Ms Kathleen Mary Lindsay v Uniting Church in Australia Property Trust (NSW) trading as Lifeline North Coast (NSW) (First Respondent) the Board of Lifeline North Coast (NSW) (Second Respondent)
[2010] FWA 8439
•3 NOVEMBER 2010
[2010] FWA 8439 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Kathleen Mary Lindsay
v
Uniting Church in Australia Property Trust (NSW) trading as Lifeline North Coast (NSW) (First Respondent)
The Board of Lifeline North Coast (NSW) (Second Respondent)
(U2010/779)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 3 NOVEMBER 2010 |
Termination of employment
[1] I heard this application in Coffs Harbour on 16 August 2010 and in Sydney on 13 September 2010 with a videolink to Coffs Harbour.
[2] Mr Gotting, of Counsel, instructed by Belinda Harding, Special Counsel, of Minter Ellison solicitors, appeared for the first respondent, the Uniting Church in Australia Property Trust (NSW) trading as Lifeline North Coast (NSW) (Property Trust). Ms Lindsay was represented by Mr Langler, solicitor of MBT Lawyers of Coffs Harbour.
[3] On 20 October 2010 I issued a Finding and Order 1 to the effect that the correct employer of Ms Lindsay was the Board of Lifeline North Coast (NSW) (Lifeline) (the Board) and its members.
[4] Ms Lindsay was employed pursuant to three written contracts of employment. All three contracts of employment stated that Ms Lindsay was accountable to the Board.
[5] The first contract of employment 2 followed an application by Ms Lindsay for employment and an interview conducted by a panel of persons comprising at least one representative of the Board. It was signed by both the Secretary to the Board and the Chairman of the Board in those capacities. The Chairperson was the only person that Ms Lindsay dealt with in connection with the contract of employment. There was no mention of the Property Trust.
[6] The second contract of employment 3 recorded the Board as having key roles in relation to Ms Lindsay’s employment. There was no mention of the Property Trust.
[7] The third contract of employment 4 stated that the contract was entered into with the authority of the Board and that Ms Lindsay reported to the Board.
[8] Ms Lindsay’s job description 5 made no reference to the Property Trust.
[9] I considered the role of the Property Trust in the entity which is the Uniting Church in Australia (Uniting Church). After a consideration of the Constitution and Regulations of the Uniting Church I was not persuaded that the role of the Property Trust is consistent with its having a role as an employer in the type of work performed by the Board. The function of the Property Trust is to hold property on behalf of the Uniting Church. 6 It is not a member of the Church.7
[10] In contrast, the stated functions of Lifeline and the Board are consistent with the role of an employer employing a person in the position performed by Ms Lindsay which was “......providing benevolent services for those in need.” 8
[11] Mr Langler relied on a NSW business name extract declaring that the Corporation carrying on the business of Lifeline is the Property Trust. In response, Mr Gotting submitted that this document did not establish that the employees engaged by Lifeline and the Board were employed by the Property Trust. Mr Gotting’s submission in this regard, which I accept, was as follows:
“17. In any event, under the Regulations of the Uniting Church, the property of an institution shall be vested in an appropriate property trust (see Regulations of the Uniting Church, regulation 3.5.34(d)). Lifeline North Coast (NSW) is an institution. The Property Trust is an appropriate property trust. The business name of ‘Lifeline North Coast (NSW)’ is a form of property. The Property Trust thus holds the property constituted by the business name.” 9
[12] There were a number of other factors, in addition to the employment contract which confirmed that the applicant reported to the Board, that were persuasive in my identifying Lifeline and the Board as the employer of Ms Lindsay. 10 The Board authorised Ms Lindsay to engage in other remunerative work; accountability to the Board was confirmed by the job description; the Deputy Chairman of the Board conducted a staff performance appraisal of Ms Lindsay; the Deputy Chairman of the Board allegedly agreed to increase the applicant’s salary; concerns about Ms Lindsay’s implementation of directives concerning overtime management were raised by the Board; the Board made the decision to withdraw Ms Lindsay’s authority to manage financial matters; the Board corresponded directly with Ms Lindsay on issues relating to her employment and the Board acted to terminate the employment of Ms Lindsay.
[13] The Board’s conduct was consistent with it being the employer of Ms Lindsay. I decided that its conduct reflected the actual arrangement. The arguments presented by Mr Langler did not persuade me to the contrary. In particular, the applicant’s perception that her employment contract was with the Uniting Church operating through the legal entity of the Property Trust was not persuasive. Ms Lindsay’s belief is not a matter that can alter the facts of her employment. The overwhelming balance of the evidence supported a finding that Ms Lindsay’s employer was the Board and its members. For these reasons I made my Finding and Order of 20 October 2010.
SENIOR DEPUTY PRESIDENT
1 PR502667
2 Dated March 2001
3 Dated August 2001 for the position of General Manager from 2001 - 2004
4 Dated May 2005
5 See amended Application for Unfair Dismissal Remedy - Annexure B
6 See UCA Act Section 13(2)
7 See Clause 5 of the Constitution of the Church - see Pretorius Statement - Exhibit A
8 Whether through a telephone counselling service, face-to-face counselling, personal development programs, support groups or otherwise)
9 Exhibit Gotting 1 para 17
10 See amended Application for Unfair Dismissal Remedy - annexure C clause 3.2
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