Phillip Martin v Craig John Preece as Trustee for Shalom Trust and Craig John Preece as Trustee for Lacliana Unit Trust T/A Preece Martin

[2016] FWC 6162

[2016] FWC 9222

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Phillip Martin

v

Craig John Preece as Trustee for Shalom Trust and Craig John Preece as

Trustee for Lacliana Unit Trust T/A Preece Martin

(U2016/8701)

DEPUTY PRESIDENT WELLS HOBART, 22 DECEMBER 2016

Application for relief from unfair dismissal – jurisdictional objections – not an employee –

not a dismissal – minimum employment period – high income threshold – extension of time –

application dismissed.

Introduction

[1]        Mr Phillip Edward Martin (the Applicant) filed an application for an unfair dismissal

remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) on 4 August 2016 contending

he was unfairly dismissed from employment as an accountant with Preece Martin (the

Respondent). Mr Martin sought a remedy of compensation.

[2]        Mr Andrew Cameron, representing the Respondent, asserted multiple jurisdictional

objections asserting the Applicant is precluded from jurisdiction by Division 2 of the Act, as

the Applicant:

 was not an employee of the Respondent; but rather was a principal of Preece

Martin by way of a partnership agreement, up until 30 June 2016;

 had not fulfilled the minimum six months employment period as envisaged by

s.383(a) of the Act (if he was found to be an employee);

 exceeded the high income threshold (if he was found to be an employee).

[3]        Further, the Respondent submitted that the applicant lodged his application for unfair

dismissal remedy outside of the 21 day time limit, arguing that if any dismissal took place, it

occurred on 5 July 2016.

[4] Pursuant to s.394(2)(b) the Fair Work Commission (the Commission) can extend time

for the lodging of an unfair dismissal application if it is satisfied that there are exceptional

circumstances. In assessing whether exceptional circumstances exist, the Commission must

have regard to certain matters as contained in s.394(3). Only if it is satisfied that there are

exceptional circumstances can the Commission then exercise its discretion to decide whether

to extend time.
[2016] FWC 9222
The Proceedings

[5]        As there were a multiplicity of jurisdictional objections led by the Respondent, and the

matter was listed for one day, only the jurisdictional objections relating to the status of Mr

Martin as an employee could be dealt with on 28 November 2016. Some of the matters

relating to the extension of time also require findings as to the applicant’s employment status.

For this reason I proposed at hearing to firstly determine the initial three jurisdictional

objections detailed in [2] above. In the event that I rejected all of those objections, the parties

were advised I would then need to hear further from them in relation to the extension of time

matter.

[6]        Orders for the production of documents and for persons to be present to give evidence

were sought by Mr Martin and were granted on 17 November 2016. Following provision of

the produced documents Mr Martin chose not to continue with the orders for persons to be

present at the Commission. The matter proceeded to hearing with only Mr Martin and Mr

Preece giving evidence.

The evidence

[7]        It was common ground between the parties that Mr Martin was employed by the

1

predecessor company to Preece Martin on 10 August 1998 as a trainee accountant and that

from 1 July 2004, Mr Martin entered into a partnership with Mr Craig Preece. Both Mr Martin

and Mr Preece were the only principals of the accounting business Preece Martin. In 2008 Mr

Matthew Holmes was introduced to the Preece Martin partnership, albeit on an informal basis.

That partnership was formalised on 11 December 2012 when Mr Preece, Mr Martin and Mr

2

Holmes signed a partnership agreement.

[8]        The parties to the partnership agreement were Craig John Preece as trustee for Shalom

Trust, Phillip Edward Martin as trustee for Glenelm Trust, Matthew Ian Holmes as trustee for

3

Holmes Trust and Mr Preece, Mr Martin and Mr Holmes as individuals. The agreement also

provided that each individual was an employee of the Trust in which they were the sole

trustee.

[9]        Mr Holmes retired from the partnership some time in 2014, on a date not in evidence.

In September 2015, Mr Martin gave notice to Mr Preece, in accordance with the partnership

agreement that he intended to retire from the partnership on 30 June 2015.

[10]      Following Mr Martin’s notice of retirement to Mr Preece, they held discussions about

Mr Martin continuing to work at Preece Martin, managing clients and undertaking the role of

business manager. The previous business manager, Mr Sertori, had left employment. Minutes

4

of a staff meeting held on 14 June 2016 relevantly indicate the following:

“Phillip – Stepping down as principal of the business & going forward

Essentially Phillip’s role stays the same. One of the only changes will be on the PM

invoices. Asking for leave should still be directed to Phillip (via email), along with

Craig being CC’d in as well. Phillip will however continue to do the following:

 Work with Admin (who are doing really well),

 Fortnightly pays,

[2016] FWC 9222

 IT,

 Pay bills,

 PM accounts,

 Checking bank account.

While Ashley is away on holidays, Phillip has set some goals for Caralyn. To be

followed up.

There has also been a Business Management Committee created to meet Monthly on

nd

Wednesdays (starting from the 22 of June). This committee will include Alissa,

Anne-Marie, Leigh, Phillip and Craig…”

[11]      The evidence provides that at the time of the staff meeting on 14 June 2016, Mr Preece

intended to have Mr Martin continue to work at Preece Martin, following Mr Martin’s

retirement from the partnership. Mr Martin instructed a law firm, Rae and Partners, to act on

his behalf to conduct negotiations with Mr Preece (through Mr Preece’s representative Mr

Cameron) as to the terms of Mr Martin’s employment post 30 June 2016.

[12]      Between 23 June 2016 and 14 July 2016 there were several email exchanges between

Mr Martin and Mr Preece and between Rae and Partners and Mr Preece or Mr Cameron,

relating to the mode, terms and conditions of an employment contract for Mr Martin,

5

including the total duties that would be performed.

[13]      On 4 July 2016 at 8:54am Ms Crawford of Rae and Partners emailed Mr Cameron

requesting, “[w]ould you please advise as to your client’s intentions with respect to the

employment contract, as amended, noting that our client is expected to be at work today?” Mr

Cameron responded that day indicating two matters were still in consideration which related

to the amount of salary and possible future purchase of clients processes. A revised contract

was sent by Mr Cameron to Ms Crawford the following day. Ms Crawford forwarded the

contract to Mr Martin noting that the position description in relation to the business manager

6

role was still incomplete.

[14]      By 6 July 2016 Mr Martin had decided to decline the business manager role and only

undertake the client manager role. Ms Crawford advised Mr Cameron of this by email, noting

that Mr Martin had made handwritten amendments to the relevant pages of the agreement and

had also suggested an appropriate salary for the role.

[15]      Following this advice, Mr Preece decided on 14 July 2016, that the employment of Mr

Martin within the firm was not going to work. He decided not to continue the employment

7

negotiations.

[16]      Mr Preece’s evidence provided that Mr Martin had been employed by the firm Powell

Preece and Associates in 1998 but that employment ended when Mr Martin became a

principal in the firm on 1 July 2004 when Mr Powell left the partnership. Whilst Mr Preece’s

evidence was that a Director or partner of a business was also able to be an employee of the

business, he said this was not the case with himself and Mr Martin.

[17]      The Respondent contended that following 30 June 2016, Mr Martin was not an

employee of Preece Martin as the negotiations relating to his employment had not been

8

concluded. The timesheets	provided by the Respondent reflected that Mr Martin had attended
[2016] FWC 9222

the office on Friday 1 July 2016 and some work had been undertaken on that day. Time sheets

for 4 and 5 July 2016 indicated no work was undertaken, with the annotation by Mr Martin

9

that he had attended the office with “no employment contract”.

[18]      Further evidence provided that on 5 July 2016 Mr Martin emailed all administration

staff at Preece Martin advising them not to make any appointments for him that week as he

10

did not have an employment contract.

[19]      Mr Martin’s evidence was that whilst he was an employee of Glenelm Trust and a part

owner of the firm Preece Martin; he was also an employee of Preece Martin and had been

since he was first employed in 1998. Mr Martin relied on a number of documents to support

his assertion that he was an employee of Preece Martin, both prior, and subsequent, to 30 June

2016. This documentation included:

 Personal taxation returns, PAYG payment summaries and tax file number

declarations

 Superannuation payments paid by Preece Martin into Mr Martin’s self-managed

11

superannuation fund

 A pay slip dated April 2016 showing accrued leave

12

 A pay slip showing income for pay period 1 to 3 July 2016

 Emails from Mr Preece about Mr Martin continuing to work at Preece Martin

following retirement from the partnership

 Workers Compensation ‘Statement of wages and salary’ reports for years 2005 to

2015 showing the principal’s wages were included for workers compensation

13

purposes

 Fringe Benefits Tax returns for years 2010 to 2012 which included costs of Mr

Martin’s car parking

 List of emails sent and/or received from work email account from 1 July to 14 July

14

2016

 Documentation relating to work undertaken for a client of Preece Martin

15

subsequent to 30 June 2016

16

 Performance review documentation for Phillip Martin

 Signed acknowledgement of having received the Preece Martin Employee

17

Handbook.

[20]      It was argued by Mr Martin that as he had received Payment Summaries issued by

Preece Martin, and had fringe benefits tax paid on his behalf, this was clearly indicative of

him being an employee of Preece Martin.

[21]      The evidence provided that on 1 September 2015 Mr Martin wrote to Mr Sertori via

email (with a copy to Mr Preece) in the following terms:

“Can you please add me to the employee payroll starting today?

Gross annual wage $150,000 hourly rate $76.92.

Superannuation of $30000 per year. Superannuation guarantee $14250 per annum

balance $15750 salary sacrifice. Monthly payment $2500.

Accrue leave for me as you would any other employee.

[2016] FWC 9222

th

Cease the monthly drawings from 16 September 2015…”

[22]      In his oral evidence, Mr Preece advised that he never agreed to the changes requested

by Mr Martin to the “drawings” arrangements for the partnership and wrote to Mr Martin

advising him of that. Mr Preece confirmed that previous to the email to Mr Sertori of 1

September 2015, both he and Mr Martin had received profit sharing drawings from the

business each month.

[23]      On cross-examination Mr Preece confirmed that a PAYG payment summary can only

18

be issued to an employee.

[24]      During his cross-examination, Mr Martin was unable to satisfactorily explain how, if

he was an employee of Preece Martin, he could direct the nature of his wage payments,

including the rate of pay and superannuation, in the manner that he did, in his email to Mr

Sertori on 1 September 2015.

The Case

[25]      It should be noted that some of the Respondent’s submissions related to documents

which formed part of the documents ordered to be produced in this matter, but which were not

subsequently tendered into evidence. Therefore those documents are not formally before the

Commission. For clarity, I have not considered this documentation as part of my

determination.

[26]      The Respondent submitted that “Preece Martin” is a registered business name only and

not a separate legal entity; as such it cannot enter into contracts other than through the owners

of the business name; and therefore, Mr Martin could not have been employed by the business

name.

[27]      It was argued by the Respondent that Mr Martin’s tax returns showed no income from

Preece Martin for the 2013, 2014 and 2015 financial years. It was further argued that any

superannuation payments made by Preece Martin were not in accordance with the

Superannuation Guarantee legislation, but rather paid through the practice as salary sacrifice

19

contributions for tax reasons, and was not evidence of an employer/employee relationship.

[28]      The Respondent denied that the fortnightly amounts received by Mr Martin post 1

September 2015 were wages, but rather were profit sharing drawings paid fortnightly from the

firm’s accounting system. It was argued these could not be construed to be wages.

[29]      As to the employment of Mr Martin post 30 June 2016, the Respondent contends this

was to be effected by a written contract of employment, mutually agreed between the parties;

and that any staff meeting discussions cannot constitute a contract of employment. It was

argued that there was no agreed contract of employment, evidenced by Mr Martin’s lawyer’s

correspondence dated 5 July 2016 which provided that Mr Martin could not agree to any

20

contract without certainty of the duties to be performed. Any payment made to Mr Martin

between 1 and 5 July 2016 were said not to establish work as an employee, but rather as of

21

benefit to the previous partnership as evidenced by the timesheets.
[2016] FWC 9222

[30]      It was submitted by the Respondent that if Mr Martin was not found to be an employee

prior to 1 July 2016, then he could not evidence the required minimum employment period to

22

establish protection from unfair dismissal.

[31]      The Respondent’s argument as to Mr Martin being out of time in filing his application,

was that if Mr Martin was found to be an employee protected from unfair dismissal, his last

day of work at Preece Martin was 5 July 2016 and this was the date of termination. It follows

that the argument was that the application, having been filed on 4 August 2016, was filed nine

days late.

[32]      Mr Martin argued that he was an employee from 10 August 1998 until 1 July 2004 and

both a principal and employee of Preece Martin from 1 July 2004 up until 30 June 2016. He

submits that his employee status continued from 1 July 2016 until he was allegedly dismissed

on 14 July 2016. It follows that Mr Martin asserted he had established the required minimum

employment period under the Act, be it six months or 12 months for a small business.

[33]      Mr Martin submitted that whilst he resigned his employment in writing on 3 May

2004, this resignation was not accepted by his employer and he continued to work in the

business as both a principal and employee.

[34]      It was said by Mr Martin that each of the owners of the business had provided him

with a payment summary, had withheld tax from his wages and had paid employer

superannuation on his behalf. He submitted that he completed Tax File Number (TFN)

Declarations for each iteration of the partnership and that his employment transferred on 1

23

July 2016 to the new owners of the partnership. The Respondent argued that the provisions

of TFN Declarations was a taxation requirement for each new partnership, but did not indicate

24

an employment relationship between the Respondent and Mr Martin.

[35]      Mr Martin contended there was an employment relationship between himself and the

partnership of Preece Martin and this was brought to an end on 14 July 2016 when the

Respondent terminated him via email. In reply, the Respondent submitted that if Mr Martin

was found to be an employee, his last day of employment was 5 July 2016 when Mr Martin

emailed staff directing them not to make appointments for him as he had no employment

contract. As to the email of 14 July 2016, the Respondent submitted that that correspondence

25

was simply advice that the Respondent no longer wished to offer Mr Martin employment.

[36]      As to the high income threshold objection advanced by the Respondent, Mr Martin

submitted that his final rate of pay from 1 to 3 July 2016 was $67.18 per hour, which equated

to an annual salary of $131,001.00, which was lower than the current high income threshold

of $138,900.00. In the alternative, Mr Martin submitted that he was covered by the Clerks -

Private Sector Award 2010 as he was to carry out clerical duties as part of the business

manager role. The Respondent disputed Mr Martin’s submissions as to the high income

threshold, stating that Mr Martin’s own calculations for remedy in this matter involved a pay

rate of $76.92 per hour or approximately $150,000.00pa, the equivalent of his drawings when

he was a principal of the partnership. The Respondent also disputed that Mr Martin was or

would have been covered by the Clerks – Private Sector Award 2010, on the basis that part of

a person’s duties being captured by an award does not, in itself, establish coverage by that

26

award.

[2016] FWC 9222

Consideration

[37]      Relevant to the jurisdictional objections advanced by the Respondent, the Act

provides:

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.

[38]      The parties also disputed whether the Respondent was a small business. The

Respondent advised via it’s form F3 that it had less than 15 employees and was a small

business. Mr Martin asserted in his documentation that there were 15 employees or more

employed at Preece Martin, including himself. Should an employer be a small business, then

the minimum employment period required for an employee to establish protection from unfair

dismissal would be one year as at the time of dismissal. There was no evidence led by the

Respondent at hearing as to its number of employees. However, this matter is somewhat moot

as it relates to the jurisdictional issues. If I were to find that Mr Martin was both a principal

and an employee, prior to his retirement from the partnership, then he would have established

an employment history far in excess of one year (i.e. from 10 August 1998). If I were to find

that Mr Martin was not an employee prior to 30 June 2016, but was an employee from 1 July

2016, he cannot establish even a six month minimum employment period.

[39]      It was common ground between the parties that accountants are not covered by a

modern award and that no enterprise agreement applied to Mr Martin or any employee of

Preece Martin. Accordingly, the application of the high income threshold may be relevant in

this matter.
[2016] FWC 9222
Authorities

[40]      In Romero & Others v M R Auty and G K Keith as Liquidators of Westbury Joinery

Company Pty Ltd [2000] VSC 462, the Supreme Court of Victoria considered the

identification of which company was the relevant employer. Whilst the circumstances of that

decision are not wholly on point, the decision is relevant to some of the matters requiring

determination in Mr Martin’s application. Her Honour Warren J held:

“9. As already stated, the issue before the court is the identity of the corporation with

which the employees had a contract of service: see AIEU v WP Insurance Services

(1982) 42 ALR 598. The courts have adopted the approach that the indicia relevant to

the determination of whether a contract of service or a contract for service exists is of

limited assistance in the identification of the relevant employer. The courts have taken

the view that the totality of the relationship should be considered: see Stevens v

Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 23-29, 36-39 and 49; Zuijis v

Worth Bros Pty Ltd [1955] HCA 73; (1955) 93 CLR 561. It has been held, further, that

the belief of the employees as to the question of their employer is admissible and is

entitled to weight by the Court: see Pitcher and Anor v Langford and Anor (1991) 37

IR 338.

10. Ultimately, the whole of the circumstances surrounding the employment

relationship including the subsequent conduct of the parties is relevant to the

assessment to be made by the court. Of course, documents are relevant but not

necessarily determinative. Ultimately the decision rests on the nature of the business in

which the relevant employee worked and conversations and conduct at the time of the

original engagement of that employee: see Textile Footwear and Clothing Union of

Australia v Bellechic Pty Ltd & Ors, unreported judgment of Ryan J of the Federal

Court of Australia, 19 November 1998, (1998) 1465 FCA 19.”

[41]      The decision of Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR (Stevens),

a High Court decision on appeal from the Full Court of the Supreme Court of Victoria,

involved the liability of a principal for an injury sustained by a worker in the performance of

work. The matter necessitated findings of whether the relationship between Brodribb and a

worker, was one of employer and employee, or one of principal and independent contractor.

In Stevens, his Honour Mason J identified those matters which were indicative of establishing

an employment contract:

“A prominent factor in determining the nature of the relationship between a person who

engaged another to perform work and the person so engaged is the degree of control

which the former can exercise over the latter. It has been held, however, that the

importance of control lies not so much in its actual exercise, although clearly that is

relevant, as in the right of the employer to exercise it: Zuijs v. Wirth Bros. Pty. Ltd.

(30); Federal Commissioner of Taxation v. Barrett (31); Humberstone v. Northern

Timber Mills (32). In the last-mentioned case Dixon J. said:

“The question is not whether in practice the work was in fact done subject to a

direction and control exercised by an actual supervision or whether an actual

supervision was possible but whether ultimate authority over the man in the

performance of his work resided in the employer so that he was subject to the

latter’s order and directions.”

[2016] FWC 9222

But the existence of control, whilst significant, is not the sole criterion by which to

gauge whether a relationship is one of employment. The approach of this Court has

been to regard it merely as one of a number of indicia which must be considered in the

determination of that question: Queensland Stations Pty. Ltd. V. Federal

Commissioner of Taxation (33); Zuijs Case; Federal Commissioner of Taxation v.

Barrett (34); Marshall v. Whittaker’s Building Supply Co. (35). Other relevant matters

including, but are not limited to, the mode of remuneration, the provision and

maintenance of equipment, the obligation to work, the hours of work and provision for

holidays, the deduction of income tax and the delegation of work by the putative

employee.”

Findings

[42]      I accept the evidence that it is possible for a Director of a Company to also be an

employee, however I am not persuaded this is the case here. The key to establishing whether a

person is an employee is the “reality” of the relationship that existed. Mr Martin finished as an

employee in 2004 when his trust, Glenelm Trust, became a partner of Preece Martin. I find his

submission that his resignation was not accepted by himself and Mr Preece, the Principals at

the time, to be disingenuous. There is no express indication in the partnership agreement that

the individuals, Mr Preece, Mr Martin and Mr Holmes (as he then was) were employees of

Preece Martin; to the contrary it shows that legally they intended to be Principals and also

employees of each of their respective trusts.

[43]      Mr Martin was able to direct the business manager, Mr Sertori to change monthly

profit share drawings to fortnightly payments, totalling $150,000.00 per annum, some of

which was then salary sacrificed to his self-managed superannuation fund. Mr Martin further

instructed Mr Sertori to start an accumulation of annual leave balance.

[44]      There is no evidence before me that indicates Mr Martin worked at the direction or

was delegated work by anyone.

[45]      I do not accept the submission that because Mr Martin had received his own copy of

the Preece Martin Employee Handbook; and that he may have been covered under Preece

Martin’s workers compensation cover (a matter that was not established to any satisfaction at

hearing); he was a bona fide employee. I am satisfied those matters were administrative in

nature only and did not carry the evidentiary burden of which Mr Martin asserted.

[46]      I accept Mr Preece’s uncontested evidence that the payroll system automatically

allocated accrued leave to an individual but that the Principals arranged between themselves

the amount of leave they would access and made the required journal entries to leave balances

later.

[47]      It is not unusual that in an egalitarian workplace that a principal of a business would

subject himself or herself to the same performance testing as employees. Whilst Mr Martin

had performance reviews undertaken of his work, this is not indicative of him being an

employee.

[48] It is clear from the oral evidence of both Mr Preece and Mr Martin, that both

individuals undertook actions to minimise either their personal responsibility for payment of
[2016] FWC 9222

income and/or payment of payroll tax for the business. Of note is the evidence of Mr Martin

when he confirmed that changes were made to the way individual Principals of the business

were remunerated post the 2012 financial year. He advised that “…by not paying a wage, we

27

didn’t pay payroll tax” . This ensured the firm stayed under the $1 million cap which

28

required the payment of payroll tax. This evidence was ostensibly confirmed by Mr Preece.

[49]      Mr Martin was remunerated as a Principal of the business. I do not accept Mr Martin’s

characterisation of his profit sharing drawings as ‘wages’ simply because he chose to call

them that and received them fortnightly rather than monthly or at some other time period.

[50]      Having considered the evidence in this matter and the authorities referred to above, I

am of the view that the remuneration entered into by the partnership and Mr Martin, following

him becoming a principal in 2004, were artificially constructed arrangements to minimise

taxation obligations for the partnership and the individual principals. These arrangements

were subject to change depending on amendment made to taxation legislation and were

designed to affect the most advantageous taxation outcomes for the partnership and the

individual principals. None of the payments made by Preece Martin, such as superannuation

or fringe benefits tax established, in my view, a legitimate employee status for Mr Martin

from 1 July 2004 to 30 June 2016.

[51]      All of these matters establish, in my view, that Mr Martin operated as a principal in the

business and was not an employee when considering the whole of the circumstances

surrounding Mr Martin’s working relationships.

Conclusion

[52]      Having regard for the authorities and my findings mentioned above I am satisfied that

Mr Martin was not an employee of Preece Martin at the time he was a Principal of the

business, that is from 1 July 2004 to 30 June 2016, and therefore he cannot establish that he

was an employee with a minimum employment period of six months at the 14 July 2016. Mr

Martin is not a person protected from unfair dismissal as contemplated in s.382(a) of the Act.

I uphold that jurisdictional objection of the Respondent.

[53]      As I have determined that this objection is upheld, there is no need for me to

determine the other jurisdictional objections, which were that Mr Martin was not an employee

at the time of the alleged dismissal, and that he was excluded from protection due to the high

income threshold. It is also not necessary for me to consider the extension of time matter.

[54]      However, for the sake of clarity, I am satisfied that Mr Martin received payment from

Preece Martin for work undertaken from 1 to 3 July 2016 in the capacity of a casual employee

for that period of time. This employment, however, would not establish Mr Martin’s

protection from unfair dismissal pursuant to s.384(2)(a). Whilst there was an intention of the

parties for Mr Martin to be employed at Preece Martin subsequent to 30 June 2016, it is clear

that any employment would be predicated on negotiations that were occurring between the

parties’ legal representatives. I do not consider, on the evidence before me, that the

negotiation of that employment contract, which occurred during June and July 2016,

constituted a definite offer of employment and therefore no definite acceptance of that offer

could have been affected.

[2016] FWC 9222

[55]      I dismiss Mr Martin’s application for unfair dismissal remedy.

DEPUTY PRESIDENT

Appearances:

Mr P Martin, the Applicant

Mr A Cameron, for the Respondent

Hearing details:

Launceston

2016

28 November

Printed by authority of the Commonwealth Government Printer

<Price code C, PR588944>

21

Exhibit R4

22

Exhibit R10, paragraph 70

23

Exhibit A10 – Applicant’s closing submissions, page 3

24

Exhibit R11 – Respondent’s in-reply submissions, page 3, paragraph 9

25

Ibid, page 2, paragraphs 1, 4

26

Ibid, page 5, paragraphs 2, 3

27

PN1387

28

PN1224

1

Exhibit A4 – Witness Statement of Phillip Martin, annexure F1

2

Exhibit R6 – Partnership Agreement executed on 11 December 2012

3

Ibid, see Recitals

4

Exhibit A5

5

Exhibit A4, attachments X, &, Z, AA, AB, AD, AE, AF and Exhibit R1

6

Ibid, attachment AH

7

PN401-402

8

Exhibit R4 – Timesheets for Phillip Martin

9

Ibid

10

Exhibit R7

11

Exhibit A4, attachments B, C, D

12

Ibid, attachment F2

13

Exhibit A1

14

Exhibit A6

15

Exhibit A8

16

Exhibit A7

17

Exhibit A9

18

PN599, PN954

19

Exhibit R10 – Respondent’s closing written submissions, paragraphs 12 and 13

20

Exhibit R1