Nigel Barron v Daromi Pty Ltd T/A RMD Tankers

[2016] FWC 1756

[2016] FWC 1756

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nigel Barron
v
Daromi Pty Ltd T/A RMD Tankers
(U2015/13870)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 21 MARCH 2016

Application for relief from unfair dismissal.

[1] Mr Nigel Barron alleged the termination of his employment by Daromi Pty Ltd trading as RMD Tankers was unfair. In his application he advised that he commenced employment in March 2014 and his employment ended 5 October 2015.

[2] At the hearing I granted Mr Silver permission to appear on behalf of the Mr Barron as it was submitted that it would be unfair not to permit him to be represented as he would be unable to represent himself effectively. Mr Barron is a truck driver with no familiarity with unfair dismissal law let alone the law related to associated entities. I accepted the submission of Mr Barron. Mr Brendan Hunt, who appeared for Daromi at the first hearing, did not object to permission being granted.

[3] In the employer response, Daromi stated that Mr Barron commenced full time employment on 4 December 2014 and his employment ended on 5 October 2015. It was submitted that because Daromi only had ten employees Mr Barron’s employment did not meet the minimum employment period.

[4] The matter was listed for a telephone conference on 21 December 2015 and a video hearing on 8 March 2016.

[5] Mr Barron gave evidence that he was employed by RMD Tankers as a casual employee from 20 February 2014 and he worked on a regular and systematic basis. He said that during his employment he would be transferred to work for other associated entities. He said he transferred back to RMD Tankers in November 2014.

[6] Mr Barron said he met with Mr Syned on 11 December 2014 and he was offered a joint management role with Mr David Christmass. He declined this offer. Mr Hunt put to him that he resigned but Mr Barron said he did not resign. Mr Hunt said that Mr Christianssen said he contacted Mr Barron after Christmas and asked him to come back. Mr Barron accepted that he was waiting for a phone call to tell him when he was to come back but said he never left his employment and did not work for anyone else in this period.

[7] Mr Barron said that over Christmas he took 12 unpaid days off but was still employed by RMD Tankers. He returned to work on 5 January 2015 and worked through until 5 October 2015. Mr Barron provided payslips which indicated that he had 3.07 hours accrued holiday leave at 3 December 2015. There is no evidence that this was paid out in either of the pay periods for which Mr Barron tendered payslips. It would have been expected that if Mr Barron’s employment ended on 14 December 2015 his accrued leave would have been paid out on termination.

[8] In the Respondent’s submissions it was said that Mr Barron worked for:

● RMD Tankers from 20/2/2014 -23/4/14 – casual;
● Modular Masonary 24/2/2014 – 12/11/14 – casual;
● RMD Tankers 13/11/2014 – 3/12/2014 – casual;
● RMD Tankers 4/12/2014 – 11/12/2014 – Full time;
● Employee resigned on 11/12/2014; and
● Employee recommenced employment 5/01/2015.

[9] Mr Hunt had no direct knowledge of what occurred in December 2014 as he had not commenced employment at that time.

[10] At the hearing on 8 March 2016, Mr Robert Sneyd, a director of Daromi, gave evidence that he had been told by Mr Christianssen that Mr Barron had resigned but he had no direct knowledge of what occurred. This is despite Mr Barron giving evidence that he met with Mr Sneyd on the 11 December 2015. He said he was regularly told that Mr Barron was resigning.

[11] Mr Sneyd filed a statutory declaration that he was the director of Daromi, Modular Masonary (WA) Pty Ltd and Sneyd Nominees Pty Ltd. I am satisfied that when Mr Barron worked for Modular Masonary, he was working for an associated entity of Daromi Pty Ltd. Mr Sneyd filed a spread sheet which recorded that Mr Barron’s hours of work from 20 February 2014 until his dismissal. That document has a notation that Mr Barron resigned some time between 17 December 2014 and 1 January 2015. No resignation letter was produced and no documentary evidence was produced to support the contention that Mr Barron resigned.

[12] I find that Mr Barron was employed by Daromi or an associated entity from 20 February 2014 until the termination of his employment in October 2015. I am not satisfied that he resigned his employment in December 2014. Accordingly, he has been employed for the minimum period of employment.

[13] If I am wrong about this, the question that must be determined is whether Daromi was at the relevant time a small business.

[14] In its employer response form Daromi said it had ten employees at the relevant time. In its submissions it listed 11 employees who were employed at the relevant time. While some of those were said to be casuals, the note to the form advises that only casual employees employed on a regular and systematic basis should be included. In another part of the document there are 13 employees listed.

[15] At the first hearing Mr Hunt, who was the manager of RMD Tankers, said that there were two employees on the second list who were not regular and systematic casuals namely Luke Fornaro and Peter Johnson. He also said there was an employee, Mr Bradley Spence, who was not on the list but was a contractor.

[16] In cross examination Mr Hunt did not accept that Mr Spence was an employee. Mr Hunt drove trucks or worked as an operator. Mr Spence said Mr Hunt was provided with the vehicles he drove by Daromi. Daromi also provided PPE safety gear. Mr Spence was paid for the hours he worked and he invoiced Daromi. Mr Hunt said Mr Spence had a business, Secure Freight Services, but he did not know if he worked for anyone else. Mr Hunt was not able to substitute another worker if he was not able to attend work. Daromi did not deduct tax or pay superannuation. Mr Spence’s hours of work varied depending on his availability. He was not rostered to work. He was rung up and offered work “as an extra employee.”

[17] In cross examination Mr Hunt said that Mr Robert Syned was not an employee of Daromi. Mr Hunt said that there were two other floating dock workers called Mark and Chris. Mr Hunt said that they did not work for Daromi but work for another company that Mr Syned owns but did not know the name of the company. Mr Hunt said that Mark and Chris were not employed on a regular and systematic basis. They might work 0, 1 or 2 shifts in a calendar month. He was aware of this as Daromi’s operation manager contacted them directly on an as needs basis.

[18] He agreed that there was a docking contract and that Mr Barron worked at times on that contact. Mr Hunt said the contract was with RMD. It was accepted by Mr Hunt that the contract required RMD Tankers to have ten employees available if needed by the Navy. He did not accept that this was a 24 hour a day requirement.

[19] After the first hearing Daromi was directed to file the following:

a. the Respondent’s payroll records as at 5 October 2015, including all contractors and employees.

b. a Statutory Declaration of Company Director in which he is required to disclose whether the company has any associated entities within the meaning of section 50AAA of the Corporations Act 2001.

c. further witness statements in support of the Respondent’s claim that it is a small business and that the Applicant has not served the minimum period of employment (Note: if the Respondent contends that any casual employee was not at the relevant time employed on a regular and systematic basis, the Respondent will need to produce evidence to support that contention. If the Respondent engaged independent contractors to perform work, the Respondent will need to produce evidence to support its contention that these persons are independent contractors and not employees).

d. the Applicant’s employment records from March 2014 detailing hours worked with the Respondent or any associated entity.

[20] Mr Sneyd produced a payroll activity statement dated 1 October 2015 on which there were 13 employees. The list included Ms Natalie Duncan and Mr Gilbert Harris. These employees were not included in the list of names provided at the first hearing.

[21] Mr Sneyd did not provide a further witness statement. None of the other witness statements filed in the proceedings addressed the issue of whether Daromi was a small business.

[22] Mr Barron alleged that in addition to the employees named on the list, there were other employees. Mr Barron alleged that Mr Sneyd and his sons were employees of Daromi because they often worked on jobs. I am not prepared to find that they were employees of Daromi without more information.

[23] Mr Barron alleged that Mr Spence was an employee. Mr Hunt had given evidence that Mr Spencer was a contractor. Despite the directions issued to Daromi, no evidence to support its contention that Mr Spence was a contractor was given to the Commission. Mr Sneyd said that Mr Spence was a sub-contractor but despite the direction had not provided any evidence to support his contention. He said that Mr Spence drove trucks and delivered goods for Daromi through his own business. Mr Sneyd said that on occasions Mr Spence drove a Daromi truck but sometimes he drove his own. He confirmed they provided him with PPE gear but did not deduct tax. Mr Sneyd denied there was a floating dock contract but accepted that Daromi supplied staff to tie up the boats. He said he had done this for two to three years. He was helping out a friend who ran the loading dock and he would be rung up and asked if he could supply labour.

[24] Mr Sneyd denied that Mr Johnson worked on a regular and systematic basis as he only worked two day in a year.

[25] I am not satisfied that Daromi had fewer than 15 employees at the time of the dismissal. Daromi provided a list of 13 employees and then Mr Sneyd provided a list which had an additional two employees listed on it. He also said there might have been more employees who were not on his list because they were not paid that week. The obligation is on Daromi to establish that it employed fewer than 15 employees. It has not provided sufficient evidence to enable such a conclusion to be reached.

[26] I have found that Mr Barron had been employed since 20 February 2014. I have found that he did not resign his employment in December 2014 and hence he has served the minimum employment period. His application will now be referred to arbitration.

DEPUTY PRESIDENT

Appearances:

Mr C. Silver for the Applicant.

Mr B. Hunt and R Sneyd for the Respondent.

Hearing details:

2015.

Melbourne:

December 21.

2016.

Melbourne:

March 8.

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