Ms Taisia Kaye v Versatile Ceramics

[2012] FWA 7990

[2012] FWA 7990

FAIR WORK AUSTRALIA

FURTHER DECISION

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

Ms Taisia Kaye
v
Versatile Ceramics
(U2012/10539)

COMMISSIONER ROE MELBOURNE, 18 SEPTEMBER 2012

Application for unfair dismissal remedy - identity of employer.

[1] On 15 August 2012 I issued a decision (PR527923) that:

“I therefore have decided that, subject to consideration of further submission, I will issue a further Order that the Application be amended to provide that the Respondent be named as Mr Marco Fahd and Mr Alex Fahd trading as Versatile Ceramics (ABN 44 249 024 176). I will provide Mr Marco Fahd and Mr Alex Fahd with 14 days in which to provide any submission as to why I should not make such an Order.”

[2] I subsequently received submissions on behalf of Mr Marco Fahd and from the Applicant.

[3] On 4 September 2012 I issued further directions that:

“Mr Marco Fahd and Mr Alex Fahd are directed to provide any submissions they may wish to provide in response to the submission of the Applicant of 4 September 2012, by 14 September 2012. Mr Marco Fahd and Mr Alex Fahd are specifically given the opportunity to respond as to why I should not make an Order in the terms now sought by the Applicant. A further hearing in respect to the matter of the name of the Respondent will be held should this be requested by Mr Marco Fahd and Mr Alex Fahd or More Ceramic Tiles Pty Ltd in their submission. Otherwise a further decision will be made based on the submissions received and an Order may be issued. The matter will then be listed for arbitration hearing.”

[4] In response I received from Mr Kiprovski a Statement from Marco Fahd dated 11 September 2012. That Statement and covering email from Mr Kiprovski did not request a further hearing. Consistent with the further directions I now issue this decision based upon the submissions of the Applicant and the Statement of Marco Fahd.

[5] In this matter there have been issues about the correct identity of the employer and also difficulties in contacting the employer.

[6] The Application lodged on 14 June 2012 originally referred to More Ceramic Tiles Pty Ltd (MCT). More Ceramic Tiles Pty Ltd advised FWA that they were not the Applicant’s employer but that they had contracted the Applicant for a period of two weeks. On 12 July 2012 Commissioner Jones issued an Order (PR526219) amending the Respondent to Versatile Ceramics (VC) (ABN 44 249 024 176).

[7] FWA has been unsuccessful to date in serving documents on Versatile Ceramics. The contact details provided by the Applicant have elicited responses from John Kiprovski of More Ceramic Tiles who has responded on behalf of Mr Marco Fahd. Mr Kiprovski says that Mr Marco Fahd has nothing whatsoever to do with whatever took place with Michelle Kaye (the Applicant) and that Mr Alex Fahd is not located at the address.

[8] The ASIC database provides information in respect to Versatile Ceramics including:

• It has been registered since 31/10/2006.



• The business address is PO Box 947 Seven Hills NSW 1730 Australia.



• The owners are Mr Alex Fahd and Mr Marco Fahd.

[9] The Respondent is advertised to be open for trading at:

Marco Fahd/Alex Fahd

Cnr Hume Hwy & Rockwood Road

Bankstown NSW 2200

[10] I have reached the following conclusions after considering the submissions.

1. In relation to Mr Alex Fahd and Mr Marco Fahd's potential liability as respondents I am satisfied that:

a. Current at the date of dismissal - the company searches confirm Mr Alex Fahd and Mr Marco Fahd remain joint proprietors of the Business Name - Versatile Ceramics (see SAl Global Business Name Extract).

b. At the date of dismissal the company search confirms that the address for the service of notices and address for place of business for business name Versatile Ceramics remains the same after Mr Marco Fahd became a proprietor of Versatile Ceramics (see SAl Global Business Name Extract).

c. As at 7 May 2012 Mr Alex Fahd's address (Unit 2, 23 Rowood Road Prospect, NSW 2164) (see attachment "E" to MCT's response) is the same as MCT's address and is the same address as registered in ASIC as MCT's registered office and principal place of business (at 5 May 2012). Mr Marco Fahd is the sole director and shareholder of MCT.

d. The applicant's employment was terminated after the date Mr Marco Fahd became joint proprietor of the trading name.

2. In relation to MCT's potential liability as a respondent I am satisfied that:

a. The applicant commenced working at More Ceramic Tiles Prospect (Unit 2, 23 Rowood Road Prospect, NSW 2164) on 11 February 2012.

b. More Ceramic Tiles Pty Ltd commenced paying wages and providing pay advices/slips to the applicant on 27th April 2012.

c. The offer and acceptance of the alleged "sale of the business name Versatile Ceramics to More Ceramic Tiles Pty Ltd" occurred in April 2012. The Invoice was paid on 23 April 2012 and an application to change proprietors of a business name was lodged on 26th April.

d. The applicant continued working at MCT Prospect until the applicant's employment was terminated.

e. The trading name Versatile Ceramics is an asset for the purposes of s.311 of the Act. On transfer of the trading name - Marco Fahd/MCT became the owner/ or had beneficial use of the trading name asset. A transfer of business for the purposes of the Act has occurred.

f. The Certificate of Registration of Business Name (see attachment "D" to MCT's response) confirms Versatile Ceramics is trading out of the same premises as More Ceramic Tiles:

Versatile Ceramics/ Marco Fahd

Principal place of business- 31 Stoddart Road Prospect NSW 2148 (same address as "MCT Prospect").

Other places of business: (including) Cm Rookwood Road & Hume H'Way Bankstown NSW 2200 (ie same address as "MCT Bankstown" and "VC Bankstown").

g. Up and until approximately March/April 2012 Versatile Ceramics traded at address: Crn Rookwood Road & Hume H'Way Bankstown NSW 2200.

h. In approximately March/April 2012 More Ceramic Tiles commenced trading at address: Crn Rookwood Road & Hume H'Way Bankstown NSW 2200.

i. In addition to the use of the Versatile Ceramics trading name, it also appears that MCT owned or had the beneficial use of premises previous owned by the entity previously trading as Versatile Ceramics.

j. The work the applicant performed for MCT is the same, or substantially the same, as the work the applicant performed for the entity previously trading as Versatile Ceramics.

[11] The position will not be clear until after the hearing of the evidence in this matter. Mr Marco Fahd and More Ceramics Tiles Pty Ltd deny any liability in this matter and continue to maintain that they are not the employer. However, I am satisfied that there is an arguable case with some strength that they are. Therefore, I will Order that they be added as respondents and the liability of each respondent will need to be determined at the final hearing of the substantive application for unfair dismissal after the testing of the evidence.

[12] I have therefore decided to issue further Orders changing the identity of the Respondent in this matter in the following terms.

I order that:

1. The Application be amended to provide that Mr Marco Fahd, Mr Alex Fahd and More Ceramic Tiles Pty Ltd be added as Respondents to the application.

2. The liability of each respondent will be determined at the final hearing of the substantive application for unfair dismissal.

[13] The matter will be now be listed for arbitration hearing and directions issued in the normal manner.

COMMISSIONER

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