Stephen Weber v Watts & Hastie Family Trust T/A Watts Asbestos

[2014] FWC 7481

[2014] FWC 7481

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Weber
v
WATTS & HASTIE FAMILY TRUST T/A Watts Asbestos
(U2014/7695)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 24 OCTOBER 2014

Application for relief from unfair dismissal - employee an independent contractor - termination of employment not at the initiative of the employer.

[1] On 2 June 2014 Mr Weber lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act). In that application, Mr Weber asserted that his employment by Watts & Hastie Family Trust T/A Watts Asbestos (Watts Asbestos) had been unfairly terminated. This decision sets out my conclusions about various preliminary issues associated with that application. It details the difficult circumstances under which this matter has been considered to date.

[2] Mr Weber’s application was the subject of an attempted telephone conciliation conference on 3 July 2014. The Fair Work Commission (FWC) conciliator was concerned at the behaviour and assertions made by Mr Watts of Watts Asbestos who ultimately terminated that telephone discussion. The police were advised of the FWC concerns. No further attempt at conciliation was made and the application was referred to me for determination.

[3] An Employer’s Response (Form F3) to the application was received and advised that Watts Asbestos was represented by Ms Dale, of counsel. That response advised that the employer position was that Mr Weber was not dismissed and that he was not engaged as an employee but was rather, an independent contractor. The application was been listed for a telephone directions conference on 17 July 2014.

[4] On 14 and 15 July 2014 Mr Watts forwarded to the FWC a series of entirely inappropriate emails. Once again, advice of these emails was provided to the police.

[5] At the telephone directions conference on 17 July 2014 Mr Andrews, of counsel, represented Watts Asbestos and advised that he was ceasing to act for Watts Asbestos. This conference did, however, identify an additional initial issue in terms of the potential application of the Small Business Fair Dismissal Code. I advised that I proposed to initially consider the jurisdictional and initial issues on the basis of written advice to be provided by both parties and that I would advise the parties if I was unable to reach a position on the basis of that written material.

[6] Following that conference I issued directions in the following relevant terms:

“[2] At that conference I confirmed to the parties that the application had been referred to me for determination and that I was not prepared to facilitate further conciliation of the matter by the Fair Work Commission.

[3] I advised that the information provided in the Employers Response (Form F3) which is attached, indicated that there are at least three possible initial or jurisdictional issues which require determination before the merits of the application can be considered. These likely initial issues are:

1. Whether Mr Weber was an employee.

2. Whether Mr Weber was dismissed.

3. Whether the Small Business Fair Dismissal Code has application and, if so, whether the termination of Mr Weber’s employment was consistent with that Code.

[4] Section 396 of the Fair Work Act 2009 (the Act) requires that these issues be considered before the merits of the application are addressed.

[5] As a consequence of e-mails sent to a staff member of the Fair Work Commission on 14 and 15 July 2014 I am not prepared to convene a hearing to consider these initial matters and instead, propose to consider them on the basis of written submissions and material provided consistent with the following timetable. If this is not possible I will advise the parties accordingly.”

[7] My directions also set out timeframes for the provision of material relative to these issues. In addition, a significant amount of explanatory information was provided to the parties.

[8] Mr Weber subsequently provided a statement and Mr Watts provided some 47 emails. The majority of those emails were unrelated to the initial and jurisdictional issues. Again, I note that the content of certain of these emails was such that they were brought to the attention of the police. In overall terms, the material provided to me by both parties did not enable a conclusion to be reached relative to the specified initial or jurisdictional issues and clearly disputed facts. As a consequence, the matter was listed for a telephone hearing on 16 October 2014. The parties were invited to provide any additional material prior to this hearing and Mr Weber did this, although these additional submissions were primarily directed at responding to the various allegations made by Mr Watts.

[9] I have set out below my conclusions about these initial or jurisdictional issues. In reaching these conclusions I have taken into account all of the material provided to me including the evidence of Mr Weber and Mr Watts given at the hearing on 16 October 2014.

Was Mr Weber an employee?

[10] Mr Weber has made an unfair dismissal application. Simply put, if he was a contractor, he is not then a person who is protected from unfair dismissal and he is unable to pursue his application. My consideration of Mr Weber’s standing as an employee is based on the approach which has been adopted by the FWC and the Courts in numerous other issues. As a matter of convenience, I particularly refer to the position adopted in Abdulla v Viewdaze. 1

[11] Mr Weber undertook asbestos removal work for Watts Asbestos. In his evidence he confirmed that he utilised the Watts Asbestos operating licence, its tools and equipment including vehicles and that he worked at places and times determined by Watts Asbestos. He advised that he generally wore a Watts Asbestos uniform, that he was paid whilst travelling and that payments at an hourly rate of $50 per hour were made to him on a weekly basis, based on his provision to Mr Watts of a statement of the hours he worked each week. Mr Weber advised that he did not quote for jobs but that this function was undertaken by Mr Watts who also arranged for all licences. Mr Weber was generally allocated work on a daily basis through telephone or face-to-face discussions with Mr Watts. Mr Weber confirmed that no tax was deducted from the payments made to him as the result of an arrangement that he had reached with Mr Watts, and that he understood he had to advise Mr Watts if he was unable to work.

[12] Mr Watts agreed with the majority of this advice. He confirmed that Mr Weber generally worked between two and seven days of each week. Mr Watts did not identify characteristics of the arrangement he had with Mr Weber which were indicative of an alternative contracting arrangement.

[13] On the approach applied in Abdulla, I am satisfied that the vast majority of the characteristics of the relationship between Mr Weber and Watts Asbestos clearly indicate that Mr Weber was an employee and that he undertook work which was covered by a modern award in the form of the Building and Construction General Award 2010 so that he was a person who was protected from unfair dismissal. I have concluded that Mr Weber worked as a regular casual employee.

Was Mr Weber dismissed?

[14] Notwithstanding my conclusion that Mr Weber was an employee, it is also necessary that I be satisfied he was dismissed from his employment. Section 396 relevantly states:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[15] Mr Watts asserts that the employment arrangement was concluded by mutual agreement rather than at the initiative of the employer. Mr Weber asserts that Mr Watts concluded the employment relationship through a series of text messages which occurred between 8 May 2014 and 24 May 2014. I have been provided with the text messages relied on by the parties although a small amount of the content of those messages cannot be discerned.

[16] There is no dispute that Mr Weber last worked for Watts Asbestos on 1 and 2 May 2014. There is no agreement that Mr Weber was uncontactable after that time but I have concluded, on the basis of Mr Watts' evidence and the text messages, that this was the case.

[17] On 8 May 2014 Mr Watts requested that Mr Weber bring a truck back that night or by 8.00 am the following morning. Mr Weber responded by advising he would bring it back the next morning. It appears that the truck was not returned. On 12 May 2014 Mr Watts initiated the following text message exchange with Mr Weber: 2

“Mr Watts:

Bring keys around and leave under cushion on lounge. pick up your tools from trailer and bring back any of my stuff. will catch up when you get yourself sorted out. regards Andy

12/05/2014, 8:51 AM

Mr Weber:

Andy if u do not pay me the 200 dollars u withheld from my pay last week 4 no reason an i miss paying my house payment u will start a war with me i am not a good enemy 2 have with all the ammo i got on u you will receive a letter next week which will clearly see the business preposal i will be offering u oua the termination of my employment i would give me the money u owe me 2nite or i will iegally make ur life hell you have bitten off way 2 much this time messing with my life you dont scare me 1 bit buddie u gone way ova the mark this time reguard stephen

13/05/2014, 4:26 PM

Mr Watts:

Have time off.regroup youself I will see you with 200 cash knuckle head Hand over the keys when I get there and stay cool. I can’t operate the business when you are notcontactable.

13/05/2014, 4:43 PM

Mr Weber:

The keys taped 2 front gate put money in letter box an fuk off i way 2 mad 4 u c get anywhere near me got it

13/05/2014, 5:00 PM

Mr Watts:

Money in letter box. The deduction was for. Phone calls from Fiji to try and find you. Worried you were in hospital.broken window on last job.all you needed to do was tell me not the client. ..... took me and the job for granted and you are probably angry with yourself. How can I organize work when you are so hard to get a hold of. Very frustrating for me. You are not fired. You just need to get a bit responsible Steve. Go and have a game of golf and have a think. I’m disregarding your earlier text as I know you are angry at the moment.and I don’t really care. Anyway take care and come and have a coffee when you know that you want to do with your life. Cheers Andy.

13/05/2014, 6:00 PM

Mr Watts:

Out front of your place Steve.need tools and I need my ladder back for work tomorrow. Thanks Andy

24/05/2014, 5:03 PM

Mr Weber:

I have no tools of yours but i do have 1 broken unusable ladder here if u want if back an i return it

24/05/2014, 5:33 PM

Mr Watts:

Thanks also tin snips I bought etc. Thanks Andy. just leave in front yard. Bad luck with your court case for the dope crop. So just drop it off and lets leave it as that. Don’t want to have to come around with police and collect.have report number from police about your text message. Look forward to your business offer. Haven’t received your letter of proposal yet. Maybe you can post or whilst droping gear off you can put it under front door. have closed all access to hardware stores etc.have spoken to safe work. They said they have heard it all before from ex worker’s and could not be bothered. Have other stuff to do. Everyone knows the way your acting is only because of the heavy drug’s your on. sorry you have gone so low. think best after the tools are dropped off you and pope just leave me alone and not come back.if anything missing or damaged I will have to report to police. Take care and like Julie said get some help.

24/05/2014, 5:52 PM” (sic)

[18] Both Mr Weber and Mr Watts confirmed that apart from these text messages, no other correspondence or communication was exchanged. Mr Watts advised that the reference to Fiji arose because he had property in that country and was in that country shortly before this text message exchange commenced. Further, Mr Watts advised that he had discussed with Mr Weber a potential arrangement whereby, in return for Mr Weber managing the Watts Asbestos business for part of the year, Mr Weber could also share accommodation on this Fijian property.

[19] On the information before me I have concluded that Mr Weber elected to take this text message exchange as advice of the termination of his employment. Had he followed Mr Watts’ advice and discussed the matter with Mr Watts, there may well have been an entirely different outcome. Mr Weber asserts that he was entitled to take Mr Watts' text message advices to him as employment termination advices on the basis of a similar approach applied by Mr Watts some eight months earlier, which resulted in the termination of his employment for a period of approximately one week. Evidence of that incident is not before me to the extent that this is established. Mr Watts does not recall this event. Furthermore, if it was the case that Mr Weber’s employment was terminated eight months ago, this would mean that, on his own case, Mr Weber had not then completed the requisite minimum employment period specified in s.383 since he was re-engaged.

[20] It is clear to me that, by 24 May 2014, Mr Watts regarded the relationship as concluded. His advice that Mr Weber’s access to hardware stores where he purchased materials for Watts Asbestos was revoked and the fact that no further work was allocated to Mr Weber confirm this.

[21] I have concluded, on the basis of the evidence put to me, and the originating text message of 8 May 2014 from Mr Watts, that Mr Watts was unable to contact Mr Weber. Mr Watts’ text messages of 10, 12 and 13 May 2014 all appear to propose a continuing employment relationship. I have concluded that it was Mr Weber’s messages of 13 May 2014 which indicated that Mr Weber regarded the employment relationship as having been concluded. I am not satisfied that a basis for that conclusion has been made out to me such that I can regard the termination of Mr Weber’s employment as being at the initiative of the employer.

[22] I have had particular regard to Mr Weber's assertions that he assumed that Mr Watts was terminating his employment because of Mr Watts' past behaviours. However, absent evidence to that effect, or evidence of any reasonable attempt on Mr Weber's part to clarify his employment standing, I am not able to agree that the words in Mr Watts' text messages can be construed as a dismissal.

[23] In reaching this conclusion I have considered Mr Watts’ behaviour in dealing with the Fair Work Commission. That behaviour can only be described as belligerent and somewhat irrational. Had the text messages sent by Mr Watts been of a similar nature I may have arrived at a different conclusion.

[24] Consequently, I am not satisfied that, for the purposes of s.394(1) and s.386, Mr Weber has been dismissed. I have concluded, on the evidence before me that Mr Weber mistakenly assumed his employment had been terminated at Mr Watts' initiative and reacted accordingly. In these circumstances I do not consider it necessary to consider the operation of the Small Business Fair Dismissal Code. Mr Weber’s application will be dismissed in accordance with an Order (PR556885) reflecting this decision.

SENIOR DEPUTY PRESIDENT

Appearances (By telephone):

S Weber on his own behalf.

A Watts for Watts Asbestos

Hearing details:

2014.

Adelaide:

October 16.

<Price code C, PR556884>

 1 (2003 IR 215)

 2   Respondent email to Commission, 27 September 2014, 7:51pm

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