Scaturro and Secretary, Attorney General's Department
[2020] AATA 653
•10 March 2020
Scaturro and Secretary, Attorney General's Department [2020] AATA 653 (10 March 2020)
Division:GENERAL DIVISION
File Number: 2019/1558
Re:Vincenzo Scaturro
APPLICANT
AndSecretary, Attorney General's Department
RESPONDENT
DECISION
Tribunal:Brigadier AG Warner, Member
Date:10 March 2020
Place:Perth
The Tribunal affirms the decision under review.
.........................[sgd]...............................................
Brigadier AG Warner, Member
CATCHWORDS
FAIR ENTITLEMENTS GUARANTEE – whether Applicant entitled to long service leave – whether Applicant completed more than seven years continuous employment – whether Applicant entitled to redundancy pay – whether Applicant was issued a notice of termination – whether employer was a small business employer immediately before the termination of the Applicant’s employment – decision under review affirmed
LEGISLATION
Fair Entitlements Guarantee Act 2012 (Cth) – ss 3, 5, 6, 6(5), 10(1), 10(1)(b), 15(1), 35, 37, 38(1), 39(1)
Fair Work Act 2009 (Cth) – ss 23, 117(1), 119, 121, 121(b), 332
Long Service Leave Act 1958 (WA) – ss 4(1), 6, 6(3), 8, 8(3)
CASES
Gayed and Secretary, Jobs and Small Business [2019] AATA 1132
Mi and Secretary, Department of Employment [2016] AATA 419
REASONS FOR DECISION
Brigadier AG Warner, Member
10 March 2020
INTRODUCTION
This is a Fair Entitlements Guarantee matter.
The relevant legislation is contained in the Fair Entitlements Guarantee Act 2012 (Cth) (FEG Act). The objects of the FEG Act are outlined in s 3 which are:
(a)to provide for the Commonwealth to pay advances on account of unpaid employment entitlements of former employees of employers in cases where:
(i) the employers are insolvent or bankrupt, and
(ii) the end of the employment of the former employees was connected with that insolvency or bankruptcy; and
(iii) the former employees cannot get payment of the entitlements from other sources; and
(b)to allow the Commonwealth to recover the advances through the winding up or bankruptcy of the employers and from other payments the former employees receive for the entitlements.
Mr Scaturro is a former employee of DTE Fluid Systems Pty Ltd (DTE Fluid) which was placed into administration on 17 January 2018.
On 1 April 2018, Mr Scaturro completed a claim form for an advance under the FEG Act in relation to his employment by DTE Fluid (T4), stating in this claim that he commenced employment with DTE Fluid on 28 March 2011 (T4/17). The claim also stated that the last date on which Mr Scaturro worked for DTE Fluid was 23 March 2018 and that he was not given notice of termination of his employment prior to that date (T4/17-18). The claim included amounts in respect of unpaid wages, annual leave, payment in lieu of notice, redundancy pay and long service leave (T4/18).
On 23 April 2018, a delegate of the Respondent made a decision under s 15(1) of the FEG Act (Initial Decision) that Mr Scaturro was not eligible for an advance (T5/49). Paragraph 10(1)(b) of the FEG Act relevantly provides:
(1)A person is eligible for an advance if the Secretary is satisfied of all of the following:
…
(b)after the commencement of this section, an insolvency event happened to the employer; …
The delegate determined that an insolvency event had not happened to DTE Fluid as even though administrators had been appointed on 17 January 2018, a liquidator had not been appointed (T5/49).
On 22 August 2018, liquidators were appointed to DTE Fluid (T9/194-5). On the same day, Mr Scaturro applied for an internal review of the Initial Decision under s 38(1) of the FEG Act (T8). He asserted that he was now entitled to FEG assistance because liquidators had been appointed to DTE Fluid (T8/171).
On 11 December 2018, a delegate of the Respondent made a decision under s 37 of the FEG Act (Review Decision) that Mr Scaturro was eligible for an advance in respect of his entitlements to annual leave and payment in lieu of notice (T14/263), but that he was not eligible for an advance on account of redundancy pay or long service leave (T14/ 271-2).
On 14 December 2018, Mr Scaturro applied for internal review of the Review Decision under s 38(1) of the FEG Act (T17). On 21 March 2019, a delegate of the Respondent made a decision under s 39(1) of the FEG Act to affirm the Review Decision
(Internal Review Decision) (T25/430). The decision under review by the Tribunal is the Internal Review Decision.In his application to the Tribunal, Mr Scaturro claimed that the Internal Review Decision was wrong because (T1/5):
FEG saying I am not entitled to redundancy
I think this decision is extremely unfair and unjust
I was informed of my redundancy via email the same day all other employees (some 50 off) were also informed
I accepted redundancy by return email to the voluntary administrator the same day and as far as I was concerned that was my last day
The next day the voluntary administrator asked me to stay on briefly to help them complete a project
The project was very near competition [sic] and it took approx. 3 weeks at which time my employment ended as expected
The voluntary administrator made it very clear once the project was completed the company was to go into liquidation with no chance of ongoing employment
At the time I was not informed at any time by the voluntary administrator that by staying on may have affect my entitlement to redundancy
It was not until the 1st FEG decision was made that I was informed because I stayed on for the extra time and no other employees I worked for small business?
From the time all employees were advised of there [sic] last day (along with me) there was no business left be it small or otherwise!
I was under the understanding my employment ended when all other employees of the company and I were made redundant and only stayed briefly to help as asked by the voluntary administrator
The voluntary knowing affect [sic] of me staying on my entitlement to redundancy should have advised me at the time when they asked me to stay
I believe the reason they did not advise me because they knew by me staying on they would benefit by reducing debts owed by the company
This voluntary administrator in my view deceived me to there [sic] gain
Should AAT take my case on I can provide further information, emails, correspondence between myself and the voluntary administrator
I have very little money due to still not being financially stable from 2018 due to redundancy
I ask AAT to please help me.
Mr Scaturro attended the hearing on 27 November 2019, was self-represented and gave evidence on affirmation.
Mr Lex Holcombe of HWL Ebsworth Lawyers represented the Respondent.
BACKGROUND
The nature of the considerations required in this matter requires a detailed examination of the background facts. The background as laid out below is distilled from the prodigious material before the Tribunal, and particularly from the comprehensive Respondent’s Statement of Issues, Facts and Contentions dated 30 September 2019, and is not in dispute.
DTE Fluid
DTE Fluid Systems Pty Ltd (DTE Fluid) was registered on 13 February 2006. Its directors were Dino Ziccardi (who was also the company secretary) and Gino Ziccardi (T9/193-4). DTE Fluid formed part of a larger corporate structure known as the DTE Group (T7/76). Four of the companies in the group were employing entities, being; Diverse Tank Engineering Pty Ltd, DTE Electrical Pty Ltd (DTE Electrical), DTE Fluid. Those entities were associated entities within the meaning of s 50AAA of the Corporations Act 2001 (Cth). Prior to the appointment of administrators (Exhibit R1, para [14]):
(a)Diverse Tank Engineering Pty Ltd employed 38 employees;
(b)DTE Fluid employed three employees;
(c)DTE Electrical employed five employees (T7/92); and
(d)DTE Group Pty Ltd employed two employees (FST6).
Commencement of employment with DTE Fluid
The books and records of DTE Fluid record that Mr Scaturro’s employment commenced on 28 March 2011 (T10/201).
Prior to his employment with DTE Fluid, Mr Scaturro was employed by RCR Mining Pty Ltd (RCR) for a period of approximately 13 years. He resigned from his employment with RCR on 25 February 2011 (FST1) and his employment with that company ended on
25 March 2011 (FST2). He was employed by RCR on a full-time basis from
1 February 2011 until 25 March 2011 (FST4). During that period Mr Scaturro took approved personal leave on the following dates: 1-2 February 2011; 10-11 February 2011; 25 February 2011; 10 March 2011; and 18 March 2011 (FST3).
Mr Scaturro has provided the following timeline of work he says he performed for DTE Fluid prior to 28 March 2011 (T21/379):
DTE employment agreement – Signed 24th of Feb 2011
28th Feb 2011 – organizing [sic] uniforms …
28th Feb 2011 – visit to DTE vehicle supplier to organize [sic] company vehicle (1 full day activity)
8th March 2011 – meetings with DTE accounts manager (Tamara Trafford) and IT to arrange, set up email address, laptop, phone, business cards, CC, fuel cards (1 full day activity)
8th March 2011 – Travel to uniform supplier pick up uniforms (1 full day activity)
11th March 2011 – Meeting with DTE accounts manager (Tamara Trafford) to sign vehicle policy (1/2 full day activity)
16th March 2011 – Business development for DTE Group, with Mine site construction services, ATIVo [sic] Group, Bucyrus Austrial [sic] Surface Pty Ltd (Tele/ Meetings) (2/3 days contacting clients)
23rd March 2011 – Instructed by DTE to organize [sic] my various clients to attend DTE Golf Day (2/3 days contacting clients, sending invites)
23rd March – research and register DTE for Mesca industry group for Roy Hill briefing (1/2 full day activity)
23rd March – HVAC Engineering, Kador Engineering groups to get quotes for DTE Tank manufacture (2 to 3 day activity)
On 22 February 2011, Mr Dino Ziccardi of DTE emailed Mr Scaturro stating: ‘We have a supplier of uniforms and safety wear, you can select and DTE will free issue to you. Do you have a preference, ute, dual cab ute or sedan? We can offer something like a new Nissan STX dual cab Navara or a Falcon, commodore, Camry or something along those lines’ (T11/218-219).
On 24 February 2011, Mr Scaturro responded to Mr Ziccardi, advising that his current vehicle lease was up and that he had obtained a couple of quotes for Holden Captiva models. He also asked whether Mr Ziccardi would like him to make contact with DTE's uniform supplier to place an order, noting that at RCR the time taken from placement of an order to receipt of clothing could be up to eight weeks (T11/218).
Mr Ziccardi responded by email on the same day, referring to an attached ‘offer and agreement’. He also stated that (T11/218):
It seems some things never change…your [sic] still a Holden fan ha, if the commodore and Captiva are similar prices then what ever suits you. As long as it is also suitable for business use then I’m fine with the Captiva. Get a couple of quotes and I then will take over.
Clothing is not a problem, we can arrange that quite quickly.
Mr Scaturro states that he signed a contract of employment with DTE on
24 February 2011. Although there is no signed copy of that contract before the Tribunal, Mr Scaturro provided the then Department of Jobs and Small Business (the department) with a copy of an offer of employment from DTE Group dated 24 February 2011 for the position of Project Manager (T16/318). The accompanying unsigned employment contract states that the commencement date was ‘28th March 2011 (or earlier)’ (T16/319). Mr Scaturro was to be employed at the company’s head office in Henderson, Western Australia. The contract provided as follows in relation to hours of work and remuneration (T16/319):
Hours of Work
You will be required to work 8 hours a day (40 hours a week); normally between 7:30am and 5:30pm with a half hour lunch break to be taken at your discretion. At times, additional hours may be required to get the job done - these are unpaid and are compensated for in your base salary.
Responsibilities/Duties
Project Management and associated responsibilities.
…
Remuneration/Superannuation
Your gross annual salary package is $140,000.00 including company vehicle and Superannuation (9%) will be paid as the Superannuation Guarantee (Administration) Act 1992, to your nominated fund. The pay period is fortnightly and will be paid into your nominated bank account.
…
Long service leave - Long service leave is in accordance with the relevant state legislation.
On 26 February 2011, Shacks Holden provided Mr Scaturro with a quote for a Holden Captiva (A19).
On 28 February 2011, Mr Ziccardi sent Mr Scaturro an email asking him to contact Chez Cecchi of Workforce Clothing and ‘let him know what clothing you require’, as well as identifying specific items he should get (T11/220).
Mr Scaturro says that he visited DTE’s vehicle supplier on 28 February 2011. At 6:45pm on that day, Mr Andrew McLuckie of Gibbons Holden provided Mr Scaturro with pricing for two Holden Captiva model vehicles as he had requested (T21/383). There is no contemporaneous documentation which supports Mr Scaturro’s assertion that this visit required a full day of activity. The Respondent notes that Mr Scaturro had already identified the models of interest to him in his earlier correspondence with Mr Ziccardi
(R1, para [35]).
On 4 March 2011, Mr Scaturro attended Workforce Clothing to try on uniforms for DTE. There is no contemporaneous documentation indicating the duration of this activity, although a list of the clothing was provided to DTE on 8 March 2011 (T11/220). Mr Ziccardi responded on the same day, asking Workforce Clothing to proceed with the order (T11/220).
At 9:51am on 8 March 2011, Mr Scaturro sent an email from the email address [email protected] to Ms Tamara Trafford of DTE Group, requesting his DTE mobile phone number and email address and that he be notified when his business cards were ready for collection (T11/228). At 11:55am, Ms Sylvia Silas of DTE Group provided to Mr Scaturro the DTE Group contact information which would appear on his business cards but did not advise him when they would be ready for collection.
At 2:59pm on 8 March 2011, Mr Scaturro emailed Ms Silas and Ms Trafford, to thank them for providing his new contact details at DTE Group and to state that he was looking forward to meeting them both and ‘being part of the DTE team’ (T11/227). This message is inconsistent with Mr Scaturro’s assertion that he attended a full day of meetings at DTE on 8 March 2011, including meetings with Ms Trafford.
At 5:33pm on 11 March 2011, Ms Trafford sent an email to Mr Scaturro stating (T11/222):
Good afternoon Vince
Could you kindly read, sign and return the attached Vehicle Policy?
Mr Scaturro’s evidence is that he signed the DTE Vehicle Policy on 15 March 2011. There are no contemporaneous documents before the Tribunal which indicate when the company car was provided to Mr Scaturro. Mr Scaturro has supplied a Car History Report and Personal Property Security Register Certificate which states that the car in question was first sold on 11 March 2011 — it does not refer to the car being provided to the Applicant on that day (see Exhibit R1, para [39]). While Mr Scaturro has previously asserted that he met with Ms Trafford to sign the vehicle policy and that this activity took half the day, that assertion is not borne out by the nature or timing of the email sent by Ms Trafford, which does not refer to a meeting with her or anyone else at DTE. It is also inconsistent with Mr Scaturro’s evidence that he signed the policy later, on
15 March 2011.
At 10:30am on 16 March 2011, Mr Scaturro sent an email to undisclosed recipients, advising them of the details of his position with DTE Group. There is no suggestion in the contemporaneous documents that Mr Scaturro sent the email at the request of DTE. The email states (T21/400):
Friends, Professional Colleagues / Contacts,
As they say all good things come to an end sooner or later! After 13 years employment with RCR Tomlinson it’s time to move on
I would like to take this opportunity to wish you all the best going forward both in your work and family lives. May you and your loved ones always keep safe, be happy and prosper.
My new contact details below
DTE design, manufacture, install and maintain fluid storage assets / facilities
Specialists in Hydrocarbon / Fluid storage plant / facilities
Mobile: 0429 546 361
Email: [email protected]
Address: 27 Alacrity Place, Henderson, WA 6166
Phone: 08-9410 8188
Fax: 08-9410 8187
Website: dtegroup.com.au
DTE Group: Perth Office
DID: (08) 9410 8188
Website: align="left">I look forward to keeping up the contact in the future (I commence in my new role with DTE on the 28th of March 2011)
Vince Scaturro
Mr Scaturro received three responses to that email, as follows (T21/399):
·Perry Jasper of Bucyrus Australia Surface Pty Ltd emailed Mr Scaturro at 10:33am on 16 March 2011, stating: ‘Thanks Vince, look forward to catching up in the future.’ Mr Scaturro replied at 10:39am, saying, ‘Cheers Perry, Also look forward to keeping up the contact in the future. Rgds Vince’ (ST1/540)
·Tony Borger of ATIVO Maintenance & Project Services emailed Mr Scaturro at 10:38am on 16 March 2011, stating: ‘Thanx Vince and the very best of luck. When you settle, please contact Michael Dennison, Site Superintendent at our KNR operation…as he may have some work for your organisation’.
·Joseph Caruso of Mine Site Construction Services emailed Mr Scaturro at 4:01pm on 16 March 2011, stating: ‘Good afternoon and a pleasure to speak. As discussed after you settle into your new position, please telephone and we can meet. Matthew Caruso, is our Mechanical Director, and I will introduce you to Matthew. In the meantime every added success with DTE.’ Mr Scaturro replied at 4:10pm: ‘Joe, thank you kindly and look forward to meeting’.
Mr Scaturro asserts that on 16 March 2011, he spent ‘2/3 days contacting clients’ in ‘business development for DTE Group, with Mine site construction services, ATIVO Group, Bucyrus Austrial [sic] Surface Pty Ltd (Tele/ Meetings)’ (T21/379). The only contemporaneous documents of relevance to that assertion are the emails detailed in paras [30]-[31] above.
Mr Scaturro asserts that he spent two to three days contacting ‘HVAC Engineering, Kador Engineering groups to get quotes for DTE’. At 11:46am on 17 March 2011, Mr Scaturro emailed a request for a quote to Wayne Orley and Gordon Waddell of HVAC Group. The two sentence email attached a drawing and asked that the quote be provided by
18 March 2011 (T21/394). This email is the only contemporaneous record of any requests for quotes issued by Mr Scaturro during this period.
At 1:20pm on 17 March 2011, Steve Fabri of HMG Hardchrome Pty Ltd emailed Mr Scaturro at [email protected] the contact details for HVAC Engineering and Kador Engineering, stating: ‘Vince, Good luck with these contacts they should be able to help you out’ (ST1/542). There are no other references to Kador Engineering in the material supplied by Mr Scaturro.
On 18 March 2011, Mr Scaturro was on approved leave from RCR (see paragraph [16] above). On that day, he spoke with Peter Hill, the Development Manager of MESCA WA. Shortly thereafter, at 4:34pm, Mr Hill emailed Mr Scaturro at [email protected], stating: ‘It was good to speak with you a few minutes ago. Herewith the flyer and rego. Look forward to catching up. Can you please check with Leon next week to see if he has received his invite’ (T21/402).
On 23 March 2011 at 12:27pm, Gordon Waddell of HVAC Group emailed a quote to
Mr Scaturro at [email protected], in response to his request of 17 March 2011 (T21/394).
At 12:51pm on the same day, Ms Silas copied Mr Scaturro an email confirming his registration (and that of Paul Kelly of DTE Group) for the MESCA Briefing Roy Hill 1 Project on 29 March 2011 (T21/395).
At 1:30pm that day, Mr Ziccardi emailed an invitation to the DTE Group WA’s 2011 Corporate Golf Day to Mr Scaturro at [email protected], stating: ‘As discussed see attached invitation, try to organize up to 5 guests?’ (T21/397). Mr Scaturro asserts that he spent 2/3 days contacting clients and sending invites. There is no contemporaneous documentation relating to any efforts by Mr Scaturro to organise guests for this event, which was to be held on 1 April 2011 (RSVPs had been requested by 10 March 2011) (T21/398).
At 5:39pm, Mr Scaturro forwarded HVAC Group’s quote to Mr Kelly and Mr Ziccardi from the email address [email protected], stating: ‘HVAC price came in slightly less. RCR Wacol informed me they received DTE order today so I guess on this occasion HVAC have missed the boat due to there [sic] time taken to quote. I spoke to Gordon Waddell today and he apoligised [sic] it took this long for his quote to come through. Anyway catch up with you both soon’ (T21/393, ST1/547). At 7:38pm, Mr Kelly responded to Mr Scaturro, thanking him and stating that it was good to know for future reference (T21/393).
At 10:16pm, Mr Scaturro forwarded Ms Silas' email (see para [37] above) to Mr Hill (from the address [email protected]) and asked him if a 'special get together' had been arranged to take place after the event (ST1, 550).
On 25 March 2011, Mr Hill emailed Mr Scaturro, thanking him for registering the new company for the event (ST1/550).
On Sunday 27 March 2011, Mr Scaturro advised Mr Hill by email that he was 'now online' with a DTE mobile telephone and email address (ST1/550).
A PAYG Payment Summary issued to Mr Scaturro by Diverse Tank Engineering Pty Ltd for the financial year ending 30 June 2011 identified the period of payment as
28 March 2011 to 30 June 2011 (T4/25). Subsequent PAYG Payment Summaries indicate that Mr Scaturro was employed by DTE Fluid from 10 November 2011 (T4/27). On
6 April 2018, Mr Ziccardi confirmed that Mr Scaturro’s salary had come from DTE Fluid ‘from the time of his employment’ (T12/249).
On 28 September 2018, Mr Scaturro asserted in an email to the department that his period of continuous employment with DTE commenced on 24 February 2011 with the signing of his employment agreement and ended on 23 March 2018 (T11/207).
In an email sent to the department on 13 December 2018, Mr Scaturro asserted that he commenced performing unpaid work for DTE Fluid from 3 March 2011 and ‘amounted to significant number of hours (30-40 hours)’ (T16/297). He stated that his employment commenced on 3 March 2011 and ended on 23 March 2018.
The liquidators appointed to DTE Fluid formed the view that, based on their investigations and the books and records of the company, there was no evidence that Mr Scaturro commenced employment with DTE Fluid on a date which would provide him with an entitlement to long service leave (T12/233, T19). In response to an email from Mr Scaturro querying this finding, Mr Rocke stated in an email dated 6 December 2018 that ‘there is no grey area’ (T12/232).
Termination of employment
On 17 January 2018, Administrators were appointed to DTE Fluid (T4/195). On the same day, the Administrators issued a circular to the employees of DTE Fluid, advising them: of their appointment; that they would continue to trade the company under their control while they reviewed its financial position; and that the employees continued to be employed by DTE Fluid. They advised that they would continue to pay the employees’ wages and entitlements, as per their employment contracts, incurred after the administrator’s appointment and while the employees continued to work for the company (ST2/554).
On 28 February 2018, Mr Cliff Rocke, one of the Administrators, sent an email to Mr Scaturro and Mr Luca Gizzarone of DTE Electrical, advising them that: ‘I expect I will terminate all Fluid and Electrical staff tomorrow except for; Josh - for Acure; Kevin – for Acure’ (ST1/516). At 9:06pm on that day, Mr Scaturro replied to Mr Rocke stating that he would be at a funeral the next day but would ‘be at work in the morning and again after the funeral’ (ST4/566).
At 4:04pm on 1 March 2018, Mr Scaturro’s daughter presented at the Emergency Department of the Sir Charles Gairdner Hospital (ST1/526).
Mr Scaturro set up an automatic reply to emails to his DTE Fluid email address which stated: ‘I am no longer employed by DTE Group’ and provided his personal contact details (ST5/571). He asserts that he set up this automatic reply prior to leaving DTE premises on
1 March 2018.
At 8:24pm on 1 March 2018, Mr James Watson of Cor Cordis sent an email to
Mr Scaturro and Mr Gizzarone, stating (ST2/556):
Given the current situation we are unable to continue to trade and employ with exception to Kevin Clary-Angeles and Joshua Pettigrove. Are you kindly able to circulate the attached notice of termination to the other employees.
Vince we will contact you regarding George McQuade - please proceed to notify him of the termination - we may seek to reengage on separate terms either as a contractor or part-time to complete the remaining jobs. Vince and Luca you are both retained with employment.
There were two attachments to that email, which were each addressed ‘To the employee as addressed’. One of the letters relates to DTE Electrical and the other to DTE Fluid. Each letter is drafted in similar terms and includes the following text:
Unfortunately, the Company’s financial circumstances are such that the Company is unable to continue to pay all its employees.
Because of these circumstances, on behalf of the Company, we regret to advise that your services are no longer required and confirm that your employment was terminated with immediate effect on the close of business on 1 March 2018. The reason for your termination is due to redundancy (ST2/557-560).
Mr Scaturro provided the department and the Tribunal with a copy of the letter relating to DTE Fluid but not Mr Watson’s covering email (Exhibit R1, para [65]).
An automatic reply was sent from Mr Scaturro’s DTE Fluid email account to Mr Watson's email at 8:24pm on 1 March 2018 (ST5/571). Mr Watson subsequently forwarded his email to Mr Scaturro’s personal email address, stating (ST6/573):
Please see below.
We would like to continue with our existing engagement with you to assist on our current projects if you are available to do.
At 6:22am on 2 March 2018, Mr Scaturro responded to Mr Watson. There are two different versions of this response before the Tribunal. The version filed with the Tribunal by Mr Scaturro states (ST1/528):
My 18yo daughter was rushed to QEII emergency last night
They found she had a perforated ulcer in her stomach which needed 4 hrs emergency surgery (my wife and I got hm [sic] 3am this morning).
The version of the response provided to the department by Cor Cordis states
(ST6/572-573):
I am available to continue with my employment and will let George know this morning
I will need to have 1 day carers leave today
My 18yo daughter was rushed to QEII emergency last night
They found she had a perforated ulcer in her stomach which needed 4 hrs emergency surgery (my wife and I got hm [sic] 3am this morning)
Im [sic] will go past work this morning and go to the hospital following
I will be in at work Tuesday morning as normal.
There are also two different versions of Mr Watson's subsequent reply to Mr Scaturro (ST1/528, ST6/572).
On 13 March 2018, Mr Scaturro sent an email to the Administrators, seeking confirmation of certain assumptions about his employment. He stated (T4/35):
From my PAYG summaries is [sic] looks like payments made to me from commencement of my 7 years period employment as follows
Diverse Tank Engineering Pty Ltd ABN 93 095 344 031 – 28.03.2011 to 09.11.2011
DTE Fluid Systems Pty Ltd ABN 29 118 313 787 – 09.11.2011 to end of employment?
Looks like I was employed by DTE for a brief period and DTE Fluids for the remainder of the total 7 years period employed
My assumption is once Cor Cordis place both above companies into liquidation I will receive letters confirming entitlements and the process to get the entitlements.
Please let me know if my assumptions are correct?
On 21 March 2018, Mr Scaturro sent a further email to the Administrators, stating (T4/34):
My period of employment as per attached PAYG summaries and below
·Diverse Tank Engineering Pty Ltd ABN 93 095 344 031 – 28.03.2011 to 09.11.2011
·DTE Fluid Systems Pty Ltd ABN 29 118 313 787 – 09.11.2011 to 23.03.2018
Can you let me know when I will receive the following required asap
a. Letter of termination/redundancy
b. Final pay 8th to 23rd March…
Mr Watson responded by return email that day, annotating Mr Scaturro’s email in red text to indicate that he would receive a letter of termination/redundancy ‘on or after your final day, being 23 March 2018’ (T4/34).
At 11:49am on 23 March 2018, Mr Watson emailed Mr Scaturro and Mr Gizzarone a series of requests which was introduced with the text: ‘Today being your last day can you both please provide the following …’ (T3/10).
As at 23 March 2018, Mr Scaturro was the sole remaining employee of DTE Fluid (T10/201). The insolvency practitioner advised that all employees of ACN 095 344 031 Pty Ltd (formerly Diverse Tank Engineering Pty Ltd) were notified of the termination of their employment by the Receivers and Managers on 28 February 2018 and ceased employment on that day or soon after. That entity (which had employed 38 of the DTE Group’s workforce of 48) did not employ any employees on 21 or 23 March 2018 (FST6).
On 26 March 2018, Mr Scaturro emailed the Administrators, requesting that he be provided with a ‘redundancy termination letter’ and stating that his last day was
23 March 2018 (T3/9). Mr Scaturro’s FEG claim, submitted on 1 April 2018, stated that the last date he worked for DTE Fluid was 23 March 2018 and that he was not given notice of termination of his employment prior to that date (T4/17-18).
On 17 April 2018, Mr Rocke wrote to Mr Scaturro stating: ‘As you are aware, the Company has ceased trading, and your employment was terminated on 23 March 2018. The reason for your termination was due to redundancy’ (T4/41).
Previous decisions
Initial Decision
On 23 April 2018, a delegate of the Respondent made the Initial Decision that Mr Scaturro was not eligible for an advance. Section 10(1)(b) of the FEG Act provides that for a person to be eligible for an advance, an insolvency event must have happened to the employer. The delegate found that an insolvency event had not happened to DTE Fluid, because although administrators had been appointed on 17 January 2018, a liquidator had not been appointed (T5).
Review Decision
On 22 August 2018, liquidators were appointed to DTE Fluid, and Mr Scaturro sought an internal review of the Initial Decision under subs 38(1) of the FEG Act, on the basis that he was now entitled to FEG assistance because liquidators had been appointed to DTE Fluid.
On 11 December 2018, a delegate of the Respondent determined that Mr Scaturro was eligible for an advance in respect of his entitlements to annual leave and payment in lieu of notice, but that he was not eligible for an advance on account of redundancy pay or long service leave.
Section 119 of the FW Act provides an entitlement to redundancy pay where a person's employment has been terminated by the employer due to the insolvency of the company. Subsection 121(1)(b) of the FW Act provides that s 119 does not apply to an employee's employment if, immediately before the time of the termination, or at the time when the person was given notice of the termination as described in subs 117(1) (whichever happened first), the employer was a 'small business employer'. Section 23 of the FW Act provides that a national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
On the basis that DTE Fluid employed fewer than 15 employees on 23 March 2018, and that Mr Scaturro’s employment with DTE Fluid ended on 23 March 2018 without him being given prior notice of termination (T14/265), the delegate found that Mr Scaturro was not entitled to an advance in respect of redundancy pay (T14/271).
Pursuant to subs 8(3) of the LSL Act, employees are entitled to pro rata payment for long service leave on termination of their employment, if they have completed at least 7 years continuous employment. The delegate found that Mr Scaturro was employed by DTE between 28 March 2011 and 23 March 2018 (T14/265), and consequently determined that Mr Scaturro had not completed at least 7 years of continuous employment and was not eligible for an advance in respect of long service leave (T14/272).
Internal Review Decision (the decision under review in these proceedings)
On 14 December 2018, Mr Scaturro applied for internal review of the Review Decision under subs 38(1) of the FEG Act (T17). He asserted that he was entitled to an advance in respect of redundancy pay because he was asked by the Administrators to assist with the completion of a particular project, and there was a period of only three to four weeks between the other employees being made redundant and the termination of his employment (T17/345). Mr Scaturro also claimed entitlement to an advance in respect of long service leave because his employment with DTE Fluid commenced on 3 March 2011 when he commenced unpaid work (T17/345).
Mr Scaturro’s email to the department on 17 December 2018 includes the following: ‘I believe I am entitled to redundancy because at the time when I was given notice of termination the employer was a not a small business employer’ and ‘I was informed of termination on the 28th of Feb 2018 along with some 30 other DTE employees from associated entities’ (T18/349). The Respondent notes that Mr Scaturro did not provide Mr Watson’s covering email dated 1 March 2018 which states in part: ‘Vince and Luca you are both retained with employment’ (Exhibit R1, paras [65] and [83]).
In the subsequent Internal Review Decision dated 21 March 2019, the delegate determined that Mr Scaturro’s employment with DTE Fluid was terminated without notice on 23 March 2018 and that the company was a small business employer at that time (T25/432). The delegate also determined that Mr Scaturro was employed by DTE Fluid from 28 March 2011 to 23 March 2018 and had not completed at least seven years of continuous employment (T25/431). The delegate found that any tasks undertaken by Mr Scaturro prior to that period were performed in preparation for starting with DTE Fluid and did not constitute the commencement of an employment relationship (T25/431).
The delegate determined that Mr Scaturro was not eligible for an advance in respect of redundancy pay or long service leave, and accordingly on 21 March 2018 affirmed the Review Decision (T25/430).
ISSUES
The Tribunal must decide whether the Internal Review Decision is the correct or preferable decision, and in particular, whether Mr Scaturro is not entitled to an advance with respect to redundancy pay or long service leave.
LEGISLATIVE FRAMEWORK
The relevant legislation is laid out in Exhibit R1, paras [11]-[23], and is repeated below.
Fair Entitlements Guarantee Act 2012 (Cth)
There are two main objects of the FEG Act.
FEG Act, which are set out in s 3 of that Act. The first is to provide for the Commonwealth to pay advances on account of unpaid employment entitlements of former employees of employers in cases where:
(i) the employers are insolvent or bankrupt; and
(ii) the end of the employment of the former employees was connected with that insolvency or bankruptcy; and
(iii) the former employees cannot get payment of the entitlements from other sources.
The second main object of the Act is to allow the Commonwealth to recover the advances through the winding up or bankruptcy of the employers and from other payments the former employees may receive for the entitlements.
Section 6 of the FEG Act relevantly provides:
Kinds of employment entitlements
(1) This section defines the various kinds of employment entitlements of a person whose employment by an employer has ended, by reference to the person’s entitlements under the governing instrument for the employment.
…
Long service leave entitlement
(3) The person’s long service leave entitlement is the amount the person is entitled to under the governing instrument from the employer:
(a) for long service leave that the person had accrued at the end of the person’s employment and had not taken by then; or
(b) on account of long service leave that, had the person’s employment continued until the person qualified for long service leave, would have been attributable to the period before the actual end of the person’s employment.
(c)…
Redundancy pay entitlement
(5) The person’s redundancy pay entitlement is the amount of redundancy pay the person is entitled to under the governing instrument from the employer for termination of the employment.
…
The term 'governing instrument' is defined in s 5 of the FEG Act as follows:
governing instrument for employment means any of the following that governs the employment:
(a)a written law of the Commonwealth, a State or a Territory;
(b)an award, determination or order that is made or recorded in writing;
(c)a written instrument;
(d)an agreement (whether a contract or not).
Subsection 10(1) of the FEG Act sets out the general conditions of eligibility for an advance. It provides:
1A person is eligible for an advance if the Secretary is satisfied of all of the following:
(a)the person’s employment by a particular employer has ended;
(b)after the commencement of this section, an insolvency event happened to the employer;
(c)the end of the employment:
(i) was due to the insolvency of the employer; or
(ii) occurred less than 6 months before the appointment of an insolvency practitioner for the employer; or
(iii) occurred on or after the appointment of an insolvency practitioner for the employer;
(d)the person is (or would, apart from the discharge of the bankruptcy of the employer, be) owed one or more debts wholly or partly attributable to all or part of one or more employment entitlements;
(e)the person has taken steps, so far as reasonable, to prove those debts in the winding up or bankruptcy of the employer;
(f)if the person was owed any of those debts before the insolvency event happened, the person took reasonable steps before that event to be paid those debts;
(g)when the employment ended, the person was an Australian citizen or, under the Migration Act 1958, the holder of a permanent visa or a special category visa;
(h)an effective claim (see section 14) that the person is eligible for the advance has been made to the Secretary by or on behalf of the person.
Section 35 of the FEG Act provides that the Secretary (and by extension, the Tribunal) is entitled to presume that certain information provided by an insolvency practitioner is accurate:
Presuming accuracy of certain information
For the purposes of deciding:
(a) whether a person is eligible for an advance for the employment of the person by an employer; and
(b)the amount of such an advance;
the Secretary may presume that information relating to the person that is given to the Secretary by an insolvency practitioner for the employer is accurate.
The definition of the term 'insolvency practitioner' for an employer includes a liquidator of the employer or an administrator of the employer appointed under the Corporations Act 2001: see FEG Act s 5.
The Fair Work Act 2009 (Cth)
There is no dispute between the parties that the governing instrument for the purposes of assessing the Applicant's redundancy pay entitlement under subs 6(5) of the FEG Act is the Fair Work Act 2009 (Cth) (FW Act). Section 119 of the FW Act establishes an entitlement to redundancy pay in certain circumstances, and sets out how that entitlement is to be calculated. Subsection (1) provides:
Redundancy pay
Entitlement to redundancy pay
(1) An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:
(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.
Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.
Section 121 of the FW Act provides that s 119 does not apply in particular circumstances. It relevantly states:
Exclusions from obligation to pay redundancy pay
(1)Section 119 does not apply to the termination of an employee’s employment if, immediately before the time of the termination, or at the time when the person was given notice of the termination as described in subsection 117(1) (whichever happened first):
(a) the employee’s period of continuous service with the employer is less than 12 months; or
(b) the employer is a small business employer.
…
Subsection 121(1) of the FW Act refers to subs 117(1), which deals with the requirement to provide written notice of the day of termination. It states:
Requirement for notice of termination or payment in lieu
Notice specifying day of termination
(1) An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).
Note 1: Section 123 describes situations in which this section does not apply.
Note 2: Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by:
(a)delivering it personally; or
(b)leaving it at the employee’s last known address; or
(c)sending it by pre‑paid post to the employee’s last known address.
Section 23 of the FW Act defines the expression 'small business employer' as follows:
Meaning of small business employer
(1)A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2)For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.
(3)For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4)To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a)the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.
The Long Service Leave Act 1958 (WA)
There is no dispute between the parties that the governing instrument for the purposes of assessing the Applicant's long service leave entitlement under subs 6(3) of the FEG Act is the Long Service Leave Act 1958 (WA) (LSL Act).
Section 8 of the LSL Act relevantly provides:
Long service leave
(1) An employee is entitled in accordance with, and subject to, the provisions of this Act, to long service leave on ordinary pay in respect of continuous employment with one and the same employer, or with a person who, being a transmittee, is deemed pursuant to section 6(4) to be one and the same employer.
(2) An employee who has completed at least 10 years of such continuous employment, as is referred to in subsection (1), is entitled to an amount of long service leave as follows —
(a)in respect of 10 years so completed, 8 2/3 weeks;
(b)in respect of each 5 years’ continuous employment so completed after such 10 years, 4 1/3 weeks; and
(c)on the termination of the employee’s employment —
(i) by his death;
(ii) in any circumstances otherwise than by his employer for serious misconduct,
in respect of the number of years of such continuous employment completed since the employee last became entitled under this Act to an amount of long service leave, a proportionate amount on the basis of 8 2/3 weeks for 10 years of such continuous employment.
(3)Where an employee has completed at least 7 years of such continuous employment since the commencement thereof, but less than 10 years, and the employment is terminated —
(a) by his death; or
(b) for any reason other than serious misconduct,
the amount of leave to which the employee is entitled shall be a proportionate amount on the basis of 8 2/3 weeks for 10 years of such continuous employment.
…
The term ‘employee’ is defined in subs 4(1) of the LSL Act as follows:
employee means, subject to subsection (3) —
(a)any person employed by an employer to do work for hire or reward including an apprentice;
(b)any person whose usual status is that of an employee;
(c)any person employed as a canvasser whose services are remunerated wholly or partly by commission or percentage reward; or
(d)any person who is the lessee of any tools or other implements of production or of any vehicle used in the delivery of goods or who is the owner, whether wholly or partly, of any vehicle used in the transport of goods or passengers if the person is in all other respects an employee;
Section 6 of the LSL Act relevantly states:
What constitutes continuous employment
(1) For the purposes of this Act, employment of an employee…shall be deemed to include —
(a)any period of absence from duty for —
(i) annual leave;
(ii) long service leave; or
(iii) public holidays or half-holidays, or, where applicable to the employment, bank holidays;
(b)any period of absence from duty necessitated by sickness of or injury to the employee but only to the extent of 15 working days in any year of his employment;
…
EVIDENCE
The Tribunal had before it the following evidence:
·The ‘T Documents’ (T1-T28, pp1-456);
·The ‘Supplementary T Documents’ (ST1-ST13, pp 457-638);
·‘Further Supplementary T Documents’ (FST1-FST14, pp 639-980);
·Applicant submissions dated 7 November 2019 (Exhibit A1);
·Applicant’s Response to Respondent’s Statement of Issues, dated 4 June 2019 (Exhibit A2);
·Applicant’s Index to Document Submission and Questions, dated 4 November 2019 (Exhibit A3);
·Updated summary letter stating when Applicant first received Notice of Termination, dated 16 September 2019 (Exhibit A4);
·Summary letter stating when Applicant first received Notice of Termination, dated 30 July 2019 (Exhibit A5);
·Summary letter - Long Service Leave Entitlement, commencement of Work and Remuneration dated 6 June 2019 (Exhibit A6);
·Summary letter – redundancy entitlement filed 20 May 2019 (Exhibit A7);
·Applicant email dated 5 April 2019 attaching decision letter, dated 21 March 2019 and Annexures A and B (Exhibit A8);
·Applicant email to James Watson, dated1 March 2018 (Exhibit A9);
·Emails between Applicant and Cliff Rocke dated 28 February 2018 and 1 March 2018 (Exhibit A10);
·Emails between Applicant and Cliff Rocke regarding DTE T55 Wrap Tanks, dated 9-22 February 2018 (Exhibit A11);
·James Watson emails to Applicant, dated 1 March 2018 (Exhibit A12);
·
Letter from Cliff Rocke to ‘employee as addressed’, dated 1 March 2018
(Exhibit A13);
·Emails between Paul Kelly and Applicant regarding Steel Processing Project dated 17 March 2011 to 10 October 2019 (Exhibit A14);
·Gordon Waddell HVAC quote dated 23 March 2011 (Exhibit A15);
·Emails between Tamara Trafford and Applicant regarding car policy dated 15 March 2011 (Exhibit A16);
·
Captive information and pricing (Gibbons Holden) dated 28 February 2011
(Exhibit A17);
·Car History Report & PPSR Certificate dated18 September 2019 (Exhibit A18);
·Captiva 5 - Product Details and quotes (Exhibit A19);
·Custom Fleet email dated 5 October 2011 (Exhibit A20);
·Windows SBS Administrators email dated 9 March 2011 (Exhibit A21);
·Dino Ziccardi (DTE Accounts) email dated 11 July 2011 (Exhibit A 22);
·Tim Herron email dated 21 October 2019 (Exhibit A23);
·Applicant email to Tribunal dated 31 July 219 (Exhibit A24);
·
Emails between Applicant and James Watson dated 1-3 March 2018
(Exhibit A25);
·Medical reports – Applicant’s daughter filed 20 May 2019 (Exhibit A26);
·Emails related to Applicant’s FEG claim filed 16 September 2019 (Exhibit A27);
·Emails regarding BP Newman Capricorn Roadhouse DTE Diesel Tank Installation Program 12 January 2018 – 28 February 2018 (Exhibit A28);
·Emails regarding BP Newman Capricorn Roadhouse DTE Diesel Tank Installation Program 12 January 2018 – 5 February 2018 (Exhibit A29);
·
Emails regarding MESCA Briefing: Roy Hill 1 Project and MESCA flyer
23-27 March 2011 (Exhibit A30);
·Emails between Andrew Kelly and Applicant regarding FEG claim 27 August 2018 – 27 September 2018 (Exhibit A31);
·Emails regarding DTE securing stock/depreciation schedules dated 2 March 2018 (Exhibit A32);
·Steve Fabri email dated 17 March 2011 (Exhibit A33);
·Emails regarding steel fabrication dated 16 March 2011 (Exhibit A34);
·Flight confirmation and itinerary dated 12 February 2018 (Exhibit A35);
·Applicant email to Alice Duggan regarding FEG claim dated 19 December 2018 (Exhibit A36);
·Emails regarding work clothing 28 February 2011 – 8 March 2011 (Exhibit A37);
·Corporate golf invitation dated 23 March 2011 (Exhibit A38);
·Extract from Fair Work Act 2009 (Cth) filed 26 October 2019 (Exhibit A39);
·Article ‘Consenting under Stress’ filed 26 October 2019 (Exhibit A40);
·
Respondent’s Statement of Issues, Facts and Contentions dated
30 September 2019 (Exhibit R1);
·
Respondent’s Statement of Issues dated 4 June 2019, including Attachments
A to C (Exhibit R2); and
·The oral evidence of the Applicant.
CONSIDERATION
Entitlement to long service leave
Mr Scaturro lodged his FEG claim on 1 April 2018, in which he stated that he started work with his former employer on 28 March 2011 and that the last date he worked with that employer was 23 March 2018 (T4/17, T12/248).
Mr Scaturro’s employment contract with DTE Fluid provides a commencement date of ‘28th March 2011 (or earlier)’ (T16/319). In an email dated 27 September 2018, the insolvency practitioner detailed Mr Scaturro’s start date as 28 March 2011 and his termination date as 23 March 2018 (T16/325). There is no dispute that Mr Scaturro’s employment with DTE Fluid ended on 23 March 2018.
Section 35 of the FEG Act provides a statutory presumption that information from an insolvency practitioner is accurate, and states:
For the purpose of deciding:
(a)whether a person is eligible for an advance for the employment of the person by an employer; and
(b)the amount of such an advance
the Secretary may presume the information relating to the person that is given to the Secretary by an insolvency practitioner for the employer is accurate.
The Respondent contends that Mr Scaturro was not employed by DTE Fluid within the meaning of subs 4(1) of the LSL Act until 28 March 2011 (Exhibit R1, para [93]).
Mr Scaturro contends that he was provided a company car on 11 March 2011 and that this constituted remuneration by DTE Fluid. He relies on the definition of ‘earnings’ in
s 332 of the FW Act, which includes ‘the agreed money value of non-monetary benefits‘. He also contends that he commenced working for DTE Fluid as early as 17 March 2011, performing business development activities. Accordingly, Mr Scaturro claims that he completed more than seven years continuous employment with DTE Fluid and is entitled to pro rata payment of long service leave under subs 8(3) of the LSL Act. He also contends that the work he performed for DTE Fluid prior to 28 March 2011 amounted to ‘additional hours’ which were to be unpaid but compensated for in his base salary.
In considering whether Mr Scaturro is entitled to long service leave, the Tribunal must determine whether he was employed by DTE Fluid prior to 28 March 2011, being the commencement date recorded in the company's books and records and the date advised by the insolvency practitioner.
The evidence is that Mr Scaturro was a full-time employee of RCR Mining Pty Ltd prior to his employment with DTE Fluid, and that his last day of employment was 25 March 2011 (FST2/645, FST3/648, FST4/652). There is also evidence that Mr Scaturro took personal leave in the closing period of this employment as follows: 1 February 2011 to 2 February 2011 inclusive; 10 February 2011 to 11 February 2011 inclusive; 25 February 2011; 10 March 2011; and 18 March 2011 (FST3/648).
Before the Tribunal, Mr Scaturro agreed that he had been paid by RCR Mining up until 25 March 2011, and that he had been paid for long service leave entitlements accrued to that completion date (Transcript p25 at 20, p28 at [15]-[25], p30 at [10]-[15]).
Mr Scaturro has provided a list of activities (FST12/771) in support of his contention that he worked for DTE Fluid prior to 28 March 2011.
In considering the activities listed for 28 February 2011, 8 March 2011, 9 March 2011, 11 March 2011, 15 March 2011, and 16 March 2011, the Tribunal notes that Mr Scaturro was employed full-time with RCR Mining on those dates and those dates are not included in the periods of personal leave listed above. While Mr Scaturro’s contract mentioned the possibility of starting before 28 March 2011, there is no evidence before the Tribunal that he and DTE Fluid initiated their contractual obligations prior to 28 March 2011. There is no evidence that Mr Scaturro was remunerated for these activities or requested payment for them. Relevantly, Mr Scaturro told the Tribunal: ‘I was starting with a new company. I wasn’t going to be that forward’ (Transcript p25 at [35]).
In considering the activities Mr Scaturro asserts to have been employed prior to
28 March 2011, the Respondent submits (Exhibit R1, para [97]):The contract provided that the Applicant would be employed at the company's head office. There is no evidence that the Applicant worked at the company's head office prior to 28 March 2011. The contract also states that his responsibilities/duties were 'Project Management and associated responsibilities', that he was required to work 8 hours a day (40 hours a week), usually between 7:30am and 5:30pm and that 'at times, additional hours may be required to get the job done - these are unpaid and are compensated for in your base salary'
(Exhibit R1, para [96]).[t]hat when read objectively in its full context, this contractual obligation to complete additional unpaid hours was a requirement to work more than 40 hours per week from time to time, which formed part of the duties the Applicant was required to complete in exchange for his salary, paid fortnightly. This was not an obligation to complete unpaid work prior to the commencement of paid employment.
Having regard to the evidence, the Tribunal agrees.
Mr Scaturro also relies on email correspondence relating to three activities he performed between 17 March 2011 and 23 March 2011 related to his forthcoming employment with DTE Fluid (FST12/771):
·2-3 day activity requesting quotes to HVAC and Kador Engineering, and forwarding HVAC's quote to DTE;
·Obtaining a flyer for an event being organised by MESCA (an industry group of which Mr Scaturro was a member), from Mr Hill, a MESCA representative already known to him. The event in question was to take place on 29 March 2011 and registrations closed on 23 March 2011; and
·Organising clients to attend a golf day planned for the week commencing 28 March 2011.
In assessing the claimed 2-3 quotes activity, the Respondent contends that
(Exhibit R1, para [99]):
[t]he Applicant's assertions about the time he spent on those tasks are implausible. The Applicant stated that he spent two to three days contacting 'HVAC Engineering, Kador Engineering groups to get quotes for DTE'. Contact details for both of those organisations were provided to the Applicant on 17 March 2011 by Mr Fabri. The request sent to HVAC consisted of a two line email attaching a drawing. There is no basis for a finding by the Tribunal that the Applicant spent two to three days on this activity, particularly as he continued to be employed full-time by RCR. Having regard to the nature of these three tasks and the contemporaneous documentation, the Tribunal cannot be satisfied that the Applicant was engaged in full-time work of 8 hours per day for DTE, in the role of Project Manager, on a continuous basis from 17 March 2011.
Having regard to the evidence, the Tribunal agrees.
As the latter two activities relied on by Mr Scaturro relate to events due to occur in the week commencing 28 March 2011, it is reasonable to expect that some planning or engagement by Mr Scaturro would be needed to facilitate his participation in the events. There is no evidence that Mr Scaturro received any payment for these two activities, and with respect to the golf day, the Tribunal notes that there is no contemporaneous evidence that Mr Scaturro attempted to or was successful in organising clients to participate. The Tribunal concludes that these activities were minor, preliminary administrative tasks undertaken in anticipation of the commencement of employment with DTE Fluid and that they do not themselves constitute commencement of employment.
Mr Scaturro’s contract with DTE Fluid provided that his gross annual salary package was $140,000 including a company vehicle and superannuation (9%) with a fortnightly pay period. Mr Scaturro asserts that he was provided with a company car on 11 March 2011, although there is no contemporaneous documentation which supports that assertion. Nevertheless, the Tribunal accepts Mr Scaturro’s claim as it does not see the date of possession of a company car as determinative to the question of whether Mr Scaturro was employed by DTE at that date. This is because there is no evidence that the primary component of the salary package, $140,000 annual salary, and superannuation commenced at that time. There is no evidence that the vehicle was provided on the basis that the Mr Scaturro would perform the role of Project Manager prior to 28 March 2011, or that DTE required him to have the vehicle for work activities before that time, or that the provision of the vehicle was in lieu of payment for work undertaken before 28 March 2018.
Relevantly, the Respondent notes ‘Indeed, the provision of the vehicle appears to have been at least partly prompted by the Applicant, because his former vehicle lease had ended’ (Exhibit R1, para [95]). Before the Tribunal, Mr Scaturro said that although he was employed by RCR Mining until 25 March 2011, ‘they did release me earlier, because I did not have a vehicle available. I could not even do any work for them at the time’ (Transcript p28 at [25]). Mr Scaturro also told the Tribunal:
at the end of February the lease was up on the vehicle that RCR had provided to me for about a good 10 years of my employment. So that vehicle was taken back to the fleet company. It would have been around the end of February or early – probably the first week in March, and that was potentially in that period was when I was able to, with Dino, source the vehicle for DTE’ (Transcript p28 at [35]).
Mr Scaturro was advised of his DTE contact details on 8 March 2011 but did not have access to his DTE email account until Sunday 27 March 2011, the day before the start date indicated on his employment contract.
Having careful regard to the foregoing, the Tribunal is not satisfied that Mr Scaturro was an employee of DTE Fluid within the meaning of subs 4(1) of the LSL Act prior to
28 March 2011. As the parties are in agreement that Mr Scaturro's employment with DTE Fluid ended on 23 March 2018, it follows that the Tribunal is not be satisfied that
Mr Scaturro was employed for a period of at least seven years. Accordingly, the Tribunal finds that he does not have an entitlement to pro rata long service leave under subs 8(3) of the LSL Act.
Entitlement to redundancy pay
The Respondent accepts that Mr Scaturro’s employment with DTE Fluid was terminated because of the insolvency of that company. However, s 121(1)(b) of the FW Act provides that s 119 of that Act does not apply to the termination of Mr Scaturro’s employment if DTE Fluid was a small business employer immediately before the time of the termination, or at the time when Mr Scaturro was given notice of the termination as described in subs 117(1), whichever happened first (Exhibit R1, para [111]).
Subsection 117(1) of the FW Act requires an employer to give an employee written notice of the day of the termination, which cannot be before the day the notice is given. The notice must be in writing and set out the date and the date of termination. There is no dispute that Mr Scaturro’s employment with DTE Fluid was terminated on 23 March 2018. The area of dispute concerns when Mr Scaturro was given written notice of the day of termination. If immediately before the termination DTE was a small business employer, there would be no entitlement to redundancy pay, or if DTE was a small business employer at the time Mr Scaturro was given notice of his termination there would be no entitlement.
Mr Scaturro contends that he received written notice of the termination of his employment on either 28 February 2018 or 1 March 2018. In relation to these dates, the Respondent told the Tribunal that DTE was not a small business employer: ‘There were more than 15 employees at DTE Group on 28 February, and I understand also on 1 March’ (Transcript p31 at [15]).
On 28 February 2018, Mr Rocke advised Mr Scaturro by email that he expected he would terminate the employment of all DTE Fluid and DTE Electrical staff the following day, with the exceptions of Kevin and Josh (ST1/516). The Applicant responded to that email, noting that he had a funeral to attend the next day but would be at work both before and after the funeral (ST4/566). The Respondent accepts that Mr Scaturro quite reasonably formed the view that he could well be terminated on the following day, 1 March 2018 (Transcript p32 at [10]), but Mr Rocke’s email was not a notice of termination within the meaning of s 117 of the FW Act. Mr Scaturro subsequently set up an automatic reply to emails sent to his DTE Fluid email address, advising that he was no longer employed by the DTE Group (ST5/571).
On 1 March 2018, Mr James Watson sent Mr Scaturro and Mr Luca Gizzarone an email asking them to circulate an attached notice of termination to other employees. That email clearly states: ‘Vince and Luca you are both retained with employment’ (FST8/684-685).
Having received Mr Scaturro’s automatic reply to his email, Mr Watson then forwarded his email to Mr Scaturro’s personal email address, confirming that the Administrators wished to continue Mr Scaturro’s employment to assist with current projects. Mr Scaturro responded to Mr Watson’s email the following morning, 2 March 2018, advising that he was available to continue with his employment, but that he would need one day carer’s leave that day and would be ‘in at work Tuesday morning as normal’ (FST8/684).
Mr Scaturro’s daughter was admitted to hospital on 1 March 2018 and Mr Scaturro contends that as a consequence he was not thinking clearly to handle communications at that time (paragraphs 50-52 above refer). The Respondent contends that Mr Scaturro’s ‘…state of mind on 1 March 2018 is irrelevant to the question of whether he was given notice of termination of employment as described in subsection 117(1) of the FW Act on that day’ (Exhibit R1, para [117]). Although sympathetic to Mr Scaturro’s personal circumstances at that time, the Tribunal agrees.
Mr Scaturro also contends that after the email from Cliff Rock on 28 February 2018,
Mr James Watson ‘attended site and provided letter of termination of employment on the 1st of March 2018 for George and my employment terminated on the 1st March 2018’ (FST12/784). There is no contemporary corroborative evidence of such a letter of termination before the Tribunal.
By email dated 4 November 2019, the Respondent (through Katherine Cooke, Senior Associate HWL Ebsworth Lawyers) sought confirmation of Mr Scaturro’s contention regarding Mr Watson’s claimed site visit (FST14/926). Mr Watson responded that Mr Scaturro’s statement was incorrect and misleading, and he confirmed that (FST14/926):
·He did not attend the Company’s site on 1 March 2018 nor meet with Mr Scaturro on this day.
·A notice of termination for George McQuade was provided to Mr Scaturro by email which also advised Mr Scaturro that ‘Vince and Luca you are both retained with employment’.
·Mr Scaturro was terminated on 23 March 2018.
In considering Mr Watson’s response and as already mentioned in these reasons, s 35 of the FEG Act provides that for the purposes of deciding whether a person is eligible for an advance, the Respondent or Tribunal may presume that information relating to the person that is provided to the Respondent or Tribunal by an insolvency practitioner for the employer is accurate.
The Tribunal is satisfied that the evidence is that during the period 28 February 2018 to
1 March 2018, Mr Scaturro was not given notice of the day on which his employment would terminate.
On 21 March 2018, Mr Scaturro emailed the Administrators asking when he would receive a ‘letter of termination/redundancy’. Mr Watson responded by email on that same date that Mr Scaturro would receive the requested ‘on or after your final day, being 23 March 2018’ (T4/34).
On 23 March 2018, Mr James Watson sent an email to Mr Scaturro and Luca Gizzarone requesting confirmation that their jobs were finished and seeking details of any outstanding invoices. That email states in part ‘Today being your last day…We will look to have the termination letters and final pays for you sorted shortly, if you can please provide the above in the interim’ (FST14/971-972).
The Tribunal is satisfied that there is no evidence before it that Mr Scaturro was given a notice of termination prior to 23 March 2018. Further, the Respondent notes, and
Mr Scaturro does not dispute, that Mr Scaturro has received an advance for payment in lieu of notice which was calculated on the premise that his employment was terminated without notice on 23 March 2018 (Exhibit R1, para [120]).
Section 121 of the FW Act requires the Tribunal to determine whether DTE Fluid was a small business employer immediately before the time of Mr Scaturro’s termination. In the matter Mi and Secretary, Department of Employment [2016] AATA 419, the Tribunal found that there was no discretion to look to an earlier date such as the date when the employment of a number of other employees was terminated. In the present matter, the Tribunal must confine itself to an assessment of whether DTE Fluid was a small business employer on 23 March 2018.
The Respondent in Exhibit R1, paragraph 110 relevantly cites the matter of Gayed and Secretary, Department of Jobs and Small Business [2019] AATA 1132, to define the Tribunal’s task:
Mr Gayed's employment with his former employer was terminated without notice on 11 October 2016. Before the Tribunal, Mr Gayed inferred that his last day with his former employer should be taken as 25 September 2016, when the majority of staff were terminated, and not 11 October 2016. The Tribunal found that his employment was terminated by his former employer on 11 October 2016, and that his former employer was a small business employer at that time as it employed five employees The Tribunal determined that he was therefore not entitled to redundancy pay under the FW Act, and was not entitled to an advance on account of redundancy pay under the FEG Act.
Pursuant to s 23 of the FW Act, DTE Fluid was a small business employer if it employed less than 15 employees at that time. The evidence is that by 23 March 2018 Mr Scaturro was the only remaining employee of DTE Fluid. The employment of all of the employees of Diverse Tank Engineering — the main employing entity in the DTE Group of companies, which formerly employed 38 of the group's 48 employees — had been terminated before 21 March 2018. The Tribunal is satisfied that all of the available evidence supports a finding that the company was a small business employer at
23 March 2018.
Having found that Mr Scaturro did not receive a notice of termination prior to
23 March 2018, and that at that time DTE Fluid was a small business employer, the Tribunal finds that s 121 of the FW Act operates to exclude the application of s 119 of that Act to the termination of Mr Scaturro’s employment and he is consequently not entitled to an advance on account of redundancy pay under the FEG Act.
CONCLUSION
For the reasons given above, the Tribunal finds that Mr Scaturro is not entitled to an advance on account of long service leave or redundancy pay.
DECISION
132.The Tribunal affirms the decision under review.
I certify that the preceding 132 (one hundred and thirty-two) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member
...........................[sgd].............................................
Associate
Dated: 10 March 2020
Date of hearing: 27 November 2019 Applicant: In person Counsel for the Respondent: Mr Lex Holcombe Solicitors for the Respondent: HWL Ebsworth Lawyers
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