Timothy Matthews v Bulhari Holdings Pty Ltd T/A the Freemasons Hotel

[2018] FWC 6857

[2018] FWC 6857 [Note: An appeal pursuant to s.604 (C2018/6850) was lodged against this decision and the order arising from this decision. - refer to Full Bench decision dated 31 January 2019 [[2019] FWCFB 467] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Timothy Matthews
v
Bulhari Holdings Pty Ltd T/A The Freemasons Hotel
(U2018/1509)

COMMISSIONER CRIBB MELBOURNE, 15 NOVEMBER 2018

Application for an unfair dismissal remedy - jurisdiction - small business employer - minimum employment period.

[1] Mr Timothy Matthews (the Applicant) has made an application for an unfair dismissal remedy in relation to his dismissal by Bulhari Holdings Pty Ltd T/A The Freemasons Hotel (the Respondent, The Freemasons, the Hotel). The application was made under section 394 of the Fair Work Act 2009 (the Act).

[2] The Hotel made two jurisdictional objections to the application. These were that the application was lodged out of time and that the Hotel was a small business employer and so Mr Matthews did not meet the minimum employment period.

[3] A determinative conference was held by videoconference on 15 June 2018 to determine the Hotel’s jurisdictional objections. Mr Matthews represented himself whilst the Respondent was represented by Ms Georgia Lewis, Managing Director of Bulhari Holdings Pty Ltd T/A The Freemasons Hotel.

Late lodgement of application

[4] The first jurisdictional objection dealt with was that the application had been lodged outside the statutory time period. During the determinative conference, following evidence from Mr Matthews and Ms Lewis, the Commission made a finding that the dismissal took effect on 5 February 2018. This was on the basis that Mr Matthews’ dismissal was communicated to him on that date, which was the date on which Mr Matthews first became aware that he was no longer employed by the Hotel.

[5] As the application was lodged on 14 February 2018, the Commission found that it had been lodged within time. 1 Therefore, the Respondent’s jurisdictional objection, in relation to late lodgement of the application, was dismissed.2

Small business employer/minimum employment period

[6] The second jurisdictional objection by the Respondent was in regard to the contention that Mr Matthews did not meet the minimum employment period of one year. This was on the grounds that the Hotel was a small business employer.

[7] Ahead of the determinative conference, both parties had provided lists of employees. The Respondent’s list contained employees as at 9 January 2018. During the determinative conference, the Commission took both parties through their respective list of names. As the Respondent’s list contained employees as at 9 January 2018 and not as at the date of dismissal, Ms Lewis undertook to provide an updated list of employees. In addition, as it was unclear as to the pattern of work of the casual employees, Ms Lewis was to provide the pay records of the casual employees. 3 Mr Matthews was given the right to respond to the Respondent’s material and to request that his witnesses give evidence.4 The Commission indicated that, if possible, the Commission would make a decision on the papers.5

[8] The Respondent provided further submissions, together with copies of payslips on 25 June 2018 date. Mr Matthews provided submissions in response by email on 2 July 2018. On 1 November 2018, the Commission wrote to the parties requesting further information in relation to the bookkeeper (BC). Ms Lewis provided additional information by email on 1 November 2018. Mr Matthews responded on 13 November 2018.

[9] This decision, therefore, determines the second of the Respondent’s jurisdictional objections – whether the employer was a small business employer, as at 5 February 2018, and therefore whether Mr Matthews met the minimum employment requirements.

Legislative framework

[10] To be protected from unfair dismissal, Mr Matthews must have completed the minimum employment period. 6 Section 383 of the Act states:

“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.”

[11] Section 23 of the Act sets out the meaning of small business employer in the following terms:

“23 Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated; and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”

[12] In its submissions, the Respondent acknowledged that there were five permanent part-time employees and four regular and systematic casual employees (a total of 9) employed as at 5 February 2018. 7

[13] The Hotel:

•  Disputed that Mr Matthews, ED and KC met the requisite definition of a casual employee.

•  Stated that LW and TNN had full-time employment outside The Freemasons.

•  Stated that two casual staff (IW and HP) had just commenced employment.

•  Argued that the bookkeeper (BC) was not an employee as invoices were provided to the Respondent for her services and that the bookkeeper provided services to other clients in addition to the Hotel. 8

•  Further information was provided by BC that she had never been an employee of Bulhari and had always been a consultant through Virtual Accounts Online. 9

[14] On the other hand, Mr Matthews submitted argued that, in addition to the conceded nine employees, there were an additional eight employees, seven of which were employees who met the definition of a casual employee. The eighth employee was said to have been the bookkeeper who was also filling the position of General Manager (Monday – Friday) every week. Therefore, Mr Matthews contended that, at the time of his dismissal, the Hotel employed 17 employees (both ongoing and regular and systematic casuals).

[15] Accordingly, the Commission will assess each of the disputed eight employees to determine whether or not they should be counted for the purpose of determining whether the Respondent is a small business employer.

Mr Matthews

[16] The Freemasons argued that Mr Matthews was a full-time student and that Mr Matthews only worked when his availability and the work offered coincided. The Hotel noted that, in the period leading up to Christmas, Mr Matthews had made himself more available and so took other casual employees’ shifts. 10

[17] For Mr Matthews’ part, it was submitted that he was in regular employment at the Hotel before leaving on unpaid leave over the holidays. Mr Matthews stated that he would be classified as a regular and systematic casual employee as he worked consistently every week. 11

[18] The payslips provided by the Hotel show that Mr Matthews worked the following:

•  Pay period ending 8/10/17 - 28 hours

•  pay period ending 16/10/17 - 21.25 hours

•  pay period ending 22/10/17 - 20.5 hours

•  pay period ending 29/10/17 - 20.25 hours

•  pay period ending 5/11/17 - 20.25 hours

•  pay period ending 12/11/17 - 26 hours

•  pay period ending 19/11/17 - 23.5 hours

•  pay period ending 26/11/17 - 26 hours

•  pay period ending 3/12/17 - 33 hours

•  pay period ending 10/12/17 - 36 hours

•  pay period ending 17/12/17 - 32.5 hours

•  pay period ending 24/12/17 - 34.98 hours.

[19] Prior to Mr Matthews going on a holiday from 23 December 2017 to 10 January 2018, Mr Matthews worked at least two shifts a week with one of those shifts being on a weekend except for two weeks out of the twelve weeks. Therefore, on the basis of Mr Matthews’ pattern of work, I am satisfied that Mr Matthews worked on a regular and systematic basis as a casual employee. He will be included in the number of employees as at 5 February 2018.

ZD

[20] It was contended by The Freemasons that ZD was a school student and that his shifts were ad hoc, variable and contingent on whether other casual employees were working. The Hotel stated that ZD worked in the first week and then in the fourth and fifth weeks in October 2017 and only one week in November 2017. It was also said that, in December 2017, ZD worked regularly whilst in January 2017, ZD worked four weeks with varying hours. The Hotel argued that ZD’s hours were consistent with school holidays and no sporting obligations.

[21] On the other hand, Mr Matthews submitted that ZD started working irregularly prior to January 2018 but became consistent in January 2018.

[22] On the basis of the payslips provided by the Hotel, ZD worked as follows:

•  pay period ending 29/10/17 - 12.5 hours

•  pay period ending 5/11/17 - 6.58 hours

•  pay period ending 12/11/17 - 8 hours

•  pay period ending 10/12/17 - 8.67 hours

•  pay period ending 17/12/17 - 6 hours

•  pay period ending 24/12/17 - 7.5 hours

•  pay period ending 7/1/18 - 19.63 hours

•  pay period ending 14/1/18 - 13.98 hours

•  pay period ending 21/1/18 - 18.92 hours

•  pay period ending 28/1/18 - 13.37 hours

•  pay period ending 4/2/18 - 14.64 hours

•  pay period ending 11/2/18 - 15.23 hours

[23] Taking into account ZD’s work pattern, on balance, I am not satisfied that KD’s work was on a regular and systematic basis. Although ZD worked at least one shift a week between 23 October 2017 and 11 February 2018 (5 February 2018), ZD did not work every week. ZD worked only one week in October and two weeks in November 2017. Therefore, it is not possible to say that ZD worked on a regular and systematic basis. Accordingly, ZD will not be counted in determining the small business employer issue.

KC

[24] The Respondent contended that, as a school student casual, KC’s hours were based on the nature of the hours offered and that KC would prioritise her school and other obligations over the work that was offered by The Freemasons.

[25] For his part, Mr Matthews submitted that payslips provided by the Hotel, KC was given regular and systematic shifts and that she worked every week with little variation.

[26] The payslips and other documentation showed that KC worked as follows:

•  pay period ending 8/10/17 - 9.5 hours

•  pay period ending 15/10/17 - 9.42 hours

•  pay period ending 22/10/17 - 9.75 hours

•  pay period ending 29/10/17 - 6.5 hours

•  pay period ending 5/11/17 - 10.25 hours

•  pay period ending 12/11/17 - 9 hours

•  pay period ending 20/11/17 - 9.75 hours

•  pay period ending 26/11/17 - 9.5 hours

•  pay period ending 3/12/17 - 9.5 hours

•  pay period ending 10/12/17 - 10.25 hours

•  pay period ending 17/12/17 - 11.58 hours

•  pay period ending 24/12/17 - 7.4 hours

•  pay period ending 31/12/17 - 5.5 hours

•  pay period ending 7/1/18 - 4.6 hours

•  pay period ending 14/1/18 - 8.37 hours

•  pay period ending 21/1/18 - 5.05 hours

•  pay period ending 28/1/18 - 7.19 hours

•  pay period ending 4/2/18 - 7.23 hours

•  pay period ending 11/2/18 - 8.09 hours

[27] On the basis of the pay information provided, KC worked every week between 2 October 2017 and 11 February 2018 (5 February 2018) and, as a minimum, on Saturday and Sunday each week. Therefore, I am satisfied that KC’s work pattern shows that she worked regularly and systematically. KC will be counted towards determining the small business employer issue.

LW

[28] It was argued by The Freemasons that, as LW had a full-time position elsewhere, that position took priority over her employment as a casual with the Hotel.

[29] On the other hand, Mr Matthews contended that LW worked consistently with the same two shifts each week (Tuesday and Thursday). It was said that the only variation was if there were any additional shifts available.

[30] LW’s pattern of shifts was as follows:

•  pay period ending 8/10/17 - 6.5 hours

•  pay period ending 15/10/17 - 7.5 hours

•  pay period ending 22/10/17 - 3.5 hours

•  pay period ending 12/11/17 - 2.75 hours

•  pay period ending 19/11/17 - 3.75 hours

•  pay period ending 26/11/17 - 2 hours

•  pay period ending 3/12/17 - 6 hours

•  pay period ending 10/12/17 - 6.75 hours

•  pay period ending 17/12/17 - 5 hours

•  pay period ending 24/12/17 - 7 hours

•  pay period ending 31/12/17 - 11.88 hours

•  pay period ending 7/1/18 - 6.05 hours

•  pay period ending 14/1/18 - 8.88 hours

•  pay period ending 21/1/18 - 6.82 hours

•  pay period ending 28/1/18 - 7.45 hours

•  pay period ending 4/2/18 - 5.79 hours

•  pay period ending 11/2/18 - 7.01 hours

[31] Taking into account the payslips provided for LW, I find that LW worked at least one shift every week between 2 October 2017 and 11 February 2018 (5 February 2018). Therefore, I am satisfied that LW worked regularly and systematically as a casual employee. LW will be added to the list of employees to be counted in relation to this issue.

TNN

[32] The Freemasons submitted that TNN preferred to work in his full-time position and that his shifts were therefore ad hoc. It was stated that, in the two weeks prior to Mr Matthews’ dismissal, TNN only worked one shift each week.

[33] Mr Matthews contended that TNN worked the same shifts (Friday and Saturday nights) each week with variations if additional shifts were available.

[34] TNN appears to have worked for three weeks - during the pay period ending 28/1/18 (9.75 hours on Saturday); 8.75 hours the following week (pay period ending 4 February 2018) and 7.75 hours during the pay period ending 11 February 2018 (5 February 2018).

[35] On the basis of TNN’s pattern of work, as TNN only worked for three weeks during the period, I am not satisfied that TNN could be described as a casual employee who worked on a regular and systematic basis.

HP

[36] It was acknowledged by The Freemasons that HP had worked for the five weeks prior to Mr Matthews’ dismissal. This was said to have been due to HP filling in for another employee. The Hotel contended that HP did not have the promise of long term regular hours.

[37] Mr Matthews agreed that HP had worked each week consistently up to the date of his dismissal. Mr Matthews also argued that HP worked past Mr Matthews’ dismissal date.

[38] On the material before me, since HP started employment with the Hotel in the second week of January 2018, he has worked consistently three shifts a week every week including every Saturday and Sunday for a period of 5 weeks from his commencement to the pay period ending 11 February 2018 (5 February 2018). Therefore, I am satisfied that HP’s work as a casual employee, was regular and systematic and so HP will be counted in determining whether the Respondent is, or is not, a small business employer.

IW

[39] The Respondent stated that IW worked 47.3 hours in January 2018 to cover absences. The Hotel was unsure as to what IW’s occupation was.

[40] For his part, Mr Matthews stated that IW had worked in the Bar and that he had worked consistently up to, and beyond, Mr Matthews’ dismissal.

[41] For the pay period ending 14 January 2018, IW worked 8.5 hours; for the pay period ending 21 January 2018, IW worked 16.32 hours; for the pay period ending 28 January 2018 IW worked 11.5 hours; for the pay period for February 2018, IW worked 10.98 hours and for the pay period ending 11 February 2018, IW worked 9.92 hours

[42] It was common ground that IW had worked regularly and consistently from when he commenced working in the second week of January 2018. Therefore, I am satisfied that IW was a casual employee who worked regularly and systematically. IW will be counted in determining the small business employer issue.

Bookkeeper

[43] The Freemasons contended that an external company provided accounting services to it and attached an invoice to this effect from the company concerned. Mr Matthews alleged that the bookkeeper (BC) was also employed by the Respondent as General Manager and that she worked Monday to Friday every week.

[44] In its response to the Commission’s request for further information in relation to this issue, BC indicated clearly in an email that she had never been an employee of Bulhari Holdings Pty Ltd T/A The Freemasons Hotel but was a consultant through the company which invoiced the Respondent for its services. 12

[45] On the other hand, Mr Matthews provided emails from Senior Constable Glenn Wishart and Ms Stacey Bryan in relation to the status of BC’s engagement with The Freemason’s Hotel. SC Wishart stated, in his email, that BC presented to his office/identified herself as the Venue Manager. 13 In her email, Ms Bryan confirmed that BC was hired as a consultant by the Respondent through BC’s company for 10 hours a week. It was stated that, as time went by, BC’s role grew more into a managerial role with BC having the final say on the day-to-day running of the business. Ms Bryan also said that, at the time of Mr Matthews’ dismissal, the Respondent employed more than 15 employees who were regularly employed each week.14

[46] There is conflicting evidence in relation to BC’s role with the Respondent. However, it appears to be common ground that BC was employed as a consultant through her company on the basis of 10 hours a week. The Respondent provided a copy of an invoice to this effect for the period from 29 January 2018 to 4 March 2018. It is noted that BC appears on the rosters provided by The Freemasons on Monday, Tuesday, Thursday and Friday in the weeks starting 5 and 12 February 2018 (which was the last one provided) for 2.5 hours each day. This amounts to a total of 10 hours a week.

[47] BC has stated that she has never been an employee of the Respondent and that she has always been a consultant through her company. Ms Lewis has indicated that she is aware of other clients to whom BC provides services through her company. Ms Bryan confirmed that BC was hired as a consultant by the Respondent for 10 hours a week. Ten hours a week is seemingly what BC was rostered for on the basis of the rosters provided. There is no evidence before the Commission which supports the contention that BC worked more hours than set out in the February 2018 invoice or that BC became an employee prior to Mr Matthews’ dismissal. It is clear that BC was engaged with The Freemason’s Hotel but it would seem to be in the role of a contractor/consultant rather than as an employee.

[48] For BC, as a contractor/consultant to The Freemasons, to be counted, the Commission would have to find that BC was, in reality, not a contractor but actually an employee. This is because, as set out in section 23 above, all employees are to be counted but only those casual employees who have been employed on a regular and systematic basis. Contractors, by definition, are not employees and are therefore not counted. The exception to this is if the contractor is in reality an employee. On the material before me, it is not possible to conclude that it was a ‘sham contracting’ arrangement in relation to BC which renders BC an employee. This is because the evidence points to the Respondent not being the only client to whom BC and her company provided services and BC’s engagement with the Respondent was 10 hours per week rather than 38 hours a week.

[49] Therefore, it is not possible to find otherwise than BC was not an employee as at 5 February 2018. Therefore, BC will not be counted in regards to the small business employer issue.

Considerations and conclusions

[50] On the basis of the findings above, I am satisfied that, in addition to the nine employees identified by the Respondent as counting towards a number of employees employed at the relevant time, there are an additional five casual employees who meet the criteria for being included in the calculations (the Applicant, KC, LW, HP and IW). This comes to a total of 14 employees who were employed as at the date of Mr Matthews’ dismissal.

[51] As the definition of small business employer requires the employment of fewer than 15 employees at the relevant time, I am satisfied that the Respondent was a small business employer at the time of Mr Matthews’ dismissal.

[52] It was Mr Matthews’ evidence that he commenced employment with the Respondent on 6 February 2017 and was dismissed on 5 February 2018. It would appear that Mr Matthews’ employment was one day short of the required one year where the employer is a small business employer. The respondent’s jurisdictional objection is therefore upheld, as Mr Matthews has not met the minimum employment period requirement in order to make an application so as to be protected from unfair dismissal.

[53] Accordingly, Mr Matthews’ application is dismissed. An order 15 to this effect will be issued separately.

Appearances:

T Matthews on his own behalf

G Lewis from the Respondent

Hearing details:

2018.

Melbourne and Perth (determinative conference via video):

June 15.

Final written submissions:

Respondent, 25 June 2018

Applicant, 2 July 2018

Respondent, 1 November 2018

Applicant, 13 November 2018

Printed by authority of the Commonwealth Government Printer

<PR702114>

 1   Transcript PN 84 – 89

 2   Ibid

 3   Ibid PN 277

 4   Ibid

 5   Ibid

 6 See s.382 of the Fair Work Act 2009

 7   Email from the Respondent dated 25 June 2018

 8   Ibid

 9   Email from the Respondent, dated 1 November 2018

 10   Ibid

 11   Email from the Applicant, dated 2 July 2018

 12   Email from the Respondent, dated 1 November 2018

 13   Email from SC Wishart to the Applicant, dated 8 November 2018, which was forwarded to the Commission on 13 November 2018

 14   Email from Stacey Bryan to the Applicant, dated 13 November 2018, which was forwarded to the Commission on 13 November 2018

 15   PR702134