Wrightson v Hassell
[2017] FCCA 548
•22 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WRIGHTSON v HASSELL | [2017] FCCA 548 |
| Catchwords: INDUSTRIAL LAW – Application for joinder of parties – where party sought to be joined necessary party to proceedings. INDUSTRIAL LAW – Application for extension of time pursuant to s.370(a)(ii) of the Fair Work Act – extension granted. INDUSTRIAL LAW – Application to amend to plead alternative claim against respondent pursuant to s.550(1) of the Fair Work Act – where party not named in certificate issued by Fair Work Commission pursuant to s.368(3)(a) of Fair Work Act – leave to amend granted. |
| Legislation: Corporations Act 2001 (Cth), ss.148(2), 152 Fair Work Act 2009, ss. 340, 346, 365, 368(3)(a), 370(a)(ii), 550(1) Federal Circuit Court Rules 2001 r.11.01(2) |
| Cases cited: Bognar v Skilled Offshore Pty Ltd & Anor [2016] FCCA 2962 Damevski v Giudice (2003) 133 FCR 438 Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803 Fair Work Ombudsman v Eastern Colour Pty Ltd (No 2) [2014] FCA 55 Jenice Ltd v Dan (1992) 12 ACLC 3209 |
| Applicant: | VANESSA WRIGHTSON |
| Respondent: | JAMES HASSELL |
| File Number: | BRG 899 of 2015 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 15 November 2016 |
| Date of Last Submission: | 6 February 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 22 March 2017 |
REPRESENTATION
| Solicitors for the Applicant: | S. A. Ingui Solicitor |
| Solicitors for the Respondent: | O’Reilly Workplace Law |
ORDERS
The application in a case filed 28 October, 2016 for summary dismissal is dismissed.
Hassell Mortgage Group Pty Ltd be joined as a party to the proceedings and be designated as the Second Respondent.
Leave is granted to the Applicant to amend her application to include an order against the present respondent James Hassell pursuant to s.550 of the Fair Work Act2009.
By 4:00pm on 12 April, 2017 the Applicant file and serve upon the First and Second respondents a statement of claim;
By 4:00pm on 26 April, 2017 the First and Second Respondents file and serve a defence to the Applicant’s statement of claim.
Adjourn the proceedings to 9:30am on 28 April, 2017 for further directions.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 899 of 2015
| VANESSA WRIGHTSON |
Applicant
And
| JAMES HASSELL |
Respondent
REASONS FOR JUDGMENT
On 29 September, 2016 Ms Wrightson commenced proceedings against James Hassell in which she seeks relief pursuant to the Fair Work Act 2009 arising out of what she alleges is adverse action taken by Mr Hassell against her in the course of her employment. She seeks compensation and the imposition of pecuniary penalty upon Mr Hassell.
Mr Hassell opposes the application. Amongst other things, he contends that he was not Ms Wrightson’s employer.
By an application in a case filed on 28 October, 2016 Mr Hassell seeks summary dismissal of Ms Wrightson’s proceedings. Alternately he seeks an order that the proceedings be permanently stayed.
Ms Wrightson, perhaps prompted by the application made by Mr Hassell, filed an application in a case on 9 November, 2016 in which she seeks orders that her application be amended “to include ‘Hassell Mortgage Group Pty Ltd ACN 107 903 631’ as a further respondent to these proceedings”. She also seeks an order, perhaps in the alternative, “pursuant to s.366(2) of the Fair Work Act that the time for filing the applicant’s application be extended to allow further time to join ‘Hassell Mortgage Group Pty Limited ACN 107 903 631’ as further respondent to the application”. She seeks an order for costs against the present Mr Hassell as well as the proposed respondent “because they were parties to unlawful, misleading and deceptive corporate practice by not properly disclosing the identity of the alleged trustee of the Hassell Family Trust”. Alternatively, Ms Wrightson seeks an order for costs against Mr Hassell’s solicitor.
I heard the application filed by Mr Hassell and the cross-application filed by Ms Wrightson on 15 November, 2016. During the course of that hearing, a further issue emerged about which I directed the delivery of written submissions by each party. Both parties delivered those written submissions but remarkably, there was an argument between them about whether Mr Hassell might file and serve submissions in reply. To try and quell the unseemly dispute that had arisen between the parties respective solicitors about that, on 21 December, 2016 I made an order that Mr Hassell file and serve submissions in reply limited to questions of law within seven days of that date. Submissions were filed on 10 January, 2017. They were outside of the time frames set out in the order of 21 December, 2016. More dispute ensued between the solicitors for each of the parties. That culminated in me directing that the matter be re-listed for a directions hearing at which I ordered that Ms Wrightson file and serve further submissions by no later than 4:00pm on 6 February, 2017.
Consideration
The difficulty in the proceedings which has led to all of the interlocutory skirmishing between the parties is that Ms Wrightson’s solicitors, arguably did not commence the proceedings against the correct respondent. Her solicitor’s evidence reveals that he was consulted by Ms Wrightson in late June, 2016 following the termination of her employment. At the consultation she provided her solicitor with three documents namely:
a)a deed of release;
b)a covering letter confirming the termination of her employment dated 28 June, 2016; and
c)a Centrelink employment separation certificate.
Each of those documents is in evidence. The deed of release, unexecuted, suggests by its terms that it would be between “Hassell Mortgage Group, ATF Hassell Family Trust trade as MORTGAGE CHOICE”. The expression “Employer” is widely defined to mean the entity to which I have just referred as well as “any company, partnership, trust or sole trader with common ownership or control (whether in whole or in part, directly or indirectly, or through interposed entities or not) to the Employer, including any other related companies to the Employer.
The letter terminating Ms Wrightson’s employment was on the letterhead which bore the title “Mortgage Choice”. At the bottom the letter is signed “James Hassell” and underneath that name appears the word “Director”. At the bottom of the letter appears these words:
“Hassell Mortgage, ATF Hassell Family Trust ABN: 60 610 889 118 has been licenced to use the trademarks owned by Mortgage Choice Ltd ABN 57009161979. Australian Credit Licence 382869”.
An identical letterhead was used for a letter which purports to be a form of reference for Ms Wrightson. There also appears to be what might be described as a pay slip for Ms Wrightson. It to bears the words “Mortgage Choice” along with a logo at the top on the right hand side of the payslip. Also at the top of the document appear the words: “paid by Mortgage Choice Miami”. Thereafter appears an ABN which appears to be the same ABN as that set out at the foot of the letters to which I have referred earlier. There is no other identification of Ms Wrightson’s employer on that document.
A copy of Ms Wrightson’s employment separation certificate for Centrelink purposes is in evidence. In section 8 of that form headed “employer details” and beside the words “business/trading name” appear the words “Hassell Mortgage Group”. The Australian Business Number is not completed nor are any details for the name and position of the person signing the form on behalf of Ms Wrightson’s employer. In those respects, the employment separation certificate is incomplete.
Finally, also in evidence is Ms Wrightson’s PAYG payment summary for the year ended 30 June, 2016. That document contains the ABN to which I have earlier referred and which was included at the foot of the letters referred to above. However the payers name is described as “Mortgage Choice Miami” and purports to be signed by an authorised person described as “James Hasselle”.
Ms Wrightson also provided to her solicitor her employment agreement dated 3 February, 2014. In that agreement, the employer is described as “Hassell Mortgage Group ATF Hassell Family Trust trading as Mortgage Choice (ABN 60 610 889 118). The document was signed for and on behalf of Hassell Mortgage Group ATF Hassell Family Trust trading as Mortgage Choice (ABN 60 610 889 118) by James Alexander Hassell. Mr Hassell’s position is not specified on the face of the document.
Armed with that information, Ms Wrightson’s solicitor conducted some searches of the publicly available databases. He conducted a search of the records kept by the Australian Securities and Investments Commission business names index in relation to the business name “Hassell Mortgage Group”. According to the search, there is no such registered business name. He also searched ASIC’s records in relation to the business name “Mortgage Choice ABN 60 610 889 118” but that name was not present on the ASICs register either. Ms Wrightson’s solicitor conducted an Australian Government Business Register ABN “look up search” for the ABN 60 610 889 118. The search result revealed that the entity name for which that ABN was registered was described as “The Trustee for Hassell Family Trust”. It was described as a discretionary trading trust registered for goods and services tax from 9 February, 2004.
Ms Wrightson’s solicitor explains that by reason of the results of the searches that he received and speaking of the written employment agreement that his client had given to him:
... I formed the view that agreement may not apply given the absence of a proper disclosed trustee entity and that accordingly Mr James Hassell may in fact be the true employer. Alternatively, I formed the view that if the agreement did apply then the employing entity was Mr James Hassell given the absence of a properly disclosed trustee entity.
On 1 July, 2016 Ms Wrightson’s solicitor wrote a letter to Mr Hassell or his solicitor concerning Ms Wrightson’s allegations. The letter is not in evidence. Mr Hassell’s solicitor responded by a letter dated 8 July, 2016. That letter is in evidence. In that letter, in the opening paragraph Mr Hassell’s solicitor says:
Refer to your 1 July 2016 letter and to the various allegations set out in that letter regarding the circumstances leading to the termination of Ms Wrightson’s employment from Hassells Mortgage Group Pty Ltd (Mortgage Choice).
Although Mr Hassell’s solicitors’ letter suggests that the letter from Ms Wrightson’s solicitor was in reference to the circumstances leading to Ms Wrightson’s termination of employment from “Hassell Mortgage Group Pty Ltd”, the latter letter is not in evidence. Nonetheless, it seems unlikely that it would have referred to “Hassell Mortgage Group Pty Ltd (Mortgage Choice)” given the information that had been given to Ms Wrightson’s solicitor and the enquiries that he had made. Moreover, in my view it is more likely than not that had Ms Wrightson’s solicitor’s letter of 1 July, 2016 referred to “Hassell Mortgage Group Pty Ltd (Mortgage Choice)” it would have been put in evidence before me. The of this being that the suggestion that a company was Mr Wrightson’s employer was made for the first time in Mr Hassell’s solicitors’ letter of 8 July, 2016. The suggestion was made in an oblique way.
The balance of the letter (which is just over three pages in length) deals with the allegations made by Ms Wrightson against Mr Hassell (or her employer) but does not deal in any way with the identity of the employer. Mr Hassell’s solicitor contends that that letter “included information confirming Mr Hassell’s position that Ms Wrightson’s former employer during the period was Hassell Mortgage Group Pty Ltd” however, beyond the statement to which I have referred in the opening of the letter there was no such “confirmation”. Indeed, there was no discussion of the identity of Mr Wrightson’s employer.
On 18 July, 2016 Ms Wrightson by her solicitor, filed a general protections application involving dismissal with the Fair Work Commission in which she alleged contraventions of ss.340 and 346 of the Fair Work Act by Mr Hassell.
Mr Hassell lodged a response to the application. In part 2.2 of the response Mr Hassell says as follows:
1. The Respondent has identified the incorrect Respondent in the General Protections Application Involving Dismissal (Application). The Applicant was not employed by James Hassell in his personal capacity, and there is no trading name ‘Hassell Mortgage Group’ in existence.
2. The Hassell Mortgage Group Pty Ltd ATF the Hassell Family Trust (Respondent) denies that it has contravened s.340 or 346 of the Fair Work Act 2009 (Cth) (FW Act) as does Mr Hassell personally…”
On 16 September, 2016 the Fair Work Commission issued a certificate under s.368 of the Fair Work Act 2009 (Cth) certifying that an application pursuant to s.365 of the Fair Work Act was made by Ms Wrightson alleging that she was dismissed by “Hassell Mortgage Group ATF Hassell Family Trust T/A Mortgage Choice” in contravention of pt.31 of the Act. The Commission certified that it was satisfied that all reasonable attempts to resolve the dispute had been or were likely to be unsuccessful.
The present proceedings were commenced on 29 September, 2016. James Hassell is named as the respondent. Mr Hassell says that the application should be summarily dismissed because he was never Ms Wrightson’s employer. In support of that proposition, Mr Hassell relies upon a number of documents exhibited to the affidavit of his solicitor Denise Louise O’Reilly filed on 28 October, 2016. Those documents include:
a)A current company extract regarding the company Hassell Mortgage Group Pty Ltd (ACN 107 903 361) demonstrating it is a company limited by shares registered in Queensland on 9 February, 2004. The documents demonstrate that from 3 February, 2014 to the date of the filing of the affidavit Mr Hassell was the sole director, secretary and shareholder of the company.
b)A deed of settlement establishing the Hassell Family Trust dated 9 February, 2004 together with a copy of a deed of variation dated 24 February, 2012 showing that the company Hassell Mortgage Group Pty Ltd is the trustee of the Hassell Family Trust.
c)A search of the Australian Business Number register using the “ABN look up” facility which reveals that the ABN 60 610 889 118 was registered to the “The trustee for the Hassell Family Trust”.
d)A search conducted on 27 October, 2016 of “organisations and business names” on the “ASIC website” in relation to “Hassell Mortgage Group” demonstrating that there were seven results returned for that search, one of which was Hassell Mortgage Group Pty Ltd. There were other results that did not include the word mortgage.
By his evidence, Mr Hassell points out that when Ms Wrightson commenced her employment on or around 6 February, 2014 she completed and signed an Australian Taxation Office tax file number declaration in which the payer was described as “Hassell Mortgage Group Pty Ltd as trustee for TA Mortgage Choice”. It is said by Mr Hassell in submissions that the tax file declaration was completed by Ms Wrightson but it is apparent, even from a cursory examination of the document, that it is completed in two different hands. It is signed by two different people. There is no evidence as to which part of the forms was completed first and whether that part of the form dealing with the registered business or trading name of the employer was completed before or after Ms Wrightson completed her section of the form and signed it. The instructions on the form direct that section B – that part containing the employer’s details is “to be completed by Payer”. Accordingly, that document is of limited assistance in demonstrating that Ms Wrightson had a clear understanding or a means of knowing the identity of her employer. Moreover, the name of her employer is misdescribed in that form.
Mr Hassell also points out that on or around 15 March, 2016 Ms Wrightson completed her own home loan application using the Mortgage Choice online application system. A copy of the online application is in evidence. It reveals that the “referrer” is recorded as “Mortgage Choice”. That is unhelpful. Under the heading “Search Criteria” appears the words “Entered by Mortgage Choice/The Hassell Mortgage Group ATF The Hassell Family Trust”. That is as equally unhelpful. Whatever support Mr Hassell says can be derived from this form to support his argument that Ms Wrightson knew the precise identity of his employer is illusory.
Mr Hassell also referred to the payroll records maintained in the Mortgage Choice business to establish that it was the company Hassell Mortgage Group Pty Ltd that was Ms Wrightson’s employer. He also relied upon details of the workers compensation insurance carried by the business in respect of Ms Wrightson. He also points to the professional indemnity insurance and product liability insurance that he maintained in the name of Hassell Mortgage Group Pty Ltd as demonstrating that Ms Wrightson’s employer was the company. However, he does not suggest in the evidence from his solicitor (Mr Hassell provided no sworn evidence himself) that Ms Wrightson knew of any of those documents which were internal to Ms Wrightson’s employer.
Discussion
As Ms Wrightson’s solicitor points out ss.148(2) and 152 of the Corporations Act 2001 (Cth) requires a company to use the post nominals “Proprietary Limited” at the end of its name. That is often shortened to “Pty Ltd” or “Pty Limited”. Save for the letter from Mr Hassell’s solicitor of 8 July, 2016 and the tax file number declaration signed by Ms Wrightson in 2014 there is no other document that has been demonstrated to have been in the hands of Ms Wrightson or her solicitor at the time the proceedings in the Fair Work Commission were commenced that referred to any company or corporate entity.
I have already made some points about the tax file number declaration above. I am not satisfied that it demonstrates that Ms Wrightson had any knowledge that Hassell Mortgage Group Pty Ltd was her employer. Nor am I satisfied that the reference in the solicitor’s letter of 8 July, 2016 was sufficient to bring to the attention of the solicitor for Ms Wrightson that the identity of Ms Wrightson’s employer was in issue.
Mr Hassell’s response to the Fair Work Commission proceedings did, however, make it plain that Mr Hassell was asserting that it was Hassell Mortgage Group Pty Ltd that was Ms Wrightson’s employer. However, it was not suggested before me that any documentary evidence was provided by Mr Hassell to Ms Wrightson or her solicitor to demonstrate that fact before the Fair Work Commission. The Fair Work Commission’s certificate does not refer to Hassell Mortgage Group Pty Ltd but rather “Hassell Mortgage Group as Trustee for the Hassell Family Trust trading as Mortgage Choice”.
The reference to “Hassell Mortgage Group” in Ms Wrightson’s employment contract, the purported deed of release, the letters of termination and the use of that name on the businesses letterhead, was entirely apt to mislead Ms Wrightson and, I am satisfied, her solicitor. On the basis of those documents and the descriptions of the employer in them it was plainly open for a reasonable solicitor to think that the business described as Hassell Mortgage Group as trustee for the Hassell Family Trust trading as Mortgage Choice was conducted by a real person rather than a company. The absence of any reference to a corporate entity or the inclusion of the requisite post nominals in circumstances where a company is required to use them as a matter of law justifies that conclusion: Penrose v Martyr (1858) EB & E 499, 120 ER 595; Jenice Ltd v Dan (1992) 12 ACLC 3209.
It is not beyond argument that Ms Wrightson’s employment contract is with Mr Hassell given the complete absence of any reference to a corporate entity in any of the documents to which I have just referred.
I am not satisfied that Ms Wrightson has no reasonable prospect of successfully prosecuting an application against the present respondent. In my view the application for summary dismissal should itself be dismissed.
The application to join Hassell Mortgage Group Pty Ltd
Mr Hassell contends that Ms Wrightson’s employer was Hassell Mortgage Group Pty Ltd. Prima facie in those circumstances it is appropriate to join that company to the proceedings. It is a necessary party to the proceedings and its joinder is justified by r. 11.01(1) of the Federal Circuit Court Rules 2001.
However, to join Hassell Mortgage Group Pty Ltd as a respondent to the proceedings at this stage would, in effect, permit Ms Wrightson to commence proceedings against that company outside of the time limit established by s.370(a)(ii) of the Fair Work Act. Ordinarily such proceedings must be commenced within 14 days of the issue of a certificate by the Fair Work Commission under paragraph 368(3)(a) of the Fair Work Act. The Court does have the power, however, to extend that time.
There is an explanation, reasonable in my view, as to why the company was not joined to the proceedings in the first instance. The difficulties that Ms Wrightson has encountered stem, at least in part, from the way in which her employer has chosen to conduct its business. If it is indeed the company that is her employer and it is the company which conducts the business as trustee for the family trust, then it has not complied with the Corporations Act by including the words “Proprietary Limited” or some derivative thereof after its name on documents (such as letters and employment contracts) issued by the company. The omission of those words was significant.
Moreover, there was no means by which Ms Wrightson or her solicitor could ascertain from publically available documents the name of the trustee of the Hassell Family Trust. On the evidence provided by each of the parties, the only public document which referred to the relevant Australian Business Number provided that it was owned by “The trustee of the Hassell Family Trust”.
That the company is indeed Ms Wrightson’s employer, as Mr Hassell contends, is entirely unclear and it may be that after a proper examination of the evidence the Court concludes that the company is in fact Ms Wrightson’s employer. As to the considerations relevant to determining the identity of an employer in cases of ambiguity, in Fair Work Ombudsman v Eastern Colour Pty Ltd (No 2) [2014] FCA 55 Collier J, referring to the Full Court in Damevski v Giudice (2003) 133 FCR 438 said:
127. Principles relevant to the identification of an employer in circumstances of ambiguity were considered by the Full Court in Damevski v Giudice (2003) 133 FCR 438. In that case in particular Marshall J observed, in summary, that:
· The existence of a contractual relationship and employment relationship, in any given set of circumstances, is ultimately a question of law (at 450).
· Payment of wages by a third party is not fatal to the existence of a contract of employment between a worker and a putative employer (at 451).
· Control over a worker did not merely relate to the on-the-job situation, but rather the ultimate or legal control over the worker (at 451).
· Contact between the putative employer and employee is an indicator of an employment relationship (at 452).
· Contracts of employment may be entered into with a minimum of formality (at 452).
· It is necessary to look “beyond and beneath the documents” and not reach a decision concerning the existence of an employment contract on the basis of construing the correspondence (at 453, cf Lord Mummery in Franks v Reuters Ltd [2003] IRLR 423).
· Even where the work relations are documented, it is necessary to examine not only the correspondence, but also the circumstances surrounding it, the subsequent conduct of the parties, and the way in which the parties operated and understood the situation (at 453).
An application of those principles may reveal that Mr Hassell is indeed Ms Wrightson’s employer, or that the company is, or that they are both her employer: eg., Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803 at [78].
I am not satisfied that there is prejudice to Mr Hassell or the proposed respondent if the joinder is permitted. Ms Wrightson has pursued her rights in a timely way from the time of the termination of her employment.
To the extent that an extension of the time to commence proceedings against Hassell Mortgage Group Pty Ltd is necessary, in the circumstances of this case I consider that it is appropriate to extend that time.
Ms Wrightson also seeks an order that she have leave to amend her application to include an order against the present respondent James Hassell pursuant to s.550 of the Fair Work Act. Mr Hassell is already a respondent to the proceedings. There is no time limit with which I need to be concerned in relation to the claim for relief under s.550 of the Fair Work Act against him. Having regard to the evidence relied upon by Ms Wrightson and the evidence relied upon by Mr Hassell, it is appropriate to grant leave to amend the proceedings for Ms Wrightson to include such claim against him. That he is not named personally in the certificate issued by the Fair Work Commission is no bar to proceedings against him under s.550(1) of the Fair Work Act: Allan v Condamine Catchment Natural Resource Management Corporation Ltd & Ors [2015] FCCA 2632; Zehnder v Sell Lease Property Pty Ltd T/As Sell Lease Property [2015] FCCA 3393 and Bognar v Skilled Offshore Pty Ltd & Anor [2016] FCCA 2962.
It is appropriate to order the delivery of a statement of claim by Ms Wrightson so that her claims against each respondent can be properly pleaded.
Costs
Ms Wrightson seeks her costs of these applications against Mr Hassell or alternatively her solicitor. To succeed in an application for costs she needs to establish that Mr Hassell’s unreasonable act or omission caused Ms Wrightson to incur the costs of these applications.
I am not satisfied that Mr Hassell’s unreasonable act or omission caused Ms Wrightson to incur these costs. Whilst I have found above that the failure to include the words “Proprietary Limited” or a derivative thereof after the words Hassell Mortgage Group was apt to mislead, I am also of the view that the letter from Mr Hassell’s solicitors of 8 July, 2016 but more importantly the response filed in the Fair Work Commission proceedings ought to have put Ms Wrightson and her solicitor on enquiry about the existence of the company and the possibility that it was Ms Wrightson’s employer. At the very least, one might have expected the company be joined to the present proceedings as a respondent from the outset.
In those circumstances, I am not satisfied that there ought to be an order for costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 22 March, 2017.
Date: 22 March, 2017
Corrections
File number on coversheet and first page of reasons changed from “BRG 899 of 2015” to “BRG 599 of 2015”
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