Anthony Geoffrey Matthews v Cool or Cosy Pty Ltd; Ceil Comfort Home Insulation Pty Limited; Citigroup Pty Ltd,

22 At the Hearing the applicant was represented by Ms P Thew, a barrister. The submissions made by Ms Thew firstly dealt with the question of the applicant's employment circumstances. Ms Thew submitted that the applicant was for all practical purposes, an employee of the first respondent, Hendricks. 23 Ms Thew made detailed submissions in elaboration of a documentary outline of submissions which generally sought to persuade the Commission that the first respondent should be held to be the applicant's employer for the purposes of the unfair dismissal claim. In this respect the applicant's primary submission was that the first respondent, Hendricks, exercised the substantial range of functions that would ordinarily relate to an employer. 24 Ms Thew submitted that the second respondent, Staffords had only a minor administrative payroll function, and that despite the Employment Agreement document between the applicant and Staffords, the actual employer of the applicant was Hendricks. 25 Ms Thew made an alternative submission that operated if the Commission was not persuaded to find that the true employer of the applicant was Hendricks. This alternative submission proposed that both the first and second respondents should be found to be the joint employers of the applicant. Ms Thew referred to a variety of cases where the concept of joint employment had been discussed. 26 The submissions made by Ms Thew then addressed the termination of employment of the applicant. Ms Thew submitted that the reason, or reasons given to the applicant for her dismissal had no basis in fact. Ms Thew submitted that the performance and conduct issues as mentioned by Mr Braban, were either, unable to be factually confirmed, or were matters not capable of being relied upon as appropriate basis for dismissal. In any event, according to the submissions made by Ms Thew, the applicant had been summarily dismissed, and dismissal on such a basis was disproportionate to the gravity of the alleged poor performance and/or conduct issues. 27 Ms Thew further contended that the applicant was unfairly dismissed because she had not been given an opportunity to make out a defence, or give explanation, regarding the matters that Mr Braban said justified her dismissal. 28 Ms Thew then made further submissions concerning the unfortunate conduct of Mr Braban relating to the telephone conversation on or about 9 January 2006, with Mr Everett. Ms Thew submitted that the conduct of Mr Braban was calculated to deter the applicant from bringing or continuing these proceedings, and could therefore constitute contempt of the Commission. Further, Ms Thew submitted that Mr Braban's conduct sought to interfere with the administration of justice, and may constitute criminal contempt. 29 Ms Thew returned to her primary submissions in respect to the identification of the applicant's employer and she reiterated the proposition that upon analysis, the applicant's true employer was Hendricks. Ms Thew urged the Commission to find that the applicant's employment had been unfairly terminated by Mr Braban and that the applicant should be provided with remedy by way of an Order for compensation. THE CASE FOR THE FIRST RESPONDENT 30 Mr Braban appeared at the Hearing and represented the first respondent, Hendricks. Mr Braban made submissions which firstly asserted that Hendricks was not the employer of the applicant. Mr Braban submitted that Hendricks had executed the Consultancy Agreement with Staffords and that agreement established that Staffords would provide the applicant as a consultant to Hendricks. Mr Braban made submissions which sought to rely upon the Consultancy Agreement such that the Commission would find that Staffords, and not Hendricks, was the employer of the applicant. 31 Mr Braban made a further submission which involved the basis upon which he said he was justified in bringing the "arrangement" between Hendricks and the applicant to an end. Mr Braban said that he had endeavoured to counsel the applicant on many occasions including regular monthly meetings about things such as her excessive private telephone use and other performance and conduct issues. Mr Braban made submissions which urged findings of poor performance and inappropriate workplace behaviour as he alleged against the applicant and which he said justified his actions in terminating the "arrangement" that Hendricks had with the applicant. THE CASE FOR THE SECOND RESPONDENT 32 At the Hearing, the second respondent, Staffords, was represented by Mr A Barwick, a solicitor. Mr Barwick made submissions that concentrated upon the issue of the identification of the applicant's employer. Mr Barwick made extensive submissions on the analysis that he said should lead the Commission to conclude that the applicant's true employer was Hendricks and not Staffords. 33 Mr Barwick referred to various decided cases where a Court or Tribunal had been required to identify the actual employer in circumstances where that issue was not clear. Mr Barwick submitted that in the present circumstances, the Commission needed to look at the entire range of indicia which were relevant to determining what the actual relationship was between the applicant, and either the first or second respondent. According to the submissions of Mr Barwick, the Commission should be persuaded that the overwhelming number of relevant indicia pointed towards Hendricks and not Staffords, as being the actual employer of the applicant. 34 Mr Barwick made further submissions about the notion of joint employment. Mr Barwick submitted that the circumstances of this case did not provide a basis to establish that the two respondents could be held to be jointly the employers of the applicant. Mr Barwick made submissions which strongly urged the Commission to reject any findings of joint employment. 35 Mr Barwick returned to his primary submission and reiterated that the Commission should find, upon careful analysis, that the applicant's employer was Hendricks and not Staffords.

CONSIDERATION 36 The primary aspect for consideration of this matter has involved the identification of the employer of the applicant. The employment circumstances of the applicant were a little unusual and in large part a consequence of her being a foreign national working under requirements to maintain a valid work visa. 37 An analysis of these circumstances as broadly set out earlier in this Decision, established that the applicant performed recruitment consultancy work exclusively for Hendricks during the period between October 2004, and up until her alleged unfair dismissal on 28 November 2005. During this period the applicant's remuneration was paid by Staffords, and her visa sponsorship was provided by Pegasus which owned Staffords. Consequently both Hendricks and Staffords/Pegasus had, to varying degrees, conducted themselves and performed particular functions that would usually be exercised by the employer of the applicant. 38 The Commission has been required to analyse the various details of the functions that Hendricks and Staffords/Pegasus performed in respect to the applicant's employment so as to determine whether Hendricks or Staffords, or perhaps both, were the employer of the applicant. In circumstances such as the present case where the evidence reveals that there was clearly some sharing of employer functions between different entities, there would seem to be considerable attraction for adopting the concept of joint employers. In some respects the joint employers outcome would avoid the need for a detailed analysis of all of the circumstances so as to conclude that one or the other of either Hendricks or Staffords should be found as the employer. 39 Although there is considerable attraction for adopting the joint employers approach and perhaps simply assigning relative proportions of liability to the respective joint employers, this approach would depart from the contemporary position as established in Australian employment law. It is easy to envisage many instances where extensive, costly litigation could be avoided if Statutory provisions clearly provided for joint or multiple employers. 40 Particularly as modern employment circumstances are rapidly changing, legislation which has provided protection or benefit to certain individuals who have historically been characterised as employees, may be increasingly negated by a failure to recognise and adapt to the changed workplace arrangements that have emerged. The need for adaptation and in some cases clear change to certain historical principles relating to employment law, has been mentioned in recent years when the issue of identification of an actual employer has been under analysis. In one such case, the Full Bench of the Western Australian Industrial Relations Commission stated as follows: "This situation was, it should be understood, not a traditional employment situation but was a contemporary situation now not uncommonly encountered in the business world so that new and involving techniques require the law to continually evaluate its approach to the characterisation of relationships and rights and obligations which may flow from them". Anthony Geoffrey Matthews v Cool or Cosy Pty Ltd; Ceil Comfort Home Insulation Pty Limited; Citigroup Pty Ltd , (2003) Full Bench of Western Australian Industrial Relations Commission, [Sharkey P, Coleman CC & Gregor C], 2003 WAIRC 10388.

41 Despite some desirability for application of the concept of joint employment, there is some clear difficulty with such a concept without either some Statutory or Authoritative foundation. One immediate difficulty would arise in respect to apportionment of liability between two joint employers. It would seem that any proper apportionment of liability would still involve a detailed analysis of the extent to which each of the joint employers operated or performed functions in respect to the particular employment relationship. 42 In the absence of some Statutory basis to prescribe a notional apportionment (perhaps, simply an equal share), the analysis that would be required to properly apportion liability between two joint employers would be similar to that which is needed for the established approach involving the review of all of the indicia and other relevant circumstances, so as to make a finding that one particular entity is the actual employer. Consequently it would seem that in the absence of some clear Statutory regime to provide for joint employment, any proper assignment of joint liability would still lead to the detailed analysis that is presently required so as to identify the true and actual employer. 43 Therefore little or nothing would be gained by adopting the joint employer concept remembering that for the applicant or plaintiff there would usually be little concern as to precisely where any apportioned remedy might have its origins. As was clearly expressed in this instance, the applicant would not be too concerned about where the money was coming from in terms of any Order for compensation, but rather, achieving such compensation with efficiency and minimal cost. 44 Although the concept of joint employment may have some considerable attraction I think it is probably impractical in the absence of some clear Statutory foundation. The Commission must therefore determine between Hendricks and Staffords as to which of these two Corporations was the employer of the applicant. The approach required is to examine the particular factual circumstances of the applicant's employment and to consider those circumstances against the established tests that involve various identified factors or indicia. The examination of all of these indicia or factors then provides for a conclusion as to whether Hendricks or Staffords was the actual employer. 45 Without recording all of the detailed aspects that are relevant to this analysis, there are several particular components relevant to the employment circumstances of the applicant which should be mentioned.

46 The strongest support for finding that Staffords was the employer of the applicant relates to the Employment Agreement between Staffords and the applicant, and the Consultancy Agreement between Hendricks and Staffords. 47 These two documents broadly reflect circumstances often described as labour hire. In the circumstances of this case, the Employment Agreement between Staffords and the applicant would not be dissimilar to the usual employment agreement that a labour hire company might have with an employee who is given an assignment or placement with a particular client of the labour hire company. 48 Similarly, the Consultancy Agreement document is broadly similar to the type of agreement or contract that would be established between a labour hire company and a company that was seeking to have employees of the labour hire company placed with them to perform particular work. As was suggested by Ms Thew for the applicant, the circumstances in this case have some similarity to those that were the subject of Decision of McKenna C in the case Nguyen and ANT Contract Packers Pty Ltd, and Thiess Services Pty Ltd (Nguyen) Oanh Nguyen v A-N-T Contract Packers Pty Ltd trading as A-N-T Personnel and Thiess Services Pty Ltd trading as Thiess Services, (2003) Industrial Relations Commission of NSW [McKenna C.], 128 IR @ 241.. In the Nguyen case, Commissioner McKenna found that Thiess was the actual employer at least for the purposes of Orders for compensation, although all relevant employment documentation had been constructed between Ms Nguyen and ANT Contract Packers. 49 As was the case in Nguyen, the documentation including executed agreement documents such as those presented in this instance, are not determinative of the question of which of the two entities was the actual employer. The documents appear to reflect an intention on the part of all three Parties to have Staffords and not Hendricks as the employer. An examination of the documents and the evidence regarding the development of the documents and their execution is important. 50 The Employment Agreement was executed by the applicant after she had commenced to work for Hendricks. Hendricks made the letter of offer on 30 September 2004, and the applicant resigned from her employment with Pegasus, then, upon commencement with Hendricks, she was provided with the Employment Agreement document. Although the applicant did sign the Employment Agreement document, she did not examine it closely and she testified that she was really in no position to do other than comply with what she saw as being arrangements that might have been established to assist in the ongoing sponsorship of her "457 visa". 51 It is also important to note that there was no evidence that the applicant was provided with any suggestion by Hendricks or Staffords of the particular arrangements that were reflected by the Consultancy and Employment Agreements. At the time that the applicant resigned from Pegasus, she was entitled to believe that her employment would be with Hendricks as it was the subject of written offer. The applicant only became aware of engagement with/via Staffords when she was presented with the Employment Agreement document. 52 The evidence provided by Mr Braban about the Consultancy Agreement was also important. Mr Braban stated that as Hendricks was engaging two Recruitment Consultants, the applicant and Ms Ghezzi, he wanted to reduce his "risk" and have one of the two individuals engaged as a "direct" employee and the other, the applicant, as a contractor or by way of some arrangement to avoid whatever risks would be associated with "direct" employment. In the absence of any clear explanation to the applicant about these particular arrangements prior to her resignation from Pegasus, the process essentially amounted to a deliberate misrepresentation upon which to establish engagement of the applicant in either employment or some other contractual arrangement. 53 The Employment Agreement between Staffords and the applicant is connected to the Consultancy Agreement and is directly referred to in a particularly important provision in the Employment Agreement. The Employment Agreement contained a provision (11.3.7) which permitted Staffords to terminate the Employment Agreement without notice where "the Agreement between the client [Hendricks] and the Company [Staffords] is terminated for any reason." Therefore the intended operation of the Employment Agreement in conjunction with the Consultancy Agreement, would permit Staffords to terminate the Employment Agreement without notice in circumstances where the Consultancy Agreement was terminated for any reason. 54 The intended effect of these provisions related to the perceived "risk" that Mr Braban had mentioned in respect to "direct" employment of both the applicant and Ms Ghezzi. Although the applicant was not provided with a copy of the Consultancy Agreement, when the two documents are considered together, the intended joint operation of the two Agreements would allow for the prospect that Hendricks could terminate the Consultancy Agreement with Staffords pursuant to Clause 7.3.3 simply by providing written notice that the applicant had failed to perform services to the satisfaction of Hendricks. Then, by operation of the Employment Agreement, because the Consultancy Agreement had been terminated, Staffords could terminate the Employment Agreement with the applicant without notice. 55 That is essentially what occurred on 28 November 2005. Prior to telling the applicant that he was finishing her "arrangement," Mr Braban had advised Staffords that he was invoking the termination provisions of the Consultancy Agreement. Hendricks and Staffords relied upon and acted in accordance with, the stated provisions of the Employment and Consultancy Agreements. Consequently, the applicant was dismissed without notice shortly after Hendricks provided written notice to Staffords of the termination of the Consultancy Agreement under clause 7.3.3. 56 Unfortunately for Mr Braban as he discovered in these proceedings, the applicant has challenged the purported reliance upon the Consultancy and Employment Agreements. The "protection" from "risk" that Mr Braban had thought was established by the Consultancy and Employment Agreements has not indemnified Hendricks from the applicant's attempted redress for what she perceived to be her unfair dismissal. Of course, if the Commission was persuaded that the Consultancy and Employment Agreement documents were determinative of the question of the applicant's true employer, then Hendricks may have successfully avoided any requirement to answer in respect to the actions of Mr Braban, when he summarily dispensed with the services of the applicant on 28 November 2005. Hendricks may then have successfully transferred responsibility for its actions to Staffords. 57 However the Commission must look behind the documentation and review all of the circumstances relating to the applicant's employment so as to decide who was the actual employer. There are various factors which provide strong support for a finding that Hendricks was the applicant's employer and not Staffords. Mention will be made only of the most significant factors which provide support for finding that Hendricks and not Staffords, was the employer of the applicant.

The Sequence of Events 58 Firstly, the applicant approached Hendricks and was actively seeking alternative employment. The discussions between the applicant and Hendricks which led to the offer and acceptance of employment did not mention the "consultancy" arrangements that included Staffords. The letter of offer of 30 September 2004, makes no mention of engagement via Staffords or some other entity, and it was not until after the employment commenced that the applicant was asked to sign the Employment Agreement with Staffords in respect to the work with Hendricks. 59 It would seem therefore that the employment with Hendricks was offered, accepted and commenced before the Employment Agreement with Staffords was executed. Therefore the prospect that Hendricks had always sought to have the applicant engaged via some intermediary was not established before the actual commencement with Hendricks. Hendricks had become the employer before there was an attempt to reconfigure the arrangement and involve Staffords. This is also supported by the date upon which the Consultancy Agreement was executed on behalf of Staffords which post-dates the commencement of the applicant's employment by almost a week. 60 The attempted reconfiguration of the applicant's employment after she had commenced with Hendricks, assists in finding that Hendricks was the employer throughout.

Hours of Work and Entitlements to Leave 61 Secondly, the hours of work for the applicant were determined and controlled by Hendricks. Although the applicant enjoyed some flexibility with work hours her absences for sick or other leave were issues that were dealt with directly by Hendricks. In particular Mr Braban cited the issue of absenteeism as one of the reasons for termination of "the arrangement" with the applicant. Provision and Maintenance of Work Related Equipment

62 Thirdly, Hendricks provided the applicant with work related equipment such as laptop computer and mobile phone. There was no evidence of any work related equipment being provided by either Staffords or the applicant herself.

Rate of Remuneration and Expenses 63 Fourthly, Hendricks negotiated directly with the applicant in respect to the rate of remuneration involving a minimum monthly retainer and a commission structure in addition to that amount. Further, Hendricks authorised payment to the applicant for reimbursement of expenses incurred in respect to work activities. Consequently it was Hendricks and not Staffords that essentially determined the amount of remuneration and other allowances or expenses paid to the applicant.

Control and Integration 64 Fifthly, Hendricks possessed and when required, exercised the day to day direction and control of the work of the applicant. In particular, such direction was made by the Directors of Hendricks, Messrs Braban and Dyke. The applicant was integrated into the business of Hendricks. She had direct involvement in a wide range of operational activities, including identification of commercial objectives and achievements. The integration of the applicant into the Hendricks business is exampled by Mr Braban conducting monthly appraisal meetings whereby the applicant's performance and results were discussed.

A Device to Disguise 65 Sixthly, the engagement of Ms Ghezzi as a "direct" employee and the conscious decision to construct a different arrangement for the applicant, is clear indication of an attempt to create an arrangement that did not truly reflect the actual circumstances. The evidence provided by Mr Braban established that the alleged consultant/contractor arrangement was created for the specific purpose of endeavouring to avoid certain perceived risks associated with direct engagement of the applicant as an employee. 66 The evidence suggested that as a result of certain apprehensions about the performance and conduct of the applicant expressed to Mr Braban by someone (unidentified) from Pegasus, Mr Braban consciously determined to establish an arrangement with the applicant that would be "less risky" than the direct employment relationship established between Hendricks and Ms Ghezzi. Consequently Hendricks took conscious steps to construct a contractor/consultant arrangement via the Consultancy Agreement which would likely have the effect of misrepresenting the true position between Hendricks and the applicant. 67 An examination of the entirety of the circumstances surrounding the relationship between Hendricks and the applicant could not reasonably lead to any other conclusion than for almost all purposes other than provision of payroll and visa sponsorship, Hendricks possessed and discharged the functions of the applicant's employer. Although Hendricks went to some considerable effort to misrepresent the true position, upon an examination, Hendricks must be identified and held to be the actual employer of the applicant.

Commercial and Consumer Protection for an Employee 68 It is relevant to also mention that the contractual arrangements that were entered into between Hendricks and Staffords, and Staffords and the applicant would, if tested more broadly, be held as unconscionable and in all likelihood, invalid. Whether it be the employment of an individual or the provision of goods or services in any commercial transaction, the process that involved the establishment of firstly the applicant's Employment Agreement, and then the Consultancy Agreement between Hendricks and Staffords was deceptive, misleading and unconscionable. 69 The applicant had every reasonable expectation that she would be employed by Hendricks. At the time when the applicant and Ms Ghezzi were negotiating to work with Hendricks there was no mention about the arrangement that would involve the provision of the applicant's services via Staffords. After the applicant had resigned from Pegasus the applicant was provided with the Employment Agreement document with Staffords. In effect the applicant had bought the goods "Hendricks", only to subsequently find that it was a different product, "Staffords". The applicant had resigned from Pegasus and was therefore locked into purchasing the Staffords product which had never been disclosed and had been misrepresented as being the Hendricks product.

70 Having been mislead and compelled to purchase the Staffords product, the applicant was then subjected to the unconscionable terms attached to the Staffords product via the Employment Agreement. On any reasonable and objective assessment it would be unconscionable to create circumstances such as those that were established by the concurrent operation of the Employment and Consultancy Agreements. The applicant's Employment Agreement provided for termination without notice if the Consultancy Agreement was terminated for any reason. Consequently Hendricks sought to obtain the capacity to unilaterally and summarily terminate the contract without reason or explanation. This unconscionable provision was being imposed upon the applicant in circumstances where she had been deceived and had little or no alternative but to accept the circumstances.

THE UNFAIRNESS OF THE DISMISSAL 71 There need be only brief mention about the circumstances of the applicant's dismissal which satisfied the Statutory criteria. Even if the evidence of poor work performance and conduct as alleged by Mr Braban was confirmed, such matters could not justify summary dismissal as opposed to dismissal with notice. The summary nature of the dismissal emerged as a consequence of the unconscionable provisions of the Consultancy and Employment Agreements. Consequently even if the employer's evidentiary case was made out, the applicant's dismissal would be harsh, unreasonable and unjust because there was no gross and wilful misconduct that could justify summary termination. 72 Further, there was clear inadequacy in respect to any appropriate warning about the alleged poor performance and/or conduct issues that were said to underpin the decision to dispense with the applicant's services. Therefore on both substantive and procedural grounds the dismissal of the applicant must be held to have been harsh, unreasonable and unjust.

73 The Determination of this unfair dismissal claim has primarily involved a requirement to identify the applicant's true employer. The employment circumstances of the applicant included involvement of three different commercial entities, two of which were named as first and second respondents in the proceedings. 74 Upon careful examination of the entirety of the applicant's employment circumstances, the Commission has Determined that the first named respondent, Hendricks Pty Ltd (ABN36097282196), was the employer of the applicant for all practical purposes and in particular, for the purposes of answer to this unfair dismissal claim. 75 This Determination has been made following careful examination of the factual circumstances surrounding the applicant's employment and application of relevant established principles in particular, having regard for the Judgements in the matters of Hollis V. Vabu Pty Ltd trading as Crisis Couriers, Hollis v Vabu Pty Ltd t/a Crisis Couriers [2001] HCA 44, 106IR 80. and Staff Aid Services V. Bianchi. Staff Aid Services v Josie Bianchi (2004) Full Commission of Australian Industrial Relations Commission [Lawler VP, Kaufman SDP & Blair C] 133IR 29.

76 The applicant was summarily dismissed by the employer who purported to rely upon the combined operation of a Consultancy Agreement and an Employment Agreement that had been established between the applicant and the second respondent, Staffords. The applicant's dismissal was summary in nature and allegedly based upon poor work performance and other work conduct matters including alleged absenteeism. There was no documented record of warning to the applicant about the matters that were said to have provided the substantive basis of dismissal. 77 As the alleged substantive basis for dismissal could not justify summary dismissal as opposed to dismissal with notice, and as the applicant was not provided with any warning or an opportunity to make out a defence or offer explanation regarding the matters that were said to provide basis for dismissal, the dismissal was both substantively and procedurally erroneous. 78 Consequently the Commission finds that the dismissal of the applicant was harsh, unreasonable and unjust. Reinstatement or re-employment of the applicant would be impracticable. Therefore the Commission is prepared to provide for Relief by way of monetary compensation. The amount of compensation has been determined having regard for sections 89(5) and 89(6) of the Act. ORDERS

In this matter, for the reasons outlined herein, the Commission has determined that the dismissal of the applicant was harsh, unreasonable and unjust and the following Orders are now made: 1. The Commission Orders, pursuant to sections 89(5) and 89(6) of the Act, that the employer, Hendricks Pty Ltd, pay to the applicant an amount of compensation of $12,750.00. This amount is a gross figure and appropriate taxation treatment is a matter for the Parties. 2. The amount of compensation specified in Order 1 above is to be paid by the employer to the applicant within twenty one days from the date of this Decision. oooOOOooo

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.