Bannister v Kayala Pty Ltd [2014] QCAT 150

CITATION: Bannister v Kayala Pty Ltd [2014] QCAT 150 PARTIES: Douglas John Bannister (Applicant) v Kayala Pty Ltd (ABN 71 128 255 916) (Respondent) APPLICATION NUMBER: MCD2410/13 MATTER TYPE: Other minor civil dispute matters Residential tenancy dispute HEARING DATE: 1 April 2014 HEARD AT: Brisbane DECISION OF: Member Favell DELIVERED ON: 4 April 2014 DELIVERED AT: Brisbane ORDERS MADE: The application is dismissed. CATCHWORDS: Minor civil dispute – whether contract of employment – whether minor debt APPEARANCES and REPRESENTATION (if any): APPLICANT: Douglas Bannister RESPONDENT: Kayala Pty Ltd represented by Gerald Hancock (director) REASONS FOR DECISION [1] By an application filed on 21 November 2013 in the minor civil dispute jurisdiction of QCAT as a claim for a minor debt, the applicant claims $5,596.73 made up as a claim to an amount owing of $5,137 and interest of $459.50. [2] The claim is made as a claim for unpaid wages and commissions from a period of employment at the respondent in 2012. -- 1 of 6 -- 2 [3] Essential to the applicant’s claim is that he was an employee for the relevant period. The respondent denies that he was ever employed or that he had any entitlement to commission. [4] Mr Bannister swore in an affidavit produced to the Tribunal that he was employed by Kayala Products Pty Ltd and commenced employment on 2 October 2012. Employment ceased on 25 October 2012. He says that he has not been paid any wages or commissions. [5] He produced a number of documents which he contended support his claim. Those documents make it apparent, and indeed are supported by a witness Mr Jerry O’Connor, that Mr Bannister, when suffering from a medical condition, was referred by Queensland Health to Connect2 to assist him to find work. [6] In doing that, Mr O’Connor on behalf of Connect2, introduced Mr Bannister to Mr Gerald Hancock from the respondent. [7] Mr Bannister contends that on 27 September 2012 there was a meeting between himself and Mr Hancock for the purposes of determining whether Mr Bannister was suitable for employment. He contends that terms of engagement were discussed and a verbal offer with terms of employment was made. He says that the terms of the engagement are detailed in an agreement sent via email to Mr Hancock on 3 October 2012. [8] Mr Hancock denies that there was any such agreement and says that the applicant was simply at the premises of the respondent as work experience and assessment on an unpaid basis. He says that because of his conduct during that time the applicant was asked to leave soon after. [9] Mr Bannister has supplied details of what he says where his work activities. Some of the evidence Mr Bannister seeks to rely on involves Nikita, who I am informed was from Connnect2, and Claude who was an employee of the respondent. He contends that Nikita in an email of 11 October 2012 stated that he was ‘already employed… officially on their books’. He says that his employment status was affirmed verbally by Mr Hancock at a meeting on 23 October 2012 and again on 25 October 2012. [10] Insofar as he claims an entitlement to commission, he says that the person Claude tried to entice him to sell metratrone machines for commission rewards. [11] As to the terms of employment, he points to handwritten notes made by him he says with Mr Hancock on 27 September 2012 and emails on 3 October 2012, 10 October 2012, 11 October 2013 and some Connect2 diary notes provided by Jerry O’Connor at a meeting of 7 November 2012. [12] He says that the terms for commissions on metratrone sales are included as attachments and emails from Claude. -- 2 of 6 -- 3 [13] In attachment A4 to the material filed, Mr Bannister sets out his calculations of the amount of unpaid wages and commissions. He sought to substantiate those claims in a letter dated 23 November 2012 to Mr Hancock.1 [14] It would seem that some of those claims have been based on some material which has been supplied by various personnel within the Connect2 group. He says that there is evidence that in an email of 3 October 2012 Mr Bannister sent Mr Hancock notes for discussions that day. Those notes included various items for a labour hire agreement. [15] Notes taken in a meeting of 7 November 2012 over the employment status dispute show, as did the evidence given during the hearing that Jerry O’Connor was of the view that Connect2 was not involved in an offer of employment. It also indicates that Mr Hancock would not employ the applicant. [16] In the material filed on behalf of the applicant, there are a number of documents which have parties listed as Kalaya Pty Ltd and Douglas John Bannister. There are discrepancies between the documents and there is no real evidence that they are anything else than documents prepared by the applicant. There is, in the document dated 1 October 2012, the following: In consideration of Kalaya’s financial situation and the relative short time that Kalaya has known Doug, Doug is willing to forego immediate gratification for delayed gratification. [17] That document has remuneration initially at $800 per week, paid weekly, with a review at least by three months. [18] Further there is evidence of Claude providing details for commission for various products and many notes taken by the applicant concerning various matters. [19] Significantly, however, there is nothing that indicates to me that there was any agreement for paid employment or for commission. [20] In my view the material does point to the applicant undertaking a period of unpaid work experience. He wanted to become more involved it seemed however he was regarded by Mr Hancock as being over-qualified and having delusions of grandeur. [21] I note an email of 11 October 2012 from Mr Bannister to Nikita Tuinona at Connect2 Group which expresses concern about the status of his placement. In it he says ‘I do not know whether I am officially an employee or going to be a contract or just removed. This is unacceptable.’ He also said 1 Attachment A5. -- 3 of 6 -- 4 However, today I had a chat to Claude (Watner) away from the office who advised me that Dell did not want to take on any more employees due to financial arrears and that I consider being engaged as a reseller of product. Claude is apparently to draw up some agreement and forward it to me. [22] Some emphasis was placed by Mr Bannister on an email dated 11 October 2012 from Nikita Tuinona who said to Mr Bannister ‘Jerry sent me a message last week to say that you have already been employed and I was under the impression you are officially on their books.’ Mr O’Connor at the hearing of the this matter refuted that he said any such thing and said that he was of the view that Mr Bannister was not employed but rather was carrying out work experience. [23] I note that in an email from Mr Bannister to Nikita Tuinona of 12 October 2012 he says For the moment, what I expect from Connect2 is to follow up with Kalaya and see what their response is to you guys about finalising my employment engagement. Of course, depending on what the response is, then set up an appointment to discuss the matter further. I suggest that there would initially be a meeting with Gerald, Claude, Dell to discuss any issues raised. To my mind that does not easily fit in with the proposition that the applicant was employed. [24] The applicant has provided numerous emails between him and Claude Watner concerning the sales of metratrone. In my view, they do not necessarily show that there was any agreement that he would be paid commission. Further, I do not see that there is any shown or proved basis for the claim of commission. I would have expected to see an agreement that commission should be paid and the basis on which commission was to be paid, that is, that it was something other than the mere introduction of the product, namely, the cause of the sale. [25] Attachment W46 is a copy of Jerry O’Connor’s notes. The applicant placed some reliance on a note which appeared beside the date 2 October 2012. That note said as a very important codicil to the above, Gerald spoke to me privately away from Doug and Nikita and said to me that Doug has asked to be employed on a full time basis at $3,200 per month and Gerald thought that maybe he could start at that rate and once he proves his worth it could be reviewed upwards. I said to Gerald that this proposal by Doug seems fair. I thought that all the terms and details obviously they would work out themselves with the wealth of accounting and business acumen that they both share. [26] He also relied on a note of 4 October 2012 which said Phoned Gerald to advise that Melissa Thomasso the coordinator will phone to meet with him re our paperwork outlining the details that Doug and he have arranged for Doug’s terms of employment etc. or words to that effect. … So the summation in my opinion is that Doug had not formalised his employment contract with Gerard and vice-versa so both are equally at fault. This was vital because there was never an advertised position anywhere and as such it betroths both to take responsibility for this job -- 4 of 6 -- 5 creation on the run, a job that got carried away with the excitement of the possibilities of growth of what are real and perceived fantastic natural health products and services without both not appending to the platform basics. [27] Mr O’Connor when cross-examined by Mr Bannister about these matters denied that he thought there was any employment agreement in place. Mr Bannister was supplied some figures from Leanne Mills who worked for the Connect2 Group. On 20 November 2012 there was a reply to an email from Mr Bannister of 19 November wherein he had reviewed some calculations from Ms Mills and asked questions. Even though that may have occurred, there is nothing showing that those calculations were based on any employment agreement. Indeed, they seem to be quite separate from anything coming from the respondent. [28] The material from Mr Bannister seems to support the proposition that he was preparing a claim to be made which claim is now being heard by the Tribunal. [29] In an email dated 26 November 2012 Nikita Tuinona said to Mr Banister ‘it was up to me to have Kalaya Products give you a written offer. After liaising with Jerry and him with the employer, they will not be doing this.’ [30] Gerald Hancock gave evidence2 that Mr Bannister was never contracted in any way to do work he claimed for. He makes the point that he has not presented any proof of a contract to back his allegations. He explains that it was the responsibility of a federal government agency that was set up to find employment for people with disabilities. Jerry O’Connor, the coordinator of the employment disability service funded by the federal government, phoned Mr Hancock and advised him that a lady by the name of Melissa Thomasin was given the responsibility of formalising any work agreement paid or otherwise and it was necessary before any employment was to happen. It was her duty to liaise with Mr Hancock, to agree with any terms and conditions before he was committed to any commercial contract with Mr Bannister. Mr Bannister was only ever on a trial for a suitability arrangement without any remuneration to assess his suitability for making any commitment. He says that all parties had agreed to that trial period and he believed it was standard practice before any employer is asked to support a person with any disability. [31] He says that Mr Bannister failed and he did not show any interest in the proposed duties (product costing and factory work). He had his own agenda and was never requested to set himself up as a management expert. That message was clearly relayed to Connect2 and they failed to take the appropriate action to advise Mr Bannister that he was not suitable. [32] As to the commission claim,3 he says that Mr Bannister did not represent the respondent and in fact he refused an offer made by Mr Hancock to be 2 Exhibit 1. 3 Exhibit 2. -- 5 of 6 -- 6 trained to sell various devices. Mr Hancock says that he is the person who alone makes the decisions with respect to commissions. He says that he was never employed as a salesman and he never made a sale for the respondent. [33] The claim for commission is based on the purchase by Debbie Casagrande who is the business owner of the Robina Bulk Billing Medical Centre. She said that she attended the Sounds Healthy Clinic in the second half of 2012 at a meeting that was organised by Mr Bannister. She arrived at the allocated time and Mr Bannister had not arrived. In the meantime she looked around the clinic and herself organised a few times to look at the machine and then she eventually purchased the machine to utilise in the business she owns. She says that there was never any discussion with Doug Bannister in the beginning as to whether she would purchase the machine and the decision and inquiries were purely her own doing. [34] Even on that basis, in my view, there is not sufficient evidence for Mr Bannister to properly amount a claim for commission even if there was an agreement that he would be paid commission. [35] In my view, the applicant has not proved that there was any agreement for paid employment or that a debt was owed by the respondent. [36] In all of the circumstances, the application is dismissed. -- 6 of 6 --