Robert Crofft v BT Transport & Logistics Pty Ltd
[2022] FWC 1839
•19 July 2022
| [2022] FWC 1839 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Robert Crofft
v
BT Transport & Logistics Pty Ltd
(U2022/5206)
| COMMISSIONER WILSON | MELBOURNE, 19 July 2022 |
Application for an unfair dismissal remedy – jurisdictional objections – minimum employment period met – extension of time granted
On 9 May 2022 Mr Robert Crofft (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy with respect to the termination of his employment by BT Transport & Logistics Pty Ltd (the Respondent or BT Transport).
The Respondent has raised two jurisdictional objections to this application which are the subject of this decision. The objections are that the application was not made within the 21-day time limit provided by the FW Act and that Mr Crofft did not serve the minimum employment period.
At a determinative conference conducted by me Mr Crofft was assisted by his partner, Ms Lawdorn, who is not a legal practitioner. Jessica Whitfield, the Compliance, HSSE & Quality Manager for BT Transport, appeared on behalf of the Respondent.
The initial listing of this matter for hearing, on 17 June 2022 via Microsoft Teams, was unsuccessful due to Mr Crofft experiencing significant connectivity difficulties which prevented him from effectively participating. The hearing was accordingly adjourned to 28 June 2022 at which time Mr Crofft was instructed to ensure he had sufficient connectivity to participate. This was accomplished and the hearing proceeded on 28 June via Microsoft Teams.
Background
It is uncontroversial Mr Crofft was first employed by BT Transport on 20 August 2019. It is then disputed whether his employment following this was continuous service for the purposes of the FW Act until the date of the dismissal about which Mr Crofft has made his s.394 application. This is the subject of further consideration below. However, it is agreed between the parties that Mr Crofft was advised of termination by BT Transport on 6 April 2022 and his employment with BT Transport ceased on 11 April 2022.
It is agreed between the parties that in or around late August or September 2021 Mr Crofft ceased work for the entity BT Transport and began working for another company, Mack Trans Australia Pty Ltd (Mack Trans). It is further agreed that in January 2022 Mr Crofft ceased work for Mack Trans and recommenced work for BT Transport.
Following his dismissal from BT Transport, Mr Crofft posted a Form F2 – Unfair dismissal application from a Western Australia (WA) post office on 23 April 2022, twelve days after the dismissal took effect. The application was then received in the Melbourne offices of the Fair Work Commission (Commission) on 9 May 2022, 28 days after the dismissal took effect, meaning the application was made outside of the time period permitted by the FW Act.
Extension of Time
Section 394 (2) of the Act requires that an application such as Mr Crofft’s must be made within 21 days after the dismissal took effect. The Commission however may allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
As a result of the late application I issued directions on 20 May 2022 instructing the Applicant to file submissions and any relevant evidence as to whether an extension of time should be granted in order to assist the Fair Work Commission in determining whether there were exceptional circumstances in this case.
The Applicant provided a response on 23 May 2022, stating that his application had been posted on 23 April 2022, 12 days after the dismissal took effect, supporting this contention with a scanned postal receipt. This was also evidenced to the Commission by the envelope in which the application arrived, a scanned copy of which was provided to the parties on 16 June 2022, and which was marked by the postal service as having been sent from Queens Park, WA on 23 April 2022. The mailing receipt has the words “Queens Park” visible and the envelope shows 6107 as the mailing postcode, which is the postcode for several areas, including Queens Park, WA.
While the Respondent’s outline of argument noted the fact that the application was filed out of time as a jurisdictional objection, it did not provide submissions of substance in support of their position.
I now consider whether there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.
The material provided by the Applicant in response to the Commission’s request that he demonstrate there were exceptional circumstances satisfies the Commission that on 23 April 2022 the Applicant posted his application to the Commission office in Perth. A redirection stamp masks most of the handwritten address, however the words “Fair Work Commission” and “Perth … 6000” are readable.
The envelope containing the application was delivered on 9 May 2022 to GPO Box 1994 Melbourne, Victoria, 3001. This is the Melbourne GPO Box of the Commission.
What occurred in between, unbeknownst to the Applicant, was the automatic redirection of the Applicant’s mailed application from the Commission’s Perth GPO Box to the Commission’s Melbourne GPO Box. This occurred because the Commission’s Perth Registry had previously put in place arrangements for the ongoing redirection of mail as a COVID -19 precaution.
Mr Crofft’s submission to the Commission on the subject of the late application is that he posted the application form on 23 April 2022 at 11:28 WA time, and I am satisfied this was the case. I am further satisfied that had the Applicant’s mailed application not been redirected it would, on the balance of probability, have been received in the Commission’s Perth office within 21 days of his dismissal taking effect.
The reason for the delay in this case was the redirection of the Applicant’s mail from Perth to Melbourne for which he was not responsible.
Consequently, I am satisfied that there was an acceptable reason for the delay in the making of Mr Crofft’s application for unfair dismissal remedy.
Did the Applicant first became aware of the dismissal after it had taken effect?
The Applicant became aware of his dismissal before it took effect, with that fact potentially leaning against an extension of time (for the reason that such an employee has time to consider and file an unfair dismissal application).
Was any action taken by the Applicant to dispute their dismissal?
The only action taken by Mr Crofft to dispute his dismissal was to lodge this application. In the circumstances I consider this to be a neutral factor in my decision about an extension of time.
Prejudice to the employer (including prejudice caused by the delay)
The delay in making the application in this case will not prejudice the employer. This was agreed by the Respondent in their outline of argument.
The merits of the application
The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.
In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an applicant has a sufficient case on the merits, accepting that in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters.[1] Instead of a detailed consideration of the merits of a matter, the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[2]
There is limited material before me addressing the merits of Mr Crofft’s application. In relation to the fairness of the Applicant’s dismissal, the only submission advanced by the Respondent was that the Applicant had not satisfied the minimum employment period and the termination took effect during Mr Crofft’s probationary period. As I outline below, I do not accept this contention.
In Mr Crofft’s application, he detailed his belief his dismissal was unfair as he was not given any reason for his dismissal other than it being “one of those things”. Mr Crofft provided some screenshots of text messages in support of this submission.
The lack of any response by the Respondent to the contentions made by Mr Crofft regarding the unfairness of his dismissal leaves me uncertain as to the merits of each party’s case. Accordingly, I find that consideration of the merits of the case is a neutral factor in my consideration as to whether an extension of time should be granted for the making of Mr Crofft’s unfair dismissal application.
Fairness as between the person and other persons in a similar position
The Respondent stated in their outline of argument that there would be no unfairness between the Applicant and other employees or former employees in a similar position should the extension be granted.
I am satisfied there are exceptional circumstances that would warrant an extension of time for the making of Mr Crofft’s application.
As to the reason for the filing delay, addressing the criterion in s.394(a), Mr Crofft was not to know that despite sending his application of the FWC in Perth, located in the same State as him, that it would be redirected to Melbourne and that it would take more than two weeks for the redirect to take place. His explanation as to the reason for the delay is simple, as well as acceptable.
Whereas the consideration in s.394(b), addressing the matter of when he first became aware of his dismissal leans against an extension of time it does not do so decisively and not in a manner as to overcome his reasoning for the delay; he could not have acted sooner since he was not aware of the postal problems. None of the considerations in s.394(c) – (f) resolve against a finding of exceptional circumstances. Accordingly, an extension of time for the making of Mr Crofft’s application will be given, with the order to be issued extending the period to 9 May 2022.
Minimum Employment Period
As set out above, BT Transport submit that Mr Crofft has not completed the minimum employment period and that he only worked for them for a period of 10 weeks and 6 days. That contention requires consideration against several parts of the FW Act.
Legislation
Section 382 (a) of the Act provides as follows:
“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.”
It is not necessary to deal with the factors in s.382 (b) of the Act here, as I am dealing only with the minimum employment period.
Section 384 (1) of the Act provides the meaning of “period of employment”:
“382 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.”
Section 384 (2) of the Act deals with when casual employment counts towards a period of employment and it is not necessary to deal with that provision.
Section 383 of the Act provides the meaning of “minimum employment period”:
“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.
Background
The Respondent submits that Mr Crofft’s initial period of employment with BT Transport began on 20 August 2019 and ceased on 26 August 2021. They submit that neither this period, nor Mr Crofft’s period of employment at Mack Trans from September 2021 to January 2022, should be counted for the purposes of determining whether he has met the requisite minimum employment period with BT Transport.
In support of this, the Respondent filed a document titled ‘Termination/Resignation’ which stated Mr Crofft notified the company on 19 August 2021 that he would be leaving BT Transport on 26 August 2021 as he was ‘Going to work for Macktrans’. They also filed re-employment paperwork completed by Mr Crofft upon his re-employment with Mack Trans: a tax file number declaration, a superannuation choice form, an induction checklist and evidence of completion of induction modules. A payslip with a payment date of 25 August 2021 evidencing Mr Crofft’s payment of his annual leave entitlements by BT Transport on that date was also filed by the Respondent.[3]
In Mr Crofft’s statement of evidence, he submitted that “In September 2021 I transferred to Mactrans WA which was still within BT Transport”.[4] In the hearing of the matter on 28 June 2022, in response to a query as to the significance of that statement, Mr Crofft stated:
“They're sister companies, they're owned by - Josh Beattie, which is Mal Beattie's son - owns Macktrans and Mal Beattie owns BT Transport. It was a joint venture on the same job, so, yes, those parties are doing the same job and that's where the job come about that I was to go over to Macktrans.”[5]
In response to this, Ms Whitfield submitted in the hearing that:
“…in regards to Macktrans and BT Transport being a sister company, I can confirm that, yes, there is a relation between the two companies. The relation is solely that the two CEOs/directors are related, being father and son. However, they are both two separate companies. They are run separately, separate directors, separate ABNs. They are not associated as the same company.”[6]
Ms Whitfield then confirmed that the CEO and director of BT Transport was Mal Beattie and that the CEO and director of Mack Trans was Joshua Beattie, with Mal Beattie being the son of Joshua Beattie.
Ms Whitfield confirmed the main business address of BT Transport as being 14-16 Angle Vale Crescent Burton, South Australia, and was unable to give the entire business address of Mack Trans, but stated she knew it to be in Virginia, South Australia. When asked whether Mack Trans operated from the same premises as BT Transport Ms Whitfield stated, “They do now, but did not at the time. But only in South Australia, nowhere else. There's a section of the office that is leased to Macktrans.”[7]
When asked, Ms Whitfield was unable to give evidence as to the shareholders of either BT Transport or Mack Trans. She was also unable to specify whether the financial reports of Mack Trans were incorporated into those of BT Transport, or whether the financial reports of BT Transport were incorporated into those of Mack Trans. When asked whether a chief financial officer would be able to provide the Commission with evidence on those subjects if asked, Ms Whitfield said they would be.
On this basis, it was determined that following the hearing the Commission would provide information to both parties regarding the concept of associated entities under the relevant legislation and that the Respondent would be given a week to provide a response to the question of whether Mack Trans and BT Transport are associated entities. The Applicant would then be given some time to respond to those submissions, after which point a determination would be made and issued. This was consented to by both parties.
At 12:21PM on 1 July the parties were sent the following correspondence:
“I refer to the above matter. As foreshadowed in the Hearing before Commissioner Wilson on 28 June 2022, the Respondent is directed to file further materials, as specified below, by no later than 4PM 8 June 2022. For service, please send the materials to [email protected] and copy the Applicant into the correspondence.
The material requested is a statement prepared by either a Chief Financial Officer or qualified accountant as to the question of whether BT Transport & Logistics Pty Ltd and Macktrans Australia Pty Ltd are properly considered to be ‘associated entities’ within the meaning given by s.50AAA of the Corporations Act 2001 (Cth). A copy of that section is attached for your reference.
This materials is necessary for the Commissioner’s determination of whether there was ‘continuous service’ by the Applicant within the meaning of s.22(7) of the Fair Work Act 2009 (Cth) by virtue of a transfer of employment between associated entities. This is, in turn, necessary for his determination of whether the Minimum Employment Period necessary for an Unfair Dismissal application has been served by the Applicant.
Mr Crofft will be given 7 days after BT Transport & Logistics Pty Ltd has provided its material on the above question to provide his own views. After that time Commissioner Wilson will proceed to determine the question of whether the minimum employment period has been served and, if necessary, the matter of an extension of time for the filing of Mr Crofft’s application on the basis of all the material before him.
On 6 July the Respondent provided a letter from Letcher Moroney Chartered Accountants which stated that, having had regard to s.50AAA of the Corporations Act 2001, they were unable to determine if the parties are associated entities “due to the complex nature of the section.” In lieu of this, the following facts were provided:
“1. The shareholder and director of Macktrans Australia Pty Ltd is Mr Joshua Beattie.
2. The director of BT Transport & Logistics Pty Ltd is Mr Malcolm Beattie.
3. The shareholder of BT Transport & Logistics Pty Ltd is Tympat Holdings Pty Ltd.
4. Joshua Beattie is Malcolm’s son.
5. The businesses are run separately by Malcolm and Josh.
6. The businesses do have some shared resources in administration and the workshop.
7. The companies are grouped for payroll tax purposes from 1 July 2021.”
In response, on 12 July Mr Crofft filed correspondence with the Commission which included ASIC search extracts for BT Transport and Logistics Pty Ltd and Tympat Holdings Pty Ltd, as well as several job advertisements from Facebook. Mr Crofft’s submissions about this material included;
“1. Shareholder and Director of Macktrans Australia Pty Ltd is Joshua Robert Beattie
2. Shareholder of BT Transport & Logistics Pty Ltd is Tympat Holdings Pty Ltd that is owned by Joshua Beattie
3. The business advertises for drivers together, attached is proof of advertisements
4. Both business’s work side by side with one another on jobs
5. Both business share workshops and workers i.e., Chris Simpson was employed and paid as a MackTrans Australia operations manager and yet he was in charge of BT Transport workers in Melbourne see ads attached.
I have attached current company extracts for proof of BT transport and Logistics and Tympat Holding showing shareholders and directors, to further validate my claim that Joshua Beattie and BT Transport are “associated entities”.
I have also attached multiple advertisements for BT Transport and Logistics that state the contact person who actually worked for MackTrans Australia. (ad states his email address) also ads were placed while Robert was still employed with BT Transport and Logistics, labeled AD 2 through 6
There is also a newer advertisement from a MackTrans Australia worker who operates the Mackay based depot advertising for a HC/MC driver for both said companies as one company, as attached labeled Ad 1.
If BT Transport and Mack trans Australia are not associated then why are there BT Transport drivers driving Mack trans trucks and Amoco trucks in which both companies are owned by Joshua not Malcolm.
BT Transport and Logistics’ shareholder is TYMPAT HOLDINGS in which the director and secretary are both Joshua Robert Beattie, the director and secretary of Mack trans Australia.
I would also like to add that the shareholder of TYMPAT HOLDINGS is Dion Moroney as well as Josh Beattie in joint shares.”
At the Commission’s request Mr Crofft later provided an ASIC search report for Macktrans Australia Pty Ltd as well as clarifying the dates of the job advertisements.
Having received this information I formed the view that certain findings could be made from Mr Crofft’s supplementary materials as well as other material and evidence before the Commission. The matters about which I considered findings could be made were identified to the parties in the following manner;
“1. In relation to the job advertisements provided by Mr Crofft;
a.Ad 1 – dated 13 June 2022 does not assist resolution of the matter before the Commission, with the advertisement stating that “Macktrans australia/Beatties transport, is looking for an up comer to the industry”;
b.Ad 2 – dated 4 February 2022 made on the account of BT Transport & Logistics is for an interstate MC driver in Campbellfield, Vic and seeks responses by calling Chris on [phone number omitted] or by email to [email address omitted];
c.Ads 3 and 6 – dated 17 February 2022 made on the account of BT Transport & Logistics are for a yard hand in Campbellfield, Vic with an HC licence being desirable and seeks responses by calling Chris on [phone number omitted] or by email to [email address omitted];
d.Ads 4 and 5 – dated 17 and 23 February 2022 made on the account of BT Transport & Logistics are for an Operations Assistant in Campbellfield, Vic and seeks responses by calling Chris on [phone number omitted] or by email to c[email address omitted];
Mr Crofft’s former employer, BT Transport & Logistics Pty Ltd, is owned by Tympat Holdings Pty Ltd, and its Secretary and Director is Malcolm Beattie.
Tympat Holdings Pty Ltd is owned jointly by Josh Beattie and Dion Moroney and its Secretary and Director is Josh Beattie.
The Director of Mack Trans Australia Pty Ltd is Josh Beattie and its shares are owned by Josh Beattie Holdings Pty Ltd with Letcher Moroney stating Josh Beattie is the shareholder.
Letcher Moroney states after making reference to Mack Trans Australia Pty Ltd, BT Transport & Logistics Pty Ltd and Tympat Holdings Pty Ltd that “The companies are grouped for payroll tax purposes from 1 July 2021”. In respect of such grouping the Payroll Tax Act 2009 (SA) provides that “Corporations constitute a group if they are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth” (s.70). In turn, s.50AAA(1) of the Corporations Act 2001 provides that one entity is an associated entity of another if any of the subsequent subsections are satisfied, with subsection (2) providing that “ (2) This subsection is satisfied if the associate and the principal are related bodies corporate.
On the basis of all the above matters Commissioner Wilson considers that a finding is open to him that BT Transport & Logistics Pty Ltd and Mack Trans Australia Pty Ltd are Associated Entities and that when Mr Crofft’s employment moved in August 2021 from BT Transport & Logistics Pty Ltd to Mack Trans Australia Pty Ltd that move was a transfer of employment for the purposes of s.22(7) of the Fair Work Act 2009. Consequential to such would be two further findings;
For reason of s.22(5) of the Fair Work Act, it appears all three periods of Mr Crofft’s employment may be treated as continuous service; namely;
a. A first period with BT Transport & Logistics Pty Ltd, between 20 August 2019 and 26 August 2021;
b. A period with Mack Trans Australia Pty Ltd, between August or September 2021 and January 2022; and
c. Finally a period with BT Transport & Logistics Pty Ltd, from 20 January 2022For reason of ss.383 – 384 of the Fair Work Act, a finding may be made that Mr Crofft has served the minimum employment period and was at the time he was dismissed a person protected from unfair dismissal.”
The parties were invited to provide their views about these preliminary findings by no later than 4 PM Monday 18 July 2022, however none did so.
Consideration
Having had regard to the materials and submissions of the parties, I have come to conclude the following is an accurate description of the structure of the three relevant companies, based on the ASIC company extracts and the letter from Letcher Moroney Chartered Accountants:
Mr Crofft’s former employer, BT Transport & Logistics Pty Ltd, is owned by Tympat Holdings Pty Ltd, and its Secretary and Director is Malcolm Beattie.
Tympat Holdings Pty Ltd is owned jointly by Josh Beattie and Dion Moroney and its Secretary and Director is Josh Beattie.
The Director of Mack Trans Australia Pty Ltd is Josh Beattie and its shares are owned by Josh Beattie Holdings Pty Ltd with Letcher Moroney stating Josh Beattie is the shareholder.
Critically, the letter from Letcher Moroney states, after making reference to Mack Trans Australia Pty Ltd, BT Transport & Logistics Pty Ltd and Tympat Holdings Pty Ltd that “The companies are grouped for payroll tax purposes from 1 July 2021”.
In respect of such a grouping the Payroll Tax Act 2009 (SA) provides that “Corporations constitute a group if they are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth”.[8] In turn, s.50AAA(1) of the Corporations Act 2001 provides that one entity is an associated entity of another if any of the subsequent subsections are satisfied, with subsection (2) providing that “This subsection is satisfied if the associate and the principal are related bodies corporate.”
Based on the above, I find that BT Transport and Mack Trans are associated entities, and that when Mr Crofft’s employment moved in August 2021 from BT Transport to Mack Trans that move was a transfer of employment for the purposes of s.22(7) of the FW Act.
The consequences of the above determination are two further findings. By way of s.22(5) of the FW Act, all three periods of Mr Crofft’s employment should be treated as continuous service, these being: a first period with BT Transport between 20 August 2019 and 26 August 2021, a second period with Mack Trans between August or September 2021 and January 2022, and a third period with BT Transport from 20 January 2022. Accordingly, for reason of ss.383 – 384 of the FW Act, I find that Mr Crofft has served the minimum employment period and was at the time he was dismissed a person protected from unfair dismissal.
Conclusion
For these reasons, the jurisdictional objections raised by the Respondent are dismissed. The Applicant is found to have served the Minimum Employment Period and an Extension of Time is granted for the filing of his s.394 application. Mr Crofft’s application for an unfair dismissal remedy will now be the subject of programming for a hearing on its merits.
COMMISSIONER
Appearances:
L Lawdorn on behalf of the Applicant
J Whitfield on behalf of the Respondent
Hearing details:
2022
28 June
Microsoft Teams.
[1] Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14].
[2] Haining v Deputy President Drake (1998) 87 FCR 248, [250].
[3] Document Three – Payslip, Hearing Book 72.
[4] Robert Crofft Statement of Evidence, Hearing Book 30.
[5] Transcript PN104.
[6] Transcript PN150.
[7] Transcript, PN173.
[8] Payroll Tax Act 2009 (SA), s.70.
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