18 Similarly, the respondent's evidence as to the conversation around 2 November 2007 was said to have included discussion about the applicant's ongoing employment as a casual employee. It seems to me improbable that this aspect of the conversation occurred. First, the applicant is firmly of the view that while she initially was employed as a casual, she became a permanent employee well before November 2007. Second, and in support of the applicant's contention she was a permanent employee, the respondent paid the applicant at least some annual leave. Annual leave payments ordinarily would not be extended to a casual employee, thereby suggesting the applicant was permanent rather than casual. Third, the employment records tendered by the respondent do not record the payment of a casual loading, again suggesting the applicant was a permanent employee rather than casual. If this aspect of the respondent's evidence concerning a short conversation does not withstand scrutiny as it concerns casual employment, I am inclined to doubt that any part of the conversation occurred. As such, I prefer the applicant's evidence that the proposed transfer of employment was not discussed with her around 2 November 2007.
19 Given my conclusion that the evidence of the applicant is to be preferred to that of the respondent concerning the alleged conversation around 2 November 2007, the evidence concerning the ancillary matters is not particularly relevant. However, it is appropriate to make some comment concerning those matters given the reliance placed on them by the respondent, namely: the certificate of company registration; documents titled "Weekly time and wages record worksheet - Casual employee"; references by the applicant to her employer as the "company"; and the initiation of proceedings federally.
20 I accept the applicant's evidence that she did not see the certificate of company registration, there being only supposition to the contrary that she must have seen it.
21 I am inclined to doubt the reliability of the employment records tended into evidence by way of documents titled "Weekly time and wages record worksheet - Casual employee" in which the company is nominated as the applicant's employer. The documents were said to have been provided to the applicant and, as a result, were also said to support the view that the applicant would have seen the company's name, rather than the respondent's name, specified as the employer. First, the respondent acknowledged that she did not provide any such documents to the applicant prior to incorporation and it remains unsatisfactorily explained why this should have commenced only after incorporation. Second, the applicant denies ever having received any such documents at all. The applicant, in her various claims to different bodies concerning alleged underpayments, has asserted (long before these proceedings commenced) she did not receive relevant documents such as payslips and group certificates - albeit she affixed other documents to such claims. Third, there is no signature of the applicant in the "Employee declaration" section of the documents. Fourth, the applicant contested the accuracy of the hours recorded in the documents and was strongly of the view that her hours would have been accurately recorded in other documents kept for the NSW Department of Community Services (those documents were not produced on a call from Mr Jaloussis, as Mr Wilson did not have them on the day; production was otherwise opposed on relevance grounds). Fifth, the content of the documents does not appear accurately to reflect superannuation payments, in that they record an employer contribution to the HESTA superannuation scheme being made, whereas the record of contributions provided in a HESTA superannuation statement does not record any employer contributions in the six months to 31 December 2007.
22 The respondent relied on miscellaneous references by the applicant to "the company" when referring to her employer. Similar reliance was placed on the fact the applicant had initially contacted the federal Workplace Ombudsman and the AIRC as being indicative of the proposition that she was aware she was employed by the company. In my view, nothing of relevance turned on these matters. The applicant was befuddled by which bodies she should contact and, indeed, which proceedings were which - as indicated by her repeated apologies when giving her evidence about her confusion in relation to such matters. Similarly, I am satisfied the applicant's references to the "company" were not used in a legal sense, but were used in a generic sense to refer to the pre-school/the respondent as her employer; and nor do I accept that such references reasonably should be considered as indicating the applicant had agreed to transfer her employment to the company.
23 Lastly, the applicant acknowledged in her evidence that she has problems with her memory with things that affect her personally. Even with this acknowledgement, I prefer and accept the applicant's evidence that the conversation said to have taken place around 2 November 2007 did not occur. In so concluding, I have taken into account particularly what I perceive as the unreliability of the evidence concerning the conversation as it involved casual employment status and the difficulties I have described with accepting the reliability of the ancillary evidence in the form of documents titled "Weekly time and wages record worksheet - Casual employee".
24 In short, I prefer and accept the applicant's evidence that the respondent did not have the conversation alleged to have occurred around 2 November 2007. It follows that I accept there was no consent, express or implied, from the applicant to a transfer of her employment from the respondent to the company.
25 Given my conclusions as to the evidence, I turn now to the question of whether the respondent or the company was the employer of the applicant as at the date of dismissal on 10 January 2008. As I noted in Wrzosek v Rainbow Nominees Pty Ltd ACN 000 774 774 (Receivers and Managers Appointed) trading as The Bernly Private Hotel [2006] NSWIRComm 1155, a decision referred to by Mr Jaloussis:
[15] … It is a fundamental basis of employment law that an employee cannot be transferred from one employer to another without the consent of the affected employee - the rationale lying, in part, in the personal nature of the employment relationship and the fact an employee cannot be forced to transfer to the employment of a different person or entity: Nokes v Doncaster Amalgamated Colleries [1940] AC 1014 at 1026.
26 Given the approach to the transfer of employment adopted since at least as early as the decision in Nokes v Doncaster Amalgamated Colleries [1940] AC 1014 at 1026 and adopted in more recent cases (such as Textile Footwear & Clothing Union of Australia v Bellechic Pty Ltd [1998] 1465 FCA; McClusky v Karagoizis [2002] FCA 1137; (2002) 120 IR 147; Mid-City Skin & Laser Centre v Zahedi-Anarak [2006] NSWSC 844), coupled with my findings on the evidence, I consider the respondent, rather than the company, was relevantly the employer of the applicant on 10 January 2008. As such, the application before the Commission under s84 of the Act is jurisdictionally competent.
27 Accordingly, the parts of the respondent's notice of motion concerning want of jurisdiction and the rejection of the late application are dismissed. I order accordingly. Nothing was advanced by either party in relation to the question of costs, which was also addressed in the notice of motion. Leave is reserved in that respect.
28 I now direct that the evidence on the substantive issue be filed and served as follows:
1. All evidence in the proceedings shall be by way of signed written statements comprising the witnesses' evidence.
2. The applicant is to file and serve all written statements to be relied upon for each witness together with any other relevant documentation by 12 August 2008.
3. The respondent is to file and serve all written statements to be relied upon for each witness together with any other relevant documentation by 2 September 2008.
4. The applicant is to file and serve any reply to the respondent's documents by 9 September 2008.
5. The parties shall include in or with their written statements all matters and documents upon which they rely or they allege are relevant to the proceedings.
6. Without the leave of the Commission, written statements and other documentation filed and served later than the time specified in these directions may not be relied upon by either party.
7. Cross-examination of a witness shall not be allowed unless, at least seven days prior to the hearing, notice in writing has been given to the opposing party that a witness is required for cross-examination.
29 I will now remit the file to the Registry for the allocation of a hearing date for the substantive application concerning the allegedly unfair dismissal.
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