WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Industrial Relations Act 1979. Mr Clay Adams and GKS Fibreglass Pty Ltd. No. 2250 of 1997. 15 December 1998. Reasons for decision. COMMISSIONER S A CAWLEY: This application is brought pursuant to section 29(1)(b)(i) of the Industrial Relations Act, 1979 (“the Act”). By it Mr Clay Adams (“the applicant”) claims he has been unfairly dismissed by GKS Fibreglass Pty Ltd (“the respondent”). In the claim as filed the applicant sought an order that he be reinstated in employment by the respond- ent. Subsequently, however, the remedy sought was amended to an order for compensation amounting to six months wages calculated at $550.00 per week (albeit the weekly wage in the claim as filed is said to have been $380.00). The respondent does not admit the applicant was in fact an employee and, in any event, denies that the applicant was dismissed at all and seeks an order that the claim be dismissed. The respondent is engaged in the business of producing fi- breglass products such as spas, shower cubicles and other items. The business is owned by Mr Graham Stubbs who manages its operations. Mr Garry Kelly is the respondent’s factory manager. As well as overseeing the production output, Kelly is responsible for administration of staff matters such as the payment of wages and generally managing in the absence of Stubbs for any reason. Both gave evidence in this matter. It is uncontentious that in September 1995 the applicant com- menced employment with the respondent as a general hand and, in time, moved up to the position of chopper gun opera- tor. It is also uncontentious that the applicant sought and got some pay rises during the period from September 1995 to Sep- tember 1997 when an arrangement for piece work payments was entered into between him and Stubbs. It is Stubbs’s evidence that this came about after an approach by the applicant to become a contractor. Stubbs says he de- clined this proposal on the basis that the applicant was still relatively inexperienced. He says the applicant and he then agreed that the applicant would be paid weekly on a piece work basis with the respondent guaranteeing to make up to $341.51 any shortfall from the piece work arrangement in any week subject to the applicant being at work in the relevant period. The applicant acknowledges that an arrangement for piece work payments was entered into in September 1997 and sug- gests in his evidence that he had no option but to accept it. But there is no tenable evidence that this was the case. Indeed the evidence is otherwise. Both Stubbs and Kelly say the applicant was a fast learner and an excellent worker. It is noted the respondent paid for him to attend a four day course relevant to his work. This, at least, suggests satisfaction with his aptitude and attitude. His output was said by Kelly to be good. And it is the case that from the commencement of the piece work arrangement until 6 November 1997 the weekly return to the applicant was greater, sometimes significantly so, than was the case prior to that time. The applicant acknowledges that he sought and ob- tained pay increases prior to September 1997. All this evidence, which I accept, suggests that the respondent recognised the applicant’s work and/or potential and when approached by the applicant in or about August 1997 with concerns about his pay rates, the piece work arrangement was entered into as a means of satisfying these and at the instigation of the applicant. This is borne out by a notation made by Kelly in the wages book at the time. The applicant admits his signature appears alongside this notation but says he has no memory of it. But the most probable explanation for the signature is that it amounted to an endorsement of the notation. It was obliquely put by the respondent that as a consequence of the changes to the payment arrangements, the applicant ceased to be an employee. Whether or not the relationship re- mained that of employee and employer is not a matter of labels. It is a matter for weighing up the functioning of the relation- ship. There are a number of indicia. The most significant of these involve what may be called “the control test”. It goes to the degree of independence involved. The evidence is that the following applied after the piece work arrangement was entered into. The respondent contin- ued to deduct taxation on a pay as you earn basis from the applicant’s pay. Superannuation was deducted. No tools were provided by the applicant. He continued to work full time and regular hours. While the respondent suggested his work was no longer subject to supervision, this is not borne out by the evidence. It appears the applicant still reported to Kelly for all purposes. It was part of the agreed arrangement that all annual leave accrued to then would be paid out and there would be no further accrual rights. All annual leave benefits accrued to then was, by agreement, paid out over time. Workers’ compensa- tion obligations of the respondent remained unchanged. The respondent supplied all safety equipment. The applicant put in invoices for the purposes of weekly payment. A person em- ployed by the respondent was directed to assist the applicant. There is evidence that Kelly objected to that person doing chop- per gun work. It appears then that the applicant had no ability to delegate chopper gun work to that person and, presumably, not to anyone else. Having regard for all this and the evidence of the relation- ship in practice I am satisfied that notwithstanding the invoices, the method of payment and the agreed cessation of annual leave rights, the applicant was subject substantively to ongo- ing control by the respondent in the work relationship from September 1997 and it remained that of employee-employer. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 79 W.A.I.G. 250 That being so, there is no bar to the Commission’s jurisdiction on the ground that the applicant was not an employee. Another and fundamental issue between the parties as to fact also goes to jurisdiction. It is whether the applicant was dismissed at all. The applicant says he was dismissed on 27 November 1997 (albeit the claim as filed says the date of dis- missal was 25 November 1997). The respondent says that the applicant was not dismissed at all but was “stood down” on 27 November 1997 because the respondent held reasonable con- cerns that the applicant was not fully fit to continue in the respondent’s work environment following a work accident on 6 November 1997. The applicant says that on that date the catalyst used to harden resin sprayed out of the top of a release valve of a pressurised tank up and into his face as he leant over the tank. He was not wearing safety glasses or any breathing apparatus or mask at the time. Stubbs drove the applicant to a medical practice that day and, after being seen by a doctor, he was told to return the following day for another examination to review the situation. He did. This resulted in a medical certificate dated 7 Novem- ber 1997 to the effect that the applicant was unfit for normal duties until Monday 10 November 1997. This is the first of a number of medical certificates involving the applicant pro- duced to the respondent after the accident. All are before the Commission. The applicant says that notwithstanding his return to work on Monday 10 November 1997 he experienced difficulties with his eyes and had headaches. Kelly was either told or became aware of these complaints. Kelly says he urged the applicant to get further medical attention. On 13 November 1997 Stubbs called the applicant into his office and, in the presence of Kelly, questioned him about the ongoing problems he said he had. Stubbs then arranged for an appointment for the applicant to be made with a medical practitioner that day and urged him to seek a referral to a specialist. The applicant left work to attend that appointment. The medical certificate resulting from that appointment states the applicant was fit for work but required more treatment regard- ing lubricity of his eyes and it noted a referral of the applicant to an ophthalmologist for specialist attention. An appointment with the ophthalmologist was set for 5:00pm Monday 17 No- vember 1997. It appears the applicant did not attend work in the meantime. The specialist’s certificate from that appoint- ment stated the applicant was fit for eight hours work per day until 23 November 1997 when he was to attend for a review. The applicant returned to work on Tuesday 18 November 1997 and worked the following day too. It appears he was absent the following two days. He was at work on 24 November 1997 and the same day saw the specialist again. The medical certifi- cate issued by the specialist on that date declared the applicant fit for work and noted that there was with no need for further review. However, according to Kelly, the applicant had continued to complain of headaches throughout. Kelly and Stubbs also say the applicant generally looked unwell and did not function as effectively as he had previously in the job. The applicant ac- knowledges he continued to experience headaches and problems but does not acknowledge he looked unwell. He does acknowledge, however, that he was getting his assistant to carry out the chopper gun work and that Kelly was unhappy about this. Kelly says he discussed his concerns with Stubbs. On 25 November 1997 the applicant was called into the office. The upshot of this meeting was that the applicant was told by Stubbs to go and get his medical situation sorted out. The applicant left and did not attend for work the next day. Kelly says he rang the applicant’s home and was told by his mother that he was seeing a doctor. The applicant attended for work the fol- lowing day but according to Kelly he looked unwell and, while the applicant produced a medical certificate to cover his ab- sence for the previous day it did not specify any illness let alone any cause. Kelly says that in the context of the respond- ent’s concerns, he regarded the certificate as “useless”. He says he then told the applicant to go home and to come back to work only when he was 100% fit. The applicant says that Kelly only told him to go because the respondent didn’t want him there unless his performance was 100%. The applicant says that, accordingly, he was dis- missed. Further, he says he had reason to believe that the respondent intended to get rid of him in that the piece work arrangement had been ended by the respondent on 24 Novem- ber 1997 when he was returned to “wages” and he had been told by another employee that a person had been engaged to replace him. The respondent denies it ended the piece rate ar- rangement at all. On Friday 28 November 1998 the applicant came to the workplace and requested a separation certificate be filled in by the respondent. He says it was a pre-requisite to claiming sickness benefits. The request was made to Kelly and Stubbs and the reason for the request was stated to them. A form was filled out but the respondent says this was only done as a re- sult of the request in the context of the applicant’s desire to apply for sickness benefits. It says that in fact the applicant was told by Stubbs and Kelly several times at that meeting that his employment was not terminated. And that is in their evidence. Kelly says that for these reasons the respondent did not acknowledge any dismissal at all on the form and included the following statement on it ¾ Due to complications from a work related accident we have stood Clay Adams down until he has sorted out his problems with his doctors. It is Kelly’s evidence that he filled out the form and Stubbs signed it on behalf of the respondent. Stubbs confirms this. The following week this claim of unfair dismissal was filed. Having had the advantage of seeing each of the witnesses over some time, I can say that while Stubbs evidence is clear and Kelly, though imprecise as to dates of absences of the applicant, came across as forthright, the applicant was not only imprecise as to crucial dates but he could not remember whether or not significant conversations occurred. For instance it is his evidence that he could not remember approaching Stubbs to become a contractor; seeing the statement in the wages book re piece work; being told to wear safety glasses when mixing chemicals; being told on 25 November 1997 by Stubbs to get his medical condition sorted out; being told he looked ill and so on. This vagueness contrasts with his unequivocal answers in some other respects. Having regard for what is before me I have concluded as follows. First the evidence as to the respondent’s motive for a dismissal as alleged by the applicant. No benefit to the em- ployer from ending the applicant’s employment is apparent in all the circumstances. There are medical certificates to the ef- fect that the applicant was fit for work. It was not established any workers’ compensation liability was affected. The appli- cant says no sick leave entitlement existed at the time of the accident. The applicant’s absences would not have meant a cost to the employer and any suggestion of a dismissal to avoid sick leave payments or workers’ compensation payments is not sustained. Nor is there evidence to support the contention that the applicant was “put on wages” other than the evidence of Stubbs that it was contingent on the piecework payment arrangement that the applicant was guaranteed a base wage when working. And while the applicant says he was told by another employee that the respondent had already or was go- ing to replace him, that was as far as it was taken. Indeed, not only is the applicant’s claim as to motive not made out, the evidence suggests a dismissal would be disadvantageous to the respondent in ending the employment of a competent chop- per gun operator in whom the employer had already invested to some degree through training. I turn now to the evidence, particularly, of developments from 6 November 1998. First, there is no question the appli- cant is a good chopper gun operator. He had secured wage increases as a result of good performance and, following one approach by him to Stubbs, entered into a piece work payment arrangement. This was a consensual arrangement. On 6 No- vember 1997 the applicant was involved in an accident at work. He sought and got medical attention for this. Notwithstanding various medical reports of fitness for work subject to review and/or hours limitation and then, on 24 November 1997, un- conditional fitness for work, the applicant complained in the period after the accident of ongoing problems which he be- lieved were associated with it and/or fumes in the workplace. Kelly became aware of these complaints through observation and from being told by the applicant. He informed Stubbs. The respondent’s resulting concern is evidenced by Stubbs’ action on 13 November requiring the applicant to seek further WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 251 79 W.A.I.G. medical advice and urging him to get specialist attention. The applicant continued to consult medical practitioners and take intermittent time off. In the circumstances where the applicant has been medi- cally declared fit for work but has ongoing complaints which he ascribes to the accident and/or the workplace, the respond- ent’s concerns as to his fitness for work were reasonable, particularly in such a workplace as was involved here. In my view there was reasonable cause in the circumstances for the respondent to want the applicant to get a medical clearance specific to his complaints and related to the work place. Clearly, the medical certificate produced subsequently did not do this. It was, as Kelly said, “useless” in the circumstances. In my view Kelly’s then statement that the applicant was not to re- turn to work until he was 100% fit (and I accept this version) amounted to a reiteration of the requirement that he obtain a medical clearance in relation to his complaints of headaches and/or ongoing eye problems having regard for the workplace environment. That did not amount to a termination of the em- ployment. It clearly contemplated the applicant continuing in employment. Nor was a dismissal effected by the respondent the follow- ing day when the separation certificate was filled out. I accept that the document came about as a result of the applicant’s request but not that it reflected the fact of a dismissal. Indeed the document is consistent with the respondent’s claim that there was no dismissal. It could even be argued that the cer- tificate supports a view that the applicant voluntarily severed the employment with a view to applying for sickness benefits in that the respondent’s statement as to “stand down” appears on the document as a response to a question as to why the employee has voluntarily severed the employment. Whether or not the respondent had a right to “stand down” the applicant is not determinative of anything here. The ques- tion is whether or not it dismissed the applicant (or even, though it was not argued, whether there was a constructive dismissal through refusal to allow the applicant work). Having reviewed the evidence I have concluded that it falls short of establishing that there was in fact a dismissal. That being so there is no jurisdiction to deal with the claim of unfairness. An order reflecting that conclusion now issues. Appearances: Mr G Sturman appeared on behalf of the ap- plicant. Mr J Davies (of counsel) appeared on behalf of the respond- ent.