Zachary Clark v Ma Services Group Pty Ltd

[2020] FWC 2214

[2020] FWC 2214

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Zachary Clark
v
MA Services Group Pty Ltd
(U2020/2156)

COMMISSIONER BISSETT MELBOURNE, 30 APRIL 2020

Application for an unfair dismissal remedy.

[1] Mr Zachary Clark has made an application pursuant to s.394 of the Fair Work Act 2009 (FW Act) for relief from unfair dismissal. Mr Clark was employed by MA Services Group Pty Ltd (MA Services) as a cleaner at the time of his dismissal on 5 February 2020.

[2] MA Services has raised a jurisdictional objection in that it says that Mr Clark commenced employment with MA Services on 28 October 2019 and signed a contract with it 29 October 2019. It says, therefore, that at the time his employment was terminated Mr Clark had only completed 3 months service.

[3] Mr Clark says that he worked his first shift with MA Services on 5 August 2019 following an induction on 22 July 2019. He says therefore that he completed 6 months employment at the time his employment was terminated.

[4] For the reasons given below I am not satisfied that Mr Clark was employed by MA Services prior to 28 October 2019. He has therefore not completed the minimum employment period with MA Services and his unfair dismissal application must be dismissed.

Submissions and evidence

[5] On Tuesday 16 July 2019 Mr Clark received a text message from “Sherree” in which he was offered a position working for “MA Services Group” at Cadbury (Mondelez) in Claremont. The text message also provided detail of hours of work and a site induction.

[6] MA Services says that it has never engaged and did not know of a “Sherree” and that it does not engage employees by text message.

[7] On 22 July 2019 Mr Clark received a Mondelez induction certificate which indicated the “Company” to be “MA Services Group Pty Ltd” in relation to Mr Clark.

[8] Mr Clark produced a time sheet which showed that he worked on 5 August 2019 and a further 2 days that week. The time sheet is for Cadbury and shows the company name as “MA”. MA Services says that the time sheet produced is not one used by MA Services, that the rates of pay are incorrect compared to the Award rate which MA Services pays and that MA Services fortnights go from Monday to Sunday and not Sunday to Saturday as shown on the time sheet produced by Mr Clark.

[9] Mr Clark also produced his payslip and bank records. The bank records indicate that he was paid by “Australian Manag Aus Mgt Payment”.

[10] The information on Mr Clark’s payslip indicates that the employer was Titan cleaning Pty. Ltd. ABN 45 615 813 824 (Titan) and that “Payroll conducted by XS Security Services ABN 38 618 533 341”. Whilst Mr Clark agreed that this was the detail on a number of his payslips he said that he was never employed by Titan or by XS Security Services.

[11] Mr Clark also relies on an email that he sent to “vdevadason@maservicesgroup” to indicate that he was employed by MA Services. He could not however produce any correspondence directly to him from anyone at MA Services.

[12] Mr Clark submits that, on the basis of the evidence presented by him, it is reasonable for the Commission to infer that he had been employed by MA Services from 5 August 2019. As his employment was terminated on 5 February 2020 he had completed 6 months service and hence was protected from unfair dismissal.

[13] MA Services says that the payslip produced by Mr Clark for the period starting 14 October 2019 shows that the payslip was for the period ending 20 October 2019 (that is, for only 6 days) and that it indicated that Mr Clark’s employment had ended on 20 October 2019. The payslip also showed that Mr Clark was, in that payment, paid out his outstanding annual leave. Mr Clark said he was not aware it was a termination payment.

[14] MA Services produced a contract of employment signed by Mr Clark which indicates that Mr Clark commenced with MA Services on 28 October 2019. His work location was Mondelez working 38 hours per week. That contract also indicated Mr Clark would be paid a base rate of $24.77 per hour for work Monday to Friday, $32.31 per hour for Saturday, $43.08 per hour for Sunday and $53.85 for public holidays. MA Services says that these rates can be contrasted to the rates shown on Mr Clark’s time sheet for the period 6-19 October 2019 which show rates of $28 for week days, $35 for Saturdays and $46 for Sundays. MA Services said in this regard that it pays the award rate and not the rates suggested on the time sheet provided by Mr Clark.

[15] MA Services said that it has held the cleaning contract for Mondelez since 2018. Further, it says that, until late in 2019 it had subcontracted the cleaning staff and only directly employed supervisors. It said that it could have been that Titan was the company that it subcontracted to at Mondelez. In late 2019 MA Services decided that it should directly employ its cleaning staff. It says that Mr Clark was required to apply for the position at MA Services which he did. The contract arose from the decision to offer Mr Clark employment.

[16] MA Services said that there was no evidence on which it could be concluded it had employed Mr Clark prior to 28 October 2019.

[17] MA Services further submitted that it does not pay employees through XS Security Services.

[18] MA Services said that, even if there had been a transfer of business (which it did not concede) from Mr Clark’s previous employer to MA Services, Mr Clark could not be found to have completed 6 months service. This is because there was an 8-day break between the end of his employment with his previous employer and the commencement of his employment with MA Services. MA Services says that, pursuant to s.22 of the FW Act, the 8-day period when Mr Clark was not directly employed, whilst not breaking continuity of employment, does not count as service. For this reason MA Services submits that if there was a transfer of employment Mr Clark had only completed 5 months, 2 weeks and 6 days of continuous service. He therefore would not have completed 6 months continuous service necessary to be protected from unfair dismissal.

Consideration

[19] Section 382 of the FW Act sets out the circumstances under which a person is protected from unfair dismissal. It states:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[20] Minimum employment period is defined in s.383 of the FW Act:

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.

[21] Section 384 of the FW Act defines the period of employment:

384 Period of employment

(1)  An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

[underlining added]

[22] Continuous service is defined in s.22 of the FW Act.

[23] The determination of Mr Clark’s continuous service is only a relevant consideration if there has been a transfer of business. Mr Clark did not seek to advance that argument but rather relies on me drawing an inference as to his employer being MA Services over the entire period he was engaged from 5 August 2019 to 5 February 2020.

[24] Whilst Mr Clark submits that it is reasonable for me to infer that his employer did not change over the 6 month period in question, the evidence before me encourages me to infer exactly the opposite.

[25] The time sheets submitted by Mr Clark in relation to the first employment period (5 August 2019 – 20 October 2019) do not have the same professional appearance as the time sheet produced by MA Services. The periods covered by the time sheets differ – Sunday to Saturday in the former and Monday to Sunday in the later – the timesheets for MA Services provide space for the employee’s and manager’s signature while the time sheets for the earlier period do not and the earlier timesheets (at least one of them) contain rates of pay that are not those paid under the later contract and do not appear on the timesheet for the later period. This does not support a finding that the employer remained the same over both periods.

[26] The payslip of Mr Clark for the period ending 20 October 2019 indicates that his employment concluded on 20 October 2019. Further, the payslip shows a termination payment in relation to annual leave. This payslip strongly suggests that Mr Clark’s employment with the earlier employer concluded on 20 October 2019. This does not support a finding that the employer remained the same over both periods.

[27] The contract of employment signed by Mr Clark suggests that his employment with MA Services commenced on 28 October 2019. While Mr Clark says he cannot recall signing the contract he agreed that it was his signature that appeared thereon. This is contrasted with no evidence of any contract of employment for the earlier period. This does not support a finding that the employer remained the same over the both periods.

[28] The payslips provided by Mr Clark indicate that he was employed by Titan Cleaning group Pty Ltd. A company extract from the ASIC provided by MA Services indicates that Titan Cleaning group Pty Ltd have the ABN as specified on Mr Clark’s payslip from the earlier period. A further company extract from ASIC for MA Services shows a different ABN. This does not support a finding that the employer remained the same through both periods. Further, there is nothing in the two extracts that suggests any relationship between the two companies.

[29] I do not draw any conclusion from the information contained on Mr Clark’s bank statement.

[30] The certificate of induction provided to Mr Clark by Mondelez suggests that the company relevant to Mr Clark’s employment was MA Services. There is nothing to indicate any other company was involved. This supports a finding that the employer remained the same.

Conclusion

[31] Considered as a whole I am not satisfied that I can infer from the evidence and documents before me that Mr Clark was employed by the same employer in both the earlier and later periods. For this reason I find that Mr Clark’s employment with MA Services commenced on 28 October 2019, concluding on 5 February 2020. For this reason he has not completed the minimum employment period. His application for relief from unfair dismissal must therefore be dismissed.

[32] In reaching this conclusion I am not unsympathetic to the circumstances of Mr Clark. He has worked at the same location for (almost) 6 months and has seen MA Services mentioned on employment documentation. It seems that the employer in the earlier period (most likely Titan Cleaning group Pty Ltd) provided nothing to Mr Clark that made clear who his employer was and that his employment had come to an end with them. Mr Clark had a strong sense that his employment rolled on and that it was with MA Services all the time. Unfortunately, his sense of what was happening in relation to his employment did not match the reality.

[33] Having reached this conclusion I do not need to consider the circumstances if there had been a transmission of business. I would observe however that it would appear that there was an 8-day break in employment, suggesting that Mr Clark’s period of continuous service would not meet the minimum employment period requirements.

[34] The application is therefore dismissed. An order 1 to this effect will be issued with this decision.

COMMISSIONER

Appearances:

J. Milligan for the Applicant.

G. Lind for the Respondent.

Hearing details:

2020.
Melbourne by telephone.
April 17.

Printed by authority of the Commonwealth Government Printer

<PR718648>

 1   PR718650.