreement free employee who is in a class of employees prescribed by the regulations as pieceworkers.”

[77] Section 47 of the Act includes the following:

“47 When a modern award applies to an employer, employee, organisation or outworker entity

When a modern award applies to an employee, employer, organisation or outworker entity

(1) A modern award applies to an employee, employer, organisation or outworker entity if:

(a) the modern award covers the employee, employer, organisation or outworker entity; and

(b) the modern award is in operation; and

(c) no other provision of this Act provides, or has the effect that the modern award does not apply to the employee, employer, organisation or outworker entity.”

(2) …………….

(3) A reference in this Act to a modern award applying to an employee is a reference to the award applying to the employee in relation to particular employment.”

[78] Section 48 of the Act includes the following:

“48 When a modern award covers an employee, employer, organisation or outworker entity

When a modern award covers an employee, employer, organisation or outworker entity

(1) A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity.”

[79] Section 148 of the Act says as follows:

“148 Base and full rates of pay for pieceworkers

If a modern defines or describes employees covered by the award as pieceworkers, the award must include terms specifying, or providing for the determination of, base and full rates of pay for those employees for the purpose of the National Employment Standards.

Note: An employee’s base and full rates of pay are significant in determining the employee’s entitlements under the National Employment Standards.”

[80] Clause 16.1 of the Award makes clear that a commission only employee engaged under the Award is considered a piece worker. The Coverage clause of the Award says the following at 4.1 “This award covers employers in Australia engaged in the real estate industry in respect of their employees engaged in classifications in clause 14 – Minimum weekly wages to the exclusion of any other modern award.” It is clear that the Award covered and applied to both Ms Dunn and the Respondent for the period of Ms Dunn’s employment.

[81] The evidence is also clear that during her employment from July or August 2015 until March 2018 it had been agreed, and always was the case, that the Respondent paid Ms Dunn on a commission only basis based on the sale of properties, which occurred on eight separate occasions. Ms Dunn’s remuneration was never time based, as would be the case for a casual employee.

[82] The arrangement made between Ms Dunn and the Respondent was consistent with what the Award contemplates for commission only piece workers, and leads to the inevitable conclusion that Ms Dunn was a pieceworker under the Award and could not be a casual employee as is made clear under the terms of the Award.

[83] It is also plain that while Ms Dunn was engaged by the Respondent as a pieceworker under the Award, the engagement was occurring in that manner despite not appearing to conform with a range of minimum requirements for commission only employment set out in clause 16.2. This apparent non-conformance may well give rise to a series of questions concerning apparent Award contravention but those are not matters for the Commission and will need to be dealt with in another place. The apparent non-conformance with a number of terms of the Award does not in my view lead to a result that the Award does not apply to the particular employment.

[84] I am also satisfied, having considered all of the evidence and without repeating it, that Ms Dunn’s employment as a piece worker was continuous until the employment came to an end and on that basis Ms Dunn satisfies the minimum employment period. Having adopted my preliminary view expressed to the parties in the course of the hearing as my concluded view, it is unnecessary to consider whether Ms Dunn would otherwise have met the requirements of s.384(2) pertaining to casual employees. However were it to be found that I were wrong in concluding Ms Dunn was a piece worker employed under the Award, and she was instead a casual employee, then I would have been satisfied on the evidence that her employment was on a regular and systematic basis for more than 12 months and that she had a reasonable expectation of ongoing employment on a regular and systematic basis at the time of her termination and therefore she would have satisfied the minimum employment period in any event. I prefer the evidence of Ms Dunn and her husband on the point as they gave direct evidence as to the day to day activities of Ms Dunn whereas Mr Neeson’s evidence concerning the nature of how Ms Dunn performed her role was quite limited on his own admission.

[85] The evidence of the Respondent concerning the extent of time Ms Dunn spent in connection with a business relationship with Mr Neeson, as compared to as an employee of the Respondent, was not particularly helpful to the Respondent’s case.

[86] On the basis of the conclusions above the jurisdictional objection going to whether Ms Dunn satisfied the minimum employment period is dismissed and the matter will be listed for a Directions Hearing on 11 December 2018to settle a program for the remaining jurisdictional matter and the substantive matter.

COMMISSIONER

Appearances:

Ms M. Demarco of Demarco Law appearing on behalf of the Applicant

Mr G Batt of Gerard Batt Lawyers appearing on behalf of the Respondent

Hearing details:

2018,
Brisbane:

November 8

Printed by authority of the Commonwealth Government Printer

<PR609024>

 1   Witness statement of Brett Neeson dated 20 July 2018

 2   Shortland v The Smiths Snackfood Co Ltd [2010] FWCFB 5709.

 3   Ibid at [10] – [11].

 4   Ibid at [12] – [13].

 5   Yaraka Holdings Pty Limited v Giljevic (2006) 149 IR 399

 6 Ibid at [68].

 7 Ibid at [91].

 8   Statement of Brett Neeson para 5

 9   Exhibit 2 to Exhibit 13

 10   Exhibit 15 statement of Christine Dunn

 11 (2006) 149 IR 399

 12   [2010] FWA 2078 at 70

 13 (2006) 149 IR 399 at 68

 14   [2012] FWA 5552 at para 32

 15   [2010] FWA 2078 at 76

 16   Exhibit 14 Statement of Brett Dunn

 17 [2018] FCAFC 131.

 18   Statement of Brett Neeson para 5