The Director of the Fair Work Building Industry Inspectorate v Robko Construction Pty Ltd
[2014] FCCA 2257
•3 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| THE DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE v ROBKO CONSTRUCTION PTY LTD & ANOR | [2014] FCCA 2257 |
| Catchwords: INDUSTRIAL LAW – Sham arrangement – two contraventions of Fair Work Act (Cth) (“the Act”) provisions – employer terminating employee in order to engage her as an independent contractor to perform the same work as she performed as an employee contrary to s.358 of the Act – employer failing to give dismissed employee required number of days notice of termination or pay in lieu of notice contrary to s.117 and s.44(1) of the Act – owner and managing director of company found to be knowingly involved in both contraventions. |
| Legislation: Building and Construction Industry General Onsite Award 2010 Evidence Act 1995 (Cth), s.140 Fair Work Act 2009 (Cth), ss.44, 117, 361, 358, 550 |
| Fair Work Ombudsman v Maclean Bay Pty Ltd (2012) 200 FCR 57 Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (No.2) [2013] FCA 582 Jones v Dunkel (1959) 101 CLR 298 |
| Applicant: | THE DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE |
| First Respondent: | ROBKO CONSTRUCTION PTY LTD ACN 130 260 909 |
| Second Respondent: | EVERETTE GALE EBER ROBBINS |
| File Number: | ADG 294 of 2011 |
| Judgment of: | Judge Simpson |
| Hearing date: | 20 March 2013 |
| Date of Last Submission: | 22 March 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 3 October 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr S A McDonald |
| Solicitors for the Applicant: | Piper Alderman |
| Counsel for the First & Respondents: | Mr A Manos |
| Solicitors for the First & Respondents: | Fenwick Elliott Grace |
ORDERS THAT THERE BE DECLARATIONS THAT:
The first respondent, Robko Construction Pty Ltd ACN 130 260 909 contravened:
(a)s.44 of the Fair Work Act 2009 (Cth) (“the Act”); and
(b)s.358 of the Act.
The second respondent, Everette Gale Eber Robbins, by operation of s.550 of the Act contravened:
(a)s.44 of the Act; and
(b)s.358 of the Act.
IT IS FURTHER ORDERED THAT:
The matter is adjourned to a date and time to be fixed for hearing in relation to penalty and compensatory orders.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 294 of 2011
| THE DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE |
Applicant
And
| ROBKO CONSTRUCTION PTY LTD ACN 130 260 909 |
First Respondent
| EVERETTE GALE EBER ROBBINS |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In these reasons, a statement of fact is a finding of fact arrived at on the balance of probabilities after consideration of all of the evidence.
I have before me an application brought by the Director of the Fair Work Building Industry Inspectorate seeking orders against the first respondent, Robko Constructions Pty Ltd (“Robko”), and the second respondent, Everette Gale Eber Robbins (“Mr Robbins”).
Applicant’s Claim
Robko is a trading corporation that carries on business in the building and construction industry. Mr Robbins is the sole Director of Robko and was responsible for the management and overseeing of the company.
The applicant claims that Robko committed contraventions of subs.44(1) and s.358 of the Fair Work Act 2009 (Cth) (“the Act”) in connection with the termination of the employment of one of its employees, Rebecca Lorraine Simmons (“Ms Simmons”), and that Mr Robbins was “involved in” those contraventions within the meaning of s.550 of the Act.
The contraventions alleged to have been committed by Robko are as follows:
a)Robko contravened s.358[1] of the Act in that a reason for dismissing Ms Simmons from her position as an employee of Robko was in order to engage her as an independent contractor to perform work that was the same, or substantially the same, as the particular work she had performed for Robko as an employee (“the prohibited reason”); and,
b)Robko contravened s.44(1) of the Act in that, before dismissing Ms Simmons, it failed to give her one weeks’ notice of termination or, alternatively one weeks’ pay in lieu of notice, as is required by s.117 of the Act, and instead gave her one days’ pay in lieu of notice.
[1] Section 358 of the Act comes under the heading “Sham arrangements”.
The applicant relies on s.361 of the Act which is in the following terms:
“361 Reasons for action to be presumed unless proved otherwise
(1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2)Subsection (1) does not apply in relation to orders for an interim injunction.”
The applicant submits that as a result of s.361 the onus is on the respondents to prove, on the balance of probabilities, that the dismissal or threat to dismiss was not taken for the prohibited reason identified in s.358.
The respondents do not argue that s.361 does not have the consequences suggested by the applicant.
Respondents’ response
The respondents deny that there has been any contravention by the first respondent or, alternatively, if a contravention by the first respondent is found to exist, that the second respondent was not involved in the contravention within the meaning of s.550 of the Act.
In relation to the first respondent’s alleged contravention of s.358, the respondents say that the reasons why Ms Simmons was dismissed did not include the prohibited reason.
In relation to the first respondent’s alleged contravention of s.44(1) of the Act, the respondents say there was no contravention. They say that Ms Simmons was engaged as a daily hire employee within the meaning of the Building and Construction Industry General Onsite Award 2010 (“the Building Award”) and was therefore paid only one days wage in lieu of notice as the Building Award required. They argue that, alternatively, Ms Simmons was summarily dismissed as she refused to obey a reasonable and lawful direction and was therefore guilty of serious misconduct.
Legislation relevant to the contraventions
Section 358 of the Act provides as follows:
“358 Dismissing to engage as independent contractor
An employer must not dismiss, or threaten to dismiss, an individual who:
(a) is an employee of the employer; and
(b) performs particular work for the employer;
in order to engage the individual as an independent contractor to perform the same, or substantially the same, work under a contract for services.
Note: This section is a civil remedy provision (see Part 4‑1).”
Subsection 44(1) of the Act provides as follows:
“44 Contravening the National Employment Standards
(1)An employer must not contravene a provision of the National Employment Standards.
Note: This subsection is a civil remedy provision (see Part 4‑1).”
Section 117 of the Act provides as follows:
“117 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.
Amount of notice or payment in lieu of notice
(2)The employer must not terminate the employee’s employment unless:
(a) the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or
(b) the employer has paid to the employee (or to another person on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.
(3)Work out the minimum period of notice as follows:
(a) first, work out the period using the following table:
Period Employee’s period of continuous service with the employer at the end of the day the notice is given Period 1 Not more than 1 year 1 week 2 More than 1 year but not more than 3 years 2 weeks 3 More than 3 years but not more than 5 years 3 weeks 4 More than 5 years 4 weeks (b) then increase the period by 1 week if the employee is over 45 years old and has completed at least 2 years of continuous service with the employer at the end of the day the notice is given.”
Section 117 forms part of the National Employment Standards being the standards that are the minimum standards applying to employment of employees as provided for in Part 2-2 of the Act.
Standard of proof
The standard of proof required in determination of civil remedy provisions such as those that are raised in this case, namely s.358 and s.44(1) of the Act, has been addressed, albeit in relation to different legislation, in the relatively recent case of Fair Work Ombudsman v Maclean Bay Pty Ltd[2] in which Marshall J said:
[2] (2012) 200 FCR 57 per Marshall J; recently cited with approval by McKerracher Jin Fair Work Ombudsman v Quest South Perth Holdings P/L (No 2) [2013] FCA 582.
“7.In examining each aspect of this proceeding the Court proceeds on the basis that it is dealing with a civil proceeding in which civil penalties are sought for contraventions of provisions of the WR Act and of the NAPSA. In accordance with s140 of the Evidence Act 1995 (Cth) the applicant is required to make out his case on the balance of probabilities. In deciding whether the Court is satisfied that any aspect of the applicant’s case is made out on the balance of probabilities the Court will take into account the nature of each cause of action and the defence to it. It will also take into account the nature of the subject matter of each aspect of the proceeding and the gravity of the matters alleged; see s140(2) of the Evidence Act.
8.For reasons which follow, I am satisfied that all the allegations made by the applicant against the respondents are made out on the evidence before the Court. Apart from those alleging breaches of the NAPSA, the allegations are particularly serious ones. Nonetheless, the evidence in support of each such contravention is strong and in many aspects uncontradicted. This approach is consistent with that approved of by the Full Court in Qantas Airways Ltd v Gama (2008) 167 FCR 537; see at [110] where French and Jacobson JJ said:
“The so-called Briginshaw test does not create any third standard of proof between the civil and the criminal. The standard of proof remains the same, that is proof on the balance of probabilities. The degree of satisfaction that is required in determining that that standard has been discharged may vary according to the seriousness of the allegations of misconduct that are made. In our opinion, however, there was no indication in his Honour’s reasons that the application of the Briginshaw test made any difference, adverse to Mr Gama, in his conclusions. We agree generally with what her Honour Branson J has to say about the Briginshaw test in her separate reasons for judgment. We would add that the observations of the New South Wales Court of Appeal in Amalgamated TV Services Pty Ltd v Marsden [2002] NSWCA 419 at [54]-[61], concerning the application of s140(2)(c) of the Evidence Act are consistent with her Honour/s reasons.”
See also at [139] where Branson J said:
“As I have already indicated, I agree with the conclusion of French and Jacobson JJ that the federal magistrate’s reasons for judgment do not disclose any error in the application of the applicable standard of proof to Mr Gama’s allegations. However, in my view, for the reasons given above, references to, for example, ‘the Briginshaw standard’ or ‘the onerous Briginshaw test’ and, in that context, to racial discrimination being a serious matter not lightly to be inferred, have a tendency to lead a trier of facts into error. The correct approach to the standard of proof in a civil proceeding is that for which s140 of the Evidence Act provides. It is an approach which recognises, adopting the language of the High Court in Neat Holdings 67 ALJR 170; 110 ALR 449, that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved – and, I would add, the circumstances in which it is sought to be proved. (emphasis added)”
I also take into account s.140 of the Evidence Act 1995 (Cth) which states:
“s.140
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceeding; and
(c)the gravity of the matters alleged.”
Evidence
The applicant relied on the following affidavits:
1.Affidavit of Rebecca Lorraine Simmons (the complainant employee) sworn on 19 October 2012 and filed on 20 December 2012;
2.Affidavit of James Derrick Mathers (an inspector with the applicant) sworn on 19 December 2012 and filed on 20 December 2012;
3.Further affidavit of James Derrick Mathers sworn on 21 February 2013 and filed on 25 February 2013;
4.Affidavit of Herman Andrew May (a labourer engaged by the respondents to assist Ms Simmons, the excavator operator) affirmed on 18 December 2012 and filed on 20 December 2012;
The respondent relied on the following affidavits:
1.Affidavit of Everette Gale Eber Robbins (Managing Director of Robko) affirmed on 5 February 2013 and filed on 6 February 2013;
2.Affidavit of Karen Freda Robbins (Managing Director’s wife and Office Manager) affirmed on 5 February 2013 and filed on 6 February 2013;
3.Affidavit of Reuben Dean Cheney (Form worker/leading hand) affirmed on 5 February 2013 and filed 6 February 2013; and
4.Affidavit of Paul Watson Granger (Estimator) affirmed on 5 February 2013 and filed on 6 February 2013.
Assessment of witnesses
The following deponents to affidavits were made available for cross-examination:
a.Rebecca Lorraine Simmons;
b.Herman Raymond May;
c.James Mathers;
d.Everette Gale Eber Robbins;
e.Karen Freda Robbins;
f.Paul Watson Granger; and
g.Rueben Dean Chaney.
Ms Simmons gave credible evidence in a confident and helpful manner. She does not stand to benefit financially from the litigation other than the unpaid pay in lieu of notice if the applicant is successful in the s.44(1) contravention aspect of the proceedings. She was cross-examined closely by counsel for the respondents in relation to numerous matters, including whether she held a grudge against Robko, but the cross-examination failed to sway me from my preliminary view that she was a reliable witness who was telling the truth.
Mr Mathers was employed by the applicant as an inspector. He conducted a voluntary record of interview of the second respondent, Mr Robbins. He also carried out investigatory duties in relation to the matter generally, including obtaining documents from Robko and obtaining phone records from service providers. I accept the evidence of Mr Mathers as truthful.
Somewhat surprisingly, Mr May’s evidence-in-chief was not challenged in cross-examination. Counsel for the respondent had some short questions on the topic of the length of time that Mr May worked at Robko. I accept Mr May’s evidence as true and accurate.
Mr Robbins was far too keen to advance the core points of his case at every opportunity rather than directly answering the questions. Whilst observing him in the witness box, I formed the view that he was willing to modify his evidence to accommodate new facts that were put to him in cross-examination. On this basis, I formed the view that his evidence needed to be closely considered before relying on it for a finding of fact.
Mrs Robbins admitted that she had a very limited memory of events but said that she could remember some things. As with Mr Robbins, Mrs Robbins demonstrated that she had a keen interest in the outcome of the litigation that affected her answers.
Mr Granger’s evidence is, by his own admission, unreliable. He admitted that he had a very hazy recollection of the events. I appreciated his frankness and take into account the unreliability of his evidence.
Mr Cheney was called by the respondents. He was a form worker and foreman who had worked for Robko for about three years. He conceded in cross-examination that Ms Simmons would do work other than excavating work but seemed determined to get the message across that Ms Simmons did not like doing work other than excavating. He also complained that she was not “versatile”. I formed the impression that Mr Cheney, perhaps subconsciously, was saying what he could to help his employer’s case. I otherwise formed a favourable view of Mr Cheney.
Respondent’s alleged reasons for Ms Simmons’ dismissal
According to counsel for the respondents, the respondents’ case is that the sole reasons that Robko dismissed Ms Simmons were twofold:
a)Robko did not have sufficient excavator operator work to offer Ms Simmons work on a daily basis; and
b)Ms Simmons had refused to perform other duties, such as labouring.
The respondents deny that a reason for dismissal of Ms Simmons was in order to engage her as an independent contractor to perform the same, or substantially the same, work that she had been performing under her contract for services.
Mr Robbins gave evidence in his trial affidavit of the circumstances that gave rise to his reasons for dismissing Ms Simmons on the 22 February 2011. The evidence is given under the heading, “The Last Straw”. Mr Robbins had this to say:
“27. One day, which by reference to Ms Simmons’ timesheets I believe to be the evening of 6 February 2011, I called Ms Simmons as was customary and provided with instruction about where to go and what to do for the day. By reference to the timesheets, I instructed her to go to Happy Valley to clean-up the spoil on the tennis courts and then to proceed to the Mawson Lakes site with the big flat-bed truck and help load up the formwork materials and clean up the site.
28.The following day, I received a phone call from Rueben Cheney, who provides Foreman service to Robko, stating to the effect that Ms Simmons was “standing around and wouldn’t get in and clean up with everybody else”. At this time, Mr Cheney told me that she stated to the effect “I’m an excavator operator and not a labourer” and that she was standing around refusing to work. Mr Cheney’s comment to me was “you need to do something about it”.
29.That evening, I directed Ms Simmons to come to bring the formwork back to the yard and unload it.
30.On the morning of 8 February 2011, Mr Cheney and another person, whose name I don’t recall, were in the yard removing the form work from the truck. I observed Ms Simmons standing there while Mr Cheney and his helper unloaded the truck. She made no effort to help them.
31.After observing this off and on for around half an hour, I walked into the office and said to Mr Peters “go and have a look” and told him to the effect “we won’t have enough work to be able to keep someone full-time as an excavator operator as we wanted to, she’s refusing to do other works so let’s put an ad in the paper for an excavator operator and let her go”.
32.Sometime in the next few days I spoke with Mr Peters and said to him “you need to call the Master Builders’ Association and find out what we need to write on the letter”. During my time at Ballestrin, I understood that it was important to take advice on matters such as this as I was aware that there were many things that could go wrong. At Ballestrin, we had used the Master Builders Association for these purposes and when I commenced Robko, we joined as members.
33.I recall speaking with Mr Peters about his discussions with the Master Builders’ Association on at least three further occasions. On the first occasion, I recall Mr Peters saying that he had called Master Builders but could not find the relevant person to talk to. I subsequently called and spoke to somebody at the Master Builders to find out who Mr Peters should contact. I subsequently instructed Mr Peters to call Master Builders and speak to Tom at the Master Builders.
34.At some stage in the week leading up to Ms Simmons’ termination, Mr Peters approached me and said to the effect that he had “contacted the Master Builders” and he “was in the process of writing the letter”.
35.During her engagement, Ms Simmons had improved her skill level and I told him to the effect “she’s a good operator and we’ve now trained her to do the work the way we like it done, if she doesn’t want to do everything, then see if she wants to become a subcontractor. She can do our excavation work whenever we have the work available”.
36.Mr Peters then drafted a letter which he signed and gave to Ms Simmons. I do not recall seeing the letter before it was sent but if it was given to me I wouldn’t have put a lot of thought into it because I was of the understanding that he was speaking with the Master Builders Association and that the letter would have been reviewed by them before being finalised.”
Findings
Robko commenced trading in early 2010.
During 2010 Mr Robbins engaged a number of other employees for Robko prior to engaging Ms Simmons. At the time that he engaged Ms Simmons, in early November 2010, Robko had four employees: two worked in the office and the other two worked as concreters. In addition, Robko utilised the services of independent contractors as the demands of work required.
In early November 2010, Mr Robbins placed an advertisement in the local newspaper seeking, on Robko’s behalf, expressions of interest for the position of excavator operator. Soon afterwards, Ms Simmons, who had held a permit to operate such machinery since 2007, responded to the advertisement by ringing Mr Robbins. During the telephone conversation Mr Robbins told Ms Simmons that Robko had purchased an excavator from Queensland which was due to arrive within a week or two and that Robko had decided to start digging their own footings on its projects rather than using contractors. Mr Robbins did not express any concern when Ms Simmons told him that although she had experience in operating an excavator, she had no experience in digging footings.
During this telephone conversation, it was mentioned that if Ms Simmons joined Robko she would be employed on a full-time basis and would be paid at the rate of $30 per hour plus penalty rates. Ms Simmons explained to Mr Robbins that she wanted the security of a full-time job as she had a family to support. Ms Simmons gave Mr Robbins details of her referees and the parties agreed to meet later in the day to continue their discussions.
At the meeting later the same day Mr Robbins repeated his offer for Robko to employ Ms Simmons as an excavator operator on a full-time basis with a pay rate of $30 per hour for a 38 hour week plus penalty rates. Ms Simmons accepted the offer. At some stage in the conversation, Mr Robbins raised the possibility of Ms Simmons being engaged as an independent contractor but Ms Simmons rejected that proposal saying that she “needed regular work”.
The start date for Ms Simmons was agreed to be on or about 11 November 2010. Significantly, during their conversation, Mr Robbins said nothing about the possibility that there might be occasions when there would be no excavation work and that she might have to perform other duties.
I find that Robko was the employer of Ms Simmons and that her employment commenced on or about 11 November 2010.
I reject the respondents’ suggestion that Ms Simmons was engaged as a daily hire employee. I find that she was employed as a full-time weekly hire employee as that type of employment is understood under the applicable award, namely, the Building and Construction General On-site Award 2010 (“the Award”). The Award defines such a full-time employee as one who works an average of 38 ordinary hours per week.
Ms Simmons was employed by Robko to perform ‘particular work’. The particular work that she was required to perform was that of excavator operator.
In addition to buying the excavator and employing Ms Simmons on a full-time basis in late 2010, Mr Robbins also decided to buy a pump to be used for pumping liquid concrete. In mid-December 2010, Mr Robbins also had Robko employ David Peters (“Mr Peters”) with the intention that he would provide business development services for Robko.
As part of her role as excavator operator Ms Simmons was required to drive a flat-bed truck which carried the excavator. Mr Robbins and Ms Simmons agreed that these vehicles would be stored at Ms Simmons’ home overnight. Each work day Ms Simmons was required to transport the truck and excavator to the various job sites at which she would be working and at the end of the day to return them to her home.
There were occasions in early 2011 when Mr Robbins told Ms Simmons that there was no excavation work for her to do. He referred to these occasions as being “between jobs”. He told Ms Simmons on these occasions that she should take some annual leave. As a result Ms Simmons took annual leave on 1, 2 and 4 February 2011. As Ms Simmons had not been working for Robko for very long she had very little annual leave due to her. She soon ran out of annual leave. It is reasonable to assume that this put Mr Robbins under some pressure as Robko was required to pay Ms Simmons her regular wage whether there was excavation work to carry out or not. Ms Simmons remembers one occasion when there was no excavating work to be done and she had no accrued annual leave due. On contacting Mr Robbins he informed her that she should take the leave for which he would pay her and that this would put her annual leave into arrears. I assume this to mean that Ms Simmons was getting an advance on her annual leave.
I accept Ms Simmons evidence that on some occasions when Mr Robbins had indicated that there was no excavation work for her to do, she asked Mr Robbins whether there was any other non-excavator work that needed to be completed since Robko would have to pay her anyway. She says that Mr Robbins responded saying that he did not have any other work for her to do and that he required instead that she take annual leave.
In late February 2011, Ms Simmons indicated to Mr Robbins that she would be taking carers leave so that she could care for her young son who was required to undergo surgery.
On 22 February 2011, the day before the operation was to take place, Mr Peters indicated to Ms Simmons whilst they were working at a construction site, that he wished to have a discussion with her later in the day. Late in the afternoon, Mr Peters met with Ms Simmons and immediately handed her a twelve page document on Robko letterhead titled, “Contract for Services”. He also handed her a covering letter also on Robko letterhead. It is helpful to have the full text of this letter included in these reasons. The letter was in the following terms:
“22 February 2011
Rebecca Simmons
Milne Road Redwood Park SA 5097Rebecca,
As discussed again today, Robko does not have enough work to keep you employed as a full time employee. Over the past few months, we have tried to keep you employed on a full time basis, however it has become evident that this is not a tenable position for the Company. There is just not enough work to keep on a full time employee.
Robko are pleased with the work which you have performed and your eagerness to do a good job, and learn.
As pointed out before, you need to continue to be aware of the whole job and highlight the plans to avoid the mistakes of missing some parts and having to go back to finish digging, such as Parkside Ambulance Centre and Willunga School.
We would like to continue to utilise your labour, however, it would have to be on a sub-contractor basis, working on an ABN, as from Monday 28th February.
If you accept being a sub-contractor we will make every effort to give you 40 hours per week. However as you are aware this can vary, depending on excavation required.
If you do accept to work as a sub-contractor, Robko would pay you $35 p.h. which includes super.
If you were willing to incorporate a Company for about $450 on line, Robko would pay the Company $40 p.h.
As previously discussed, Robko are trying to expand, and if it’s (sic) goals are attained there will be lots of opportunities and we would like you to be part of that, but for the time being, it would need to be on an ABN or preferably as an incorporated Company.
We appreciate your willingness to get stuck in there and do the job and ask you to consider this offer favourably. Please call either David on 0401242803 or Everette on 0421372583 by Wednesday 23rd to inform the Company of your decision.
Kind Regards
[signature]
David Peters BDM Robko Constructions P/L”
The Contract for Services document given to Ms Simmons by Mr Peters was a standard format Robko contract used by Robko for the engagement of independent contractors of various trades. It had been partially completed in Mr Peter’s handwriting by him inserting Ms Simmons’ name as the contractor and the insertion of the date 22 February 2011. The handwriting also provided that the commencement date would be 28 February 2011 and that the hourly fee payable would be $35 per hour including GST.
Ms Simmons says at the meeting that when Mr Peters provided her with the documents, Mr Peters stated to her that Robko could not continue to employ her on a full-time basis but wanted to employ her as an independent contractor. She says further that there was no suggestion by Mr Peters that the type of work that Ms Simmons would be undertaking as an independent contractor would be any different from the work she had been doing as a full-time employee.
Ms Simmons, who was clearly fully aware of the consequences of a change in her employment status from employee to independent contractor, immediately rejected the offer of work as an independent contractor. She told Mr Peters that she was not interested in working as a subcontractor for Robko as she needed workplace stability and a weekly wage as she had children under 10 years of age. She says Mr Peters then said words to the effect of, “You might have to think about it. You have a day to make a decision.” There was no mention by Mr Peters of casual work.
Later that day Ms Simmons contacted the Fair Work Australia Infoline and obtained advice. She then rang Mr Peters and informed him again that the offer of work as a subcontractor was rejected and that she wanted to remain employed on a full-time basis. Mr Peters immediately responded with the statement, “Then I have been instructed by Everette (Mr Robbins) to give you a days’ notice.” This was the first time that Ms Simmons had been told that termination of employment was even a possibility. Ms Simmons became upset and told Mr Peters that if she was to be dismissed, Robko had to give her a weeks’ notice.
A little later on the night of 22 February 2011 Mr Peters sent a text message to Ms Simmons saying, “Rebecca, sorry you hung up, it is not our intention for you to quit. However, if that’s what you have decided you will be missed. Where will the truck keys be.” Ms Simmons responded with, “I haven’t resigned, you’ve given me a days’ notice.” Later Mr Peters texted back, “You had options to stay but decided to opt out instead you can still work as casual or an ABN.”
Mr Robbins gave evidence that he could not remember reading the letter given to Ms Simmons before it was given to her by Mr Peters. Mr Robbins said that he was not aware that Mr Peters had given Ms Simmons a Contract for Services document at the same time as the letter was given. He says that he had no role in drafting the contract nor did he direct Mr Peters to give it to her. Mr Robbins says that as part of the termination, he instructed Mr Peters to give her one days’ notice to Ms Simmons. Mr Robbins says that he believed that Ms Simmons was engaged on a daily hire basis and that therefore only one days’ notice was required.
I find it surprising that Mr Robbins’ evidence is that he could not remember reading the letter of 22 February 2011 before Mr Peters gave it to her. In his affidavit evidence he does however say, “I told Mr Peters to go over to (the) site to present the letter to Ms Simmons”. I would have expected Mr Robbins, as owner and sole manager of Robko, to have been intimately involved in the preparation of such an important letter and that he would have remembered reading it.
For reasons that follow, I find that Mr Robbins either read the letter or was aware of its contents before it was, on Mr Robbins’ direction, given to Ms Simmons.
Mr Peters was not called as a witness. It is likely that Mr Peters would have provided important evidence in relation to numerous aspects of this case including the involvement of Mr Robbins in the events of 22 February 2011. Mr Peters is a person I would have expected the respondents to have called as their witness. No satisfactory explanation has been provided by the respondents. As they did not do so, I infer that the respondents believed that Mr Peters’ evidence would not have assisted their case.[3]
[3] Jones v Dunkel (1959) 101 CLR 298.
Mr Robbins also says that he was not aware that Mr Peters had given Ms Simmons the Contract for Services document. He says he had “… no role in drafting it, nor did (he) direct Mr Peters to do so.” Mr Robbins admitted in his interview with Mr Mathers on 17 May 2011 that he instructed Mr Peters to “… see if he could get (Ms Simmons) to be a subcontractor because she does really good work …”.
On 23 February 2011, the day after her dismissal, Ms Simmons rang Mr Robbins to find out what was happening at work. Mr Robbins said there was not enough work to keep her employed on a full-time basis. Ms Simmons challenged this statement as she believed that Robko had jobs that it had won and that work was picking up generally after the slowdown for the Christmas break. Mr Robbins then said words to the effect that he did not want her to go but that it was “an ABN or nothing”. A little later in the conversation, Mr Robbins said that he was making Ms Simmons redundant with only a days’ notice so he could employ somebody under an ABN.
Prior to having her employment terminated, neither Mr Robbins nor Mr Peters raised any issue with Ms Simmons in relation to the quality of her work performance. In particular, they never raised any issue of her having made mistakes on job sites, nor did they raise any issue of her being unwilling to undertake duties in addition to the excavation work. In fact, Mr Robbins and Mr Peters were highly complementary of Ms Simmons’ work in the letter of dismissal of 22 February 2011, saying they were pleased with her work and eagerness to do a good job and to learn.
Further, prior to 22 February 2011, neither Mr Robbins nor Mr Peters raised any issue with Ms Simmons of there not being enough work to keep her employed on a full-time basis. The first time that she became aware of these issues was on 22 February 2011 when she read the letter that Mr Peters had given her.
In an attempt to strengthen the respondents’ case, Mr Robbins gave evidence[4] of an occasion that he says showed that Ms Simmons was unwilling to do work other than excavating work, or was not complying with reasonable directions of her employer. In my view, the story is not credible. That evidence is to be found at paragraph 30 of these reasons.
[4] To be found at paragraph 30 of these reasons.
It is to be noted that it is Mr Robbins’ evidence that he neither gave assistance nor instructed Ms Simmons to give assistance. It is Mr Robbins’ further evidence that after half an hour, he walked to the office and spoke about the matter to Mr Peters, saying words to the effect, “We don’t have enough work to be able to keep someone full-time as an excavator operator as we wanted to, she’s refusing to do other works, so let’s put an ad in the paper for an excavator operator and let her go.”
This evidence from Mr Robbins is in my view, either a figment of his imagination, or an embellishment of an occasion that happened. It is evidence from which Mr Robbins asks the Court to infer that Ms Simmons was refusing to perform work other than excavation work.
Mr Robbins does not say that he requested Ms Simmons to assist the two men to unload the truck. He does not say that the two men needed any assistance. He does not say why he did not give assistance himself. He cannot give the names of the two men doing the unloading. He has not called those two men as witnesses nor explained why they were not called. He has not called Mr Peters to corroborate that the event that he says occurred.
The conversation that Mr Robbins says he had with Mr Peters is not credible. In it he criticises Ms Simmons for refusing to do other works (that is work other than excavating) but gives no evidence that the refusal occurred. If Mr Robbins had directed Ms Simmons to assist with the unloading of the truck on this occasion, and she refused to do so, I would expect him to have remembered this and to have given evidence to that effect.
In cross-examination Mr Robbins admitted that although he spoke to Ms Simmons on the phone each night, never once did he raise the complaint with her. Given that he otherwise found Ms Simmons a good worker, it is not credible that he would not say anything to her about the complaint. This is particularly so as Mr Robbins says that the issue was one which put her full-time employment with Robko at risk.
Mr Robbins’ allegations concerning Ms Simmons’ unwillingness to assist fellow workers where she could, or should, is in marked contrast with the evidence of Mr May as detailed earlier in these reasons. I accept the evidence of Mr May on this topic.
Mr Robbins’ evidence is also in marked contrast with the positive comments made in relation to Ms Simmons’ work in the letter of dismissal dated 22 February 2011. In addition it is hard to understand why, on the one hand, Mr Robbins wants Ms Simmons to work for Robko as an excavator, and on the other, says that she is refusing to do other work and should be dismissed.
I accept Ms Simmons’ evidence that at some time prior to her dismissal she had a discussion with Mr Robbins in which he informed her that Robko had won a number of new contracts, including a job at Birdwood High School. He also said that Robko had a few weeks work on a large job at Smart Road, Modbury.
I also accept Ms Simmons’ evidence that at the time of her dismissal, she was working on various job sites that would have kept her occupied for a number of weeks.
The applicant called Mr Herman May as a witness. In January 2011 Robko employed Mr May on an independent contractor basis. Mr May was able to say by reference to his “white card”, a card that was provided to him after satisfactory completion of a safety training course at the Master Builders Association, that he commenced work at Robko on 14 January 2011. He worked off and on at least until 28 February 2011.
Mr May was employed to work as a labourer working exclusively with Ms Simmons as required. This turned out to be for five or six days, over a three or four week period. Mr May gave evidence that he and Ms Simmons had a good working relationship. On his first day Ms Simmons advised Mr May that she would be operating the excavator and he would be required to clear the dirt from the trenches and to ensure that the trenches were of the correct depth.
Mr May gave evidence that as part of her duties Ms Simmons would sometimes leave a site to collect plant and equipment for the next day. He said that Ms Simmons spent most of her time on the excavator but on occasions, when necessary, would help him out on the ground with tidying up. He considered her to be an “excellent worker”. In relation to his conversations with Mr Robbins and Mr Peters during his time with Robko, Mr May said that there was never any issue raised by either of them about the quality of Ms Simmons’ work.
I do not accept that Ms Simmons was dismissed for the reasons suggested by counsel for the respondents as outlined earlier in these reasons. Robko had excavator work to be done and Ms Simmons was a good excavator operator. I also do not accept that Ms Simmons was refusing to perform other duties.
I find that these two alleged reasons were manufactured by Mr Robbins to try to justify his behaviour that ultimately led to the dismissal of Ms Simmons. However, whether or not these two reasons existed, the evidence overwhelmingly supports a conclusion that a reason why Ms Simmons was dismissed was because Mr Robbins wanted to have Ms Simmons doing the same work for Robko but as an independent contractor.
I find that Mr Robbins, on behalf of Robko, was doing exactly what s.358 of the Act was designed to prevent.
Mr Robbins was pleased with Ms Simmons’ work. He wanted to continue to have her working for Robko but wanted her to be on a contract basis as were Mr Peters and Mr May. Mr Robbins wanted Ms Simmons to be an independent contractor so that he only had to pay for the periods of time when Ms Simmons was actually working.
Mr Robbins instructed Mr Peters to perform the unpleasant task of threatening Ms Simmons with dismissal and, when that did not result in Ms Simmons agreeing to become an independent contractor, then dismissing Ms Simmons, again, with the purpose of having her engaged by Robko as an independent contractor to carry out the work that she had previously been carrying out as an employee.
The letter to Ms Simmons of 22 February 2011 makes it clear to Ms Simmons that if she did not agree to be a subcontractor to Robko, she would be dismissed. This threat of dismissal was made in combination with a proposal that Ms Simmons have an independent contractor relationship with Robko.
Mr Peters gave Ms Simmons a copy of the contract to be entered into. There is no suggestion in the letter that the work that Ms Simmons would be performing pursuant to the contract would be any different than Ms Simmons had been performing as an employee.
I am satisfied that Mr Robbins, and Mr Robbins alone, made the decision to dismiss Ms Simmons and that he did so on behalf of Robko. Although Mr Peters was heavily involved in the events surrounding the dismissal, it would not have happened without Mr Robbins’ instructions to Mr Peters. The evidence does not support a finding that Mr Peters had any authority to decide whether Ms Simmons’ employment would be terminated.
The respondents have not provided credible evidence that rebuts the presumption contained in s.361 of the Act that the purpose of the first respondent’s actions was the unlawful purpose.
The fact that the respondents’ unlawful purpose was not ultimately achieved (ie Ms Simmons did not enter into an independent contract with Robko) does not need to be established for the case against Robko to be made out.
For the reasons given earlier in these reasons, I find that Robko contravened s.358 of the Act and that the second respondent was, pursuant to s.550 of the Act, a person who was involved in the first respondent’s contravention. He was the owner and operator of the corporate first respondent and as such, by his acts directly or indirectly was knowingly concerned in, or party to, the first respondent’s contravention.
I turn to the alleged contravention of s.44(1) of the Act by Robko. It is not disputed that Ms Simmons was dismissed with one days' payment in lieu of notice. Pursuant to the National Employment Standards and in particular, s.117 of the Act, Ms Simmons was entitled to one weeks’ notice or one weeks’ pay in lieu of notice.
I find that the first respondent contravened s.44(1) of the Act in that upon dismissing Ms Simmons, Robko failed to give one weeks’ notice or one weeks’ pay in lieu of notice as required by s.117 of the Act. I find also that the second respondent was, pursuant to s.550(2) of the Act, knowingly concerned in the contravention of s.44(1).
There are therefore four contraventions found proven: two by the first respondent and two by the second respondent.
It was agreed before the commencement of the trial that the Court would first make findings on the matter of liability and that if contraventions were found, that there would be a penalty hearing to hear submissions to be put by the parties as to what penalties and other orders ought to be made.
I make the orders to be found at the beginning of these reasons. This remains a part-heard proceeding in the absence of the determination of what penalties, if any, should be imposed on the respondents, and what compensatory or other orders, if any, should be made.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Simpson
Associate:
Date: 3 October 2014
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