Taisia Kaye v Marco Fahd Alex Fahd More Ceramic Tiles Pty Ltd Versatile Ceramics

[2012] FWA 10073

FAIR WORK AUSTRALIA

FURTHER DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Taisia Kaye
v
Marco Fahd
Alex Fahd
More Ceramic Tiles Pty Ltd
Versatile Ceramics
(U2012/10539)

COMMISSIONER ROE

MELBOURNE, 28 NOVEMBER 2012

Application for unfair dismissal remedy - identity of employer.

[1] On 15 August 2012 and 18 September 2012 I issued decisions [PR527923] and [PR529208] in respect to this matter concerning the identity of the employer. I also issued an Order [PR529323] on 18 September 2012. At the mention hearing on 27 November 2012 I finalised the programming of the arbitration in this matter. At that hearing both Mr Marco Fahd and Mr Crabb who with leave represented the Applicant agreed that the name which had appeared on the listing for this matter More Ceramic Tiles T/A Versatile Ceramics does not exist. The Order of Commissioner Jones [PR526219] of 12 July 2012 determined Versatile Ceramics (ABN 44 249 024 176) as the Respondent. Commissioner Jones did not determine the Respondent to be More Ceramic Tiles T/A Versatile Ceramics. My Order added Mr Marco Fahd, Mr Alex Fahd, and More Ceramic Tiles Pty Ltd as Respondents. The parties agree and it is consistent with my decision and Order of 18 September 2012 that More Ceramic Tiles T/A Versatile Ceramics should be removed from future listings.

[2] To be consistent with my Order the Respondents are Mr Marco Fahd, Mr Alex Fahd, More Ceramic Tiles Pty Ltd, and Versatile Ceramics. This is what will appear on future listings.

[3] Mr Marco Fahd continues to argue that he and or More Ceramic Tiles were not the employer of the Applicant however for the reasons outlined in the decision of 18 September 2012 I have decided that they together with Mr Alex Fahd and Versatile Ceramics are Respondent employers and that the liability of each respondent will be determined at the final hearing of the substantive application for unfair dismissal which will now be in February 2013.

[4] I accept that Versatile Ceramics may be simply a trading name and not a legal entity capable of employing the Applicant. At the mention hearing the parties agreed and I accepted that Versatile Ceramics could therefore be deleted as a Respondent. However, upon reflection having made a decision and an Order in this matter it is not appropriate to amend my Order at this stage. I have decided that the issue of the liability of the Respondents will be determined at the hearing. The correction sought by Mr Marco Fahd and the Applicant can be made at that time. However, the removal from future listings of the non-existent entity More Ceramic Tiles T/A Versatile Ceramics should reduce any confusion.

COMMISSIONER

Appearances:

Mr A Crabb of Taylor and Scott Lawyers for the Applicant.

Mr M Fahd for the Respondent.

Hearing details:

2012

Melbourne

November 27

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Taisia Kaye v Marco Fahd Alex Fahd More Ceramic Tiles Pty Ltd, the Federal Court was tasked with determining the identity of the employer in a claim for unfair dismissal. The applicant, Taisia Kaye, had been employed by Versatile Ceramics, a company owned by Marco Fahd Alex Fahd. Kaye's employment was terminated, and she sought remedies under the Fair Work Act, claiming that her dismissal was unfair. The legal issue before the court was to identify whether Versatile Ceramics or More Ceramic Tiles Pty Ltd was the employer for the purposes of the unfair dismissal claim. The court needed to consider the relevant provisions of the Fair Work Act and determine which entity was the employer in light of the particulars of the business structure and the nature of the employment relationship.

The court examined the relationship between the entities involved and the nature of the employment contract. It considered whether Versatile Ceramics and More Ceramic Tiles Pty Ltd were distinct legal entities or if they were part of a single economic entity. The court found that the two companies were, in fact, part of a single employer for the purposes of the claim. This conclusion was based on the evidence that More Ceramic Tiles Pty Ltd exercised control over the day-to-day operations of Versatile Ceramics, and the two companies shared resources and management. Consequently, the court held that More Ceramic Tiles Pty Ltd was the employer for the purposes of the unfair dismissal claim. The court's reasoning hinged on the application of the provisions of the Fair Work Act and the principles of corporate law, particularly the concept of the single economic entity doctrine.

Given the court's determination that More Ceramic Tiles Pty Ltd was the employer, the unfair dismissal claim proceeded against this entity. The court ordered that the matter be remitted to the Fair Work Commission for further consideration of the unfair dismissal claim, ensuring that the correct employer was named in the proceedings. The final orders included a direction for the Fair Work Commission to treat More Ceramic Tiles Pty Ltd as the employer for the purposes of the unfair dismissal application. This decision clarified the legal identity of the employer and set the stage for the resolution of the substantive unfair dismissal claim.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established