Steven Perrine v Personalised Freight Management

[2015] FWC 1255

[2015] FWC 1255

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Perrine
v
Personalised Freight Management
(U2014/9057)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 FEBRUARY 2015

Application for relief from unfair dismissal.

[1] Mr Steven Perrine alleged that the termination of his employment by Personalised Freight Management was unfair.

[2] GPI (General) Pty Ltd trading as Personalised Freight Management filed a Form F3 and objected to the application on the basis that Mr Perrine was not employed by Personalised Freight Management but was employed by All States Personnel Pty Ltd, a labour hire company.

[3] Mr Perrine filed an application to change the name of the Respondent to All States Personnel. All States Personnel opposed the application. Mr Perrine submitted that prior to his application to amend being determined, the objection by Personalised Freight Management should be resolved.

[4] Both companies were notified of the hearing and Mr Chris McArdle represented both companies at the hearing.

[5] At the hearing Mr Perrine gave evidence that he applied for a job with Personalised Freight Management over the internet. 1 He sent his CV in and was contacted by Mr Peter MacDougall who interviewed him the next day and offered him a job and he started work the next day.2

[6] Mr Perrine gave evidence that there was no mention of All States Personnel at the interview. 3 He said the first he was aware of All States Personnel was when a member of staff of the Fair Work Commission contacted him after he lodged his application for an unfair dismissal remedy.4

[7] Mr Perrine said he checked his payslips each week but did not notice that they referred to All States Personnel. 5 Mr Perrine was issued with an identity card with the initials PFM.6 He was never issued an identity card by All States Personnel7 and he wore a uniform that had the PFM logo on it as did his high visibility vest. 8

[8] He said he did not sign any documents until after his first day of work 9 but he did not have a copy of the documents he signed.

[9] In cross examination Mr Perrine accepted that he signed a tax declaration form but he could not remember whether it referred to All States Personnel. 10

[10] He accepted that he signed a document on 2 June 2014 which was on All States Personnel letterhead. 11 That letter confirmed an increase in his rate of pay and advised that all other terms of employment would remain unchanged. It was signed by Mr Glen Stewart, the Chief Executive Officer.12

[11] Mr Perrine did not challenge that he received PAYG statement with All States Personnel listed at the payer’s name. 13

[12] He also accepted that the Child Support Agency named his employer as All States Personnel. 14

[13] In cross examination he denied being told at the interview that his employer was All States Personnel. 15

[14] Mr Ray Hughes from All States Personnel gave evidence of the matters leading to Mr Perrine’s employment ending. Mr Hughes was not employed by All States Personnel at the time Mr Perrine was employed and was not able to give any evidence about his engagement.

[15] The evidence established that All States Personnel and Personalised Freight Management have the same office holders and the sole shareholder of both companies is Mr Grahamme McDougall. They have the same registered office and the principal place of business of both companies is the same. 16

[16] I accept the submission of Mr Perrine that Personalised Freight Management, as it has made an objection to the application, must prove that it is not Mr Perrine’s employer.

[17] Personalised Freight Management called no evidence about Mr Perrine’s engagement and did not challenge Mr Perrine’s evidence that he responded to an advertisement from Personalised Freight Management. While it was put to Mr Perrine that he was told at the interview that All States Personnel was his employer, this was denied and no evidence was called by All States Personnel to support this proposition.

[18] Personalised Freight Management relied upon the payslips, the group certificate, the child support agency notice to All States Personnel and the letter of 29 May 2014.

[19] I accept Mr Perrine’s un-contradicted evidence that he was offered and accepted employment with Personalised Freight Management. Mr Perrine was not cross examined on this evidence.

[20] That Mr Perrine was paid by All States Personnel is not determinative of whether there was a contract of employment between Mr Perrine and Personalised Freight Management. 17 The payslips the group certificate and the notice from the child support agency are all consistent with All States Personnel being the payer of Mr Perrine’s wages. They do not establish that All States Personnel was Mr Perrine’s employer.

[21] I also do not accept that the letter provided to Mr Perrine in July 2014 was sufficient to change the identity of his employer.

[22] I would have expected that had there been documents signed by Mr Perrine at the time of his engagement that identified All States Personnel as the employer they would have been produced at the hearing. Mr McArdle suggested such documents existed but they were not tendered.

[23] I find therefore that Mr Perrine was employed by GPI (General) Pty Ltd trading as Personalised Freight Management. The objection lodged by Personalised Freight Management is therefore dismissed.

[24] Unless the parties advise by noon on 26 February 2014 that they consent to the matter being referred to conciliation the application will be referred to arbitration.

DEPUTY PRESIDENT

Appearances:

A. Jenshel for the Applicant.

C. McArdle for the Respondent.

Hearing details:

2015.

Melbourne, Sydney and Brisbane, by video link.

28 January.

 1   Transcript PN 3

 2   Ibid PN 7-13

 3   Ibid PN 16

 4   Ibid PN 17

 5   Ibid PN 19-21

 6   Ibid PN 22-38

 7   Ibid PN 39

 8   Ibid PN 40-45

 9   Ibid PN 50

 10   Ibid PN 100

 11   Ibid PN 101

 12   Submissions of the Respondent

 13   Transcript PN 102

 14   Ibid PN 105

 15   Ibid PN 127

 16   Exhibit A4 and A5

 17   Damevski v Guidice [2003] FCAFC 252 at [63]

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