Todd Williams v Leonda Pty Ltd trading as Lush Productions
[2012] FWA 4861
•8 JUNE 2012
[2012] FWA 4861 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Todd Williams
v
Leonda Pty Ltd trading as Lush Productions
(U2012/5011)
COMMISSIONER GOOLEY | MELBOURNE, 8 JUNE 2012 |
Application for unfair dismissal remedy.
[1] Mr Todd Williams filed an unfair dismissal application on 14 February 2012 in which he alleged his employment had been unfairly terminated by his employer Mr Mike Vati of Lush Productions (Lush Productions). He advised that he commenced employment on 1 April 2011 and his employment was terminated on 2 February 2012.
[2] Rincon Rights Pty Ltd (Rincon Rights) filed an employer response to the application. Rincon Rights claimed that Mr Williams had not been dismissed. Mr Vati, the managing director of Rincon Rights, signed the employer response.
[3] Lush Productions, which was the trading name for Leonda Enterprises Pty Ltd (Leonda), advised Fair Work Australia by letter dated 17 April 2012 that it was not the employer of Mr Williams.
[4] The application was listed for a hearing on 11 May 2012 to determine Lush Productions’ jurisdictional objection.
[5] On 7 May 2012 I advised Mr Vati that if it was determined that the true employer was Rincon Rights I would determine at the hearing whether Mr Williams should be given leave to amend his application to properly identify his employer.
[6] On 8 May 2012 Mr Luff on behalf of Mr Vati advised that Rincon Rights had no objection to being named as the employer on the application.
[7] On 9 May 2012 Mr Williams advised that Rincon Rights was not his employer and therefore the jurisdictional objection of Lush Productions was heard on 11 May 2012.
[8] At the hearing Mr Vati appeared for Rincon Rights and Mr Ron Luff appeared for Lush Productions. Mr Williams appeared for himself.
[9] Mr Vati explained that he owns Rincon Rights and has shares in Leonda. Leonda provides management services to Rincon Rights. Rincon Rights is a retail business which employs less than 15 employees. Leonda is a wholesale business which employees more than 15 employees. 1
[10] Mr Vati explained that The M20 Urban Unit Trust trading as Street Machine was the trustee for Rincon Rights. 2
[11] Mr Williams was employed to work in a retail store called Street Machine which is run by Rincon Rights. No employee declaration form was produced. 3
[12] The following documents were tendered to support the claim that Leonda was not Mr Williams’ employer:
- Pay slip for the pay period 1/2/12 to 26/3/12 headed Rincon Rights Pty Ltd t/a Street Machine.
- Pay slip for the pay period 1/1/12 to 31/1/12 headed Rincon Rights Pty Ltd t/a Street Machine.
- PAYG payment summary for Mr Williams with the name of the payee as M20 Urban Unit Trust T/A Street Machine.
[13] Mr Luff gave evidence that that Lush Productions did not employ Mr Williams. 4 In cross examination he explained that Lush Productions provided management services to Street Machine for which it receives payment.5
[14] Mr Vati gave evidence that Mr Williams had never been employed by Lush Productions. 6 He explained that Street Machine is the trading name of three (now two) retail stores.7 The trading name is owned by Rincon Rights.8 The only link between Rincon Rights and Leonda is that he owns a share of Leonda and he also owns Rincon Rights. All their mail goes to the one address and Leonda provides goods and services to Rincon Rights.9
[15] It was his evidence that at the time Mr Williams’ employment was terminated Rincon Rights had eight or nine employees. 10
[16] Leonda, at the same time, had between 14-16 full time employees and a further 2-5 casual employees. 11
[17] Mr Vati’s evidence was not challenged by Mr Williams. 12
Evidence of Mr Todd Williams
[18] Ms Melanie Gardner who was the Manager of Street Machine Collingwood gave evidence for Mr Williams. 13 Mr Williams worked at this store. It was her evidence that she communicated with the employees of Lush Productions about all aspects of the operation of the store. It was her evidence that Street Machine was part of Lush Productions because all weekly rosters and budgets would be set by the manager of Lush Productions and employees of Lush Productions would “set up sales and deliver stock or do general maintenance.”14 It was also her evidence that Street Machine staff were paid through the financial manager of Lush Productions.15
[19] While Ms Gardner gave evidence that her pay slips were from Lush Productions she also stated that her pay slips would be identical to Mr Williams’ pay slips. 16
[20] Ms Gardner gave evidence that Rincon Rights was on the chequebook and was used in banking. 17
[21] Mr Williams gave evidence that he was interviewed by Ms Gardner for the position. He did not recall completing an employee declaration form. Mr Williams accepted that his pay slips had Rincon Rights printed on them.
[22] Mr Williams thought his employer was Lush Productions, and therefore Leonda, because “during [his] whole employment [he] only dealt with people at Lush Productions.” 18 Also, his pay slips were sent to him by Lush Productions.19
[23] Mr Williams said he had never seen the name Rincon Rights and he did not know that it owned Street Machine. 20
Conclusion
[24] As I advised on 11 May 2012, the evidence supports the finding that the employer of Mr Williams was Rincon Rights. That is the name that appeared on Mr Williams’ pay slips and the uncontested evidence of Mr Vati and Mr Luff was that Lush Productions provided management services to Rincon Rights but did not employ Mr Williams. It was their evidence that the retail staff employed at Street Machine were employed by Rincon Rights. Therefore the jurisdictional objection of Leonda is upheld.
[25] Mr Williams did not apply to amend his application. Had he done so I would have pursuant to section 586 of the FW Act amended the application so that the Respondent to these proceedings was Rincon Rights.
[26] To resolve the matter to finality I directed Rincon Rights to file and serve an affidavit setting out the number and names of the employees of Rincon Rights at the date of the termination of Mr Williams’ employment. I asked that the company records that support that information be attached.
[27] I also asked that Mr Vati include in the affidavit whether there are any related body corporate of Rincon Rights.
[28] On 16 May 2012 Mr Vati filed an affidavit in which he attested that Rincon Rights had 9 employees. Mr Vati further attested that Rincon Rights does not have any related body corporate with employees. While no company records were attached, Mr Vati’s evidence at the hearing about the number of Rincon Rights’ employees was not contested.
[29] The Applicant was provided with an opportunity to file any material in response to that filed by Rincon Rights by 25 May 2012. My Associate contacted Mr Williams on 28 May 2012 and again on 31 May 2012 about his response. An email was forwarded to him on 1 June 2012.
[30] As Mr Williams has not filed any further material I will determine the question of whether Rincon Rights has 15 employees on the papers.
[31] I find that Rincon Rights at the time Mr Williams’ employment was terminated had less than 15 employees. As Mr Williams had not been employed for 12 months at the date of his dismissal he was not entitled to make an unfair dismissal application against Rincon Rights.
COMMISSIONER
Appearances:
T Williams on his own behalf.
R Luff for the Respondent.
Hearing details:
2012.
Melbourne:
May 11.
1 Transcript PN 14
2 Ibid at PN 14 -20
3 Ibid at PN 25
4 Exhibit R2
5 Transcript PN 52
6 Exhibit R3
7 Transcript PN 68
8 Ibid PN 70
9 Ibid PN 71
10 Ibid PN 73
11 Ibid PN 74
12 Ibid PN 78
13 Exhibit A1
14 Ibid
15 Ibid
16 Transcript PN 92, 100
17 Ibid PN 104
18 Ibid PN 135
19 Ibid PN 142
20 Ibid PN 148
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