Sherif Sulejman v Cleaning Facility Management Pty Ltd T/A PPM Corporate

[2016] FWC 2281

[2016] FWC 2281

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sherif Sulejman
v
Cleaning Facility Management Pty Ltd T/A PPM Corporate
(U2016/4738)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 12 APRIL 2016

Application for relief from unfair dismissal.

[1] Mr Sherif Sulejman was employed by Cleaning Facility Cleaning Management Pty Ltd until his employment was terminated on 4 February 2016. CFCM objected to his application because it said he had not served the minimum employment period and he earned more than the high income threshold.

The minimum period of employment

[2] Mr Sulejman was employed as the General Manager of CFCM. Mr Sulejman said he commenced employment on 1 August 2015. 1

[3] It was not contested that CFCM was incorporated on 25 August 2015. It is not disputed that CFCM is a not a small business.

[4] The evidence established that Mr Sulejman’s company Struga Nominees Pty Ltd went into administration on 5 August 2015. The Administrator of Struga sold Struga’s business which traded as PPM Corporate to CFCM on 26 August 2015. 2

[5] Mr Sulejman gave uncontested evidence that he was an employee of Stuga prior to his employment with CFCM. 3

[6] Mr Sulejman said he was employed by CFCM prior to 25 August 2015. He tendered evidence that on 27 August 2015 he was paid $5797.38 for 3 weeks work. This is a fortnightly pay of $3864.92. 4

[7] Sections 383 and 384 of the Fair Work Act 2009 provide as follows:

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.

384 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.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;
the period of service with the old employer does not count towards the employee’s period of employment with the new employer.

[8] Ms Saraceni, Counsel for CFCM, submitted that s.384(2)(b) of the Act only applied to casual employees. I do not agree. There is no reference to casual employees in this section. Ms Saraceni sited no authority for her proposition other than the reference to casual employees in s.384(2)(a). The construction put forward by Ms Saraceni is not consistent with the Explanatory Memorandum which makes it clear that s.384(2)(b) deals with the service of transferring employees.

[9] There was no evidence before me that prior to commencing employment with CFCM Mr Sulejman was provided advice in writing that his service with Struga would not be recognised.

[10] As such it is not necessary for me to determine if an oral contract of employment was entered into prior to the incorporation of CFCM or if pursuant to s.131 of the Corporations Act2001 the contract was ratified or if Mr Sulejman performed work for CFCM prior to its incorporation.

[11] There was no dispute that the business of Struga transferred to CFCM 5 and that Mr Sulejman was a transferring employee.

[12] I am therefore satisfied that Mr Sulejman had served the minimum period of employment.

The High Income Threshold

[13] The question then to be determined is whether Mr Sulejman earned more than the high income threshold of $136,700.

[14] Mr Sulejman gave evidence that he earned $145,000 inclusive of superannuation and CFCM said he earned $145,000 plus superannuation.

[15] CFCM did not provide Mr Sulejman with payslips during his employment. It said that when it took over the business the payroll records were in a mess and it took time to sort this out. However there was no reasonable explanation of why it was not able to issue payslips to employees once it took over the business. While I accept that working out employees leave balances may have taken some time once CFCM commenced employing the employees, it had an obligation under the Act to provide employees with payslips.

[16] CFCM tendered payslips for Mr Sulejman but there is no evidence that he was provided with these prior to his dismissal.

[17] The payslips recorded that Mr Sulejman was paid a gross wage of $5,575.51 per fortnight with a net pay of $3,864.92 and superannuation of $529.67. Bank statements showed that Mr Sulejman received fortnightly payments of $3864.92. Mr Sulejman did not dispute that this was his fortnightly net pay.

[18] CFCM also tendered records of superannuation payments made for Mr Sulejman which had been paid in April 2016. That amount did not match the amount recorded on Mr Sulejman’s final payslip. No submissions were made about this discrepancy. However whatever was paid in superannuation it was in addition to the net amount paid to Mr Sulejman.

[19] Mr Sulejman relied upon a series of text messages to support his claim that the $145,000 was inclusive of superannuation.

[20] On 13 August 2015, there was an exchange between Mr Sulejman and the Group General Manager about his package. Mr Sulejman proposed $140K plus superannuation. The Group General Manager proposed $150K including super and 32.5% (a reference to Mr Sulejman proposed share of the business). Mr Sulejman replied “lets keep it at 35% shareholding and $145K including superannuation. The Group General Manager accepted this proposal. After that Mr Sulejman text messaged and said “hey mate do I get a car.” There is no evidence before me of the response to that inquiry.

[21] CFCM tendered an email sent by Mr Sulejman to PPM Accounts on 17 August 2015. It said: “Plus my pay will be based on $145,000 plus super. So I am owed two weeks since the start from this month.”

[22] Mr Sulejman said that his pay remained unchanged from when he worked for his own company.

[23] It was not disputed that Mr Sulejman was paid a net figure of $3,864.92 per fortnight. Tthe Australia Tax Office tax calculator discloses that if an employee earns $5,575.51 per fortnight, the employee’s after tax income is $3,863.51.

[24] The email sent by Mr Sulejman to PPM Accounts is consistent with his evidence that he commenced work with CFCM prior to its incorporation. The email is expressed in the future tense and appears to be advice to PPM Accounts about what his pay will be in the future. The amount claimed by Mr Sulejman was for work he said he performed for CFCM prior to its incorporation.

[25] The email is consistent with what Mr Sulejman was in fact paid.

[26] It was put that the text messages between the Group General Manager and Mr Sulejman represented the agreement between the parties and that the payments made to Mr Sulejman may have included an overpayment. I do not accept this submission. The text exchange was incomplete.

[27] It is unclear, if after Mr Sulejman asked about the car, negotiations continued. In any event, it is clear from Mr Sulejman’s own email sent after this date that his package was $145,000 plus superannuation and that was what was paid to him.

[28] I am therefore satisfied that Mr Sulejman salary of $145,000 exceeded the high income threshold.

Was Mr Sulejman covered by an Award?

[29] Section 48 of the Act makes it clear that “[a] modern award covers an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity.”

[30] It was submitted that Mr Sulejman’s employment was covered by the Cleaning Services Award 2010.

[31] The Award provides at clause 4 as follows:

“4. Coverage

4.1 This industry award covers employers throughout Australia in the contract cleaning services industry and their employees in the classifications listed in Schedule D—Classifications to the exclusion of any other modern award.

4.2 The contract cleaning services industry means the business of providing cleaning services under a contract and includes:
(a) cleaning (including event cleaning, trolley collection and hygiene and pollution controlbut excluding trolley collection covered by the General Retail Industry Award 2010); and
(b) minor property maintenance which is incidental or peripheral to cleaning.

4.3 For the purpose of clause 4.2(a), event cleaning means the provision of cleaning, in connection with the staging of sporting, cultural, scientific, technological, and agricultural or entertainment events and exhibitions.

4.4 The award does not cover an employee excluded from award coverage by the Act.

[32] Schedule D sets out the classification structure and relevantly provides:

D.3 A Cleaning Service Employee Level Three (CSE 3) is an employee who at the completion of training performs work above and beyond the skills of an employee at CSE 2 notwithstanding the fact that a CSE 3 may be required to perform any duties of a CSE 1 or CSE 2. An employee at this level:

● works from complex instructions and procedures;
● assists in the provision of on-the-job training;
● co-ordinates the work of CSE 1s and CSE 2s and generally superintends the activity of all the building cleaners as a building supervisor or manager;
● is responsible for ensuring the quality of their work; and
● has a knowledge of the employer’s operation.

D.3.1 Indicative of the tasks which an employee at this level may perform are the following:

● ensuring that proper maintenance procedures for building plant and equipment are observed;
● arranging service calls to ensure that building plant is operating correctly;
● dealing with tenants and owners responsible with respect to the proper cleaning, servicing and functioning of the building;
● co-ordinating the work with leading hands of all building cleaners;
● handling routine personnel, industrial relations and health and safety matters; and
● being directly involved in the provision of on-the-job training.”

[33] Mr Sulejman in an email dated 4 January 2016 set out his current duties as General Manager of PPM Corporate. 6 He did not, in his witness statement, give any details about the work he performed. He agreed that the email accurately reflected his duties. While his representative made submissions about his duties this was not part of Mr Sulejman’s evidence.

[34] To determine whether an employee is employed under a classification within a modern award the Commission must assess the nature of the work and ascertain the principal purpose for which the employee was employed. 7

[35] I am not satisfied that the principle purpose of Mr Sulejman’s employment was that of a cleaning services employee level 3. He was employed as the General Manager and in his own words his priority was completing quotes for customers; business development to bring in more work; pricing contracts; overseeing invoicing of clients and employee wages to ensure profitability. He was to supervise the Area Manager and the Building Manager. That Mr Sulejman occasionally performed cleaning duties does not change the principle purpose for what he was employed.

[36] I am therefore not satisfied that the Cleaning Services Award 2010 covered Mr Sulejman’s employment.

Conclusion

[37] As I have found Mr Sulejman’s income exceeded the high income threshold and that his employment was not covered by the Award he was not protected from unfair dismissal and his application must be dismissed. An order giving effect to this decision will be issued.

DEPUTY PRESIDENT

Appearances:

Mr C. Silver representing the Applicant

Ms M. Saraceni representing Cleaning Facility Cleaning Management Pty Ltd

Hearing details:

2016.

Melbourne to Perth by Videolink:

April 8.

 1   Exhibit A1 at [9]

 2   Exhibit R1 at attachment BDP2

 3   Exhibit A1 at [2]

 4   Exhibit A1 at [15]

 5   See s.311

 6   Exhibit R2.

 7   Carpenter v Corona Manufacturing Pty Ltd (2002) 122 IR 387 [9]; cited in McMenemy v Thomas Duryea Consulting Pty Ltd T/A Thomas Duryea Consulting (2012) 223 IR 125 [11].

Printed by authority of the Commonwealth Government Printer

<Price code C, PR578954>