INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA

CITATION : 2024 WAIRC 00774

CORAM : INDUSTRIAL MAGISTRATE C. TSANG

HEARD : WEDNESDAY, 13 DECEMBER 2023,

  THURSDAY, 14 DECEMBER, 2023     

DELIVERED : MONDAY, 19 AUGUST 2024

FILE NO. : M 129 OF 2022

BETWEEN : RAYMOND WEEDA

CLAIMANT

AND

SILVERHORSE TECHNOLOGIES PTY LTD

RESPONDENT

CatchWords : INDUSTRIAL LAW – whether, prior to his employment with the respondent, the claimant was continuously employed by the company he remains sole director and company secretary of, such that his employment with that company is continuous with his employment with the respondent for the purposes of determining his long service leave entitlements on termination of employment with the respondent

Legislation : Long Service Leave Act 1958 (WA)

Corporations Act 2001 (Cth)

Cases referred

to in reasons: : Desai v Harman & Co Pty Ltd [2017] WAIRC 00742

G v H (1994) 181 CLR 387

Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555

Tweedie v Zenitas Healthcare Pty Ltd ACN 009 074 588 & Anor [2023] WAIRC 00732

Result : Claim dismissed

Representation:

Claimant : Mr S Heathcote (of counsel)

Respondent : Ms V Bennett (of counsel)

REASONS FOR DECISION

Background

1         On 27 October 2022, the claimant (Mr Weeda) filed an Originating Claim seeking $53,516.57 in unpaid long service leave entitlements upon termination of his employment from the respondent (Silverhorse), contending:

(a)           He was employed by Luceo Systems Pty Ltd (Luceo) from 1 September 2002.

(b)           On 1 March 2014, Silverhorse acquired part of Luceo’s business and he commenced employment with Silverhorse.

(c)           Upon his resignation from Silverhorse on 31 May 2022, Silverhorse was required to consider his employment with Luceo as continuous with his employment with Silverhorse for the purposes of calculating his long service leave entitlements under s 8(2) of the Long Service Leave Act 1958 (WA) (LSL Act).

2         On 17 November 2022, Silverhorse filed a Response and Counterclaim, contending:

(a)           Mr Weeda was not continuously employed by Luceo from 1 September 2002 to 28 February 2014.

(b)           In the alternative:

(i)           From 11 November 2001, Mr Weeda was a director of Luceo, and from November 2005, he was Luceo’s sole director.

(ii)          From 1 March 2014 to 31 May 2022, Mr Weeda was Silverhorse’s Chief Executive Officer (CEO), and from 11 March 2014 to 14 June 2022, a director of Silverhorse.

(iii)         In or around March 2014, Silverhorse requested Mr Weeda to determine Luceo’s employees’ employment liabilities, based on the employees’ service with Luceo. Mr Weeda, however, excluded himself from the information provided to Silverhorse.

(iv)          Prior to April 2022, Mr Weeda failed to inform Silverhorse, nor did he draw Silverhorse’s attention to the fact that he was an employee of Luceo, nor advise Silverhorse that Silverhorse would have an employment liability arising from his employment with Luceo.

(c)           By reason of the parties conducting themselves on the basis that Mr Weeda was not an employee of Luceo, or by reason of Mr Weeda’s representations to Silverhorse, Mr Weeda should be estopped from claiming that he was continuously employed by Luceo from 1 September 2002 to 28 February 2014 (Estoppel Argument).

(d)           In his capacity as a director of Silverhorse, Mr Weeda owed Silverhorse a duty in both law and equity to exercise reasonable care and skill. By neglecting to inform Silverhorse prior to April 2022 that he was an employee of Luceo, or that Silverhorse would have an employment liability arising from his employment with Luceo, Mr Weeda breached:

(i)           Section 180(1) of the Corporations Act 2001 (Cth) (Corporations Act).

(ii)          His duty of care to Silverhorse.

(iii)         His equitable duty to Silverhorse to exercise reasonable care and skill.

(e)           By reason of the matters in [2(d)], if Mr Weeda is found to have been continuously employed by Luceo from 1 September 2002 to 28 February 2014, Silverhorse will suffer loss and damage amounting to $53,516.57. Therefore, any payment to Mr Weeda should be set off against Silverhorse’s loss and damage (Set Off Argument).

3         On 13 March 2023, Mr Weeda filed Further and Better Particulars, relevantly stating:

1. [He] commenced employment with [Luceo] in September 2002 as its Chief Technical Officer [(CTO)]. …

2. In November 2005, [he] took over the [CEO] role. …

3. The amount Luceo paid [him] varied according to Luceo’s capacity to pay wages/salaries.

4. In March 2014, [Silverhorse] became involved with Luceo following an agreement between Luceo and OGS [OGS Australia Pty Ltd, formerly Oil & Gas Solutions Pty Ltd].

5. Broadly, Luceo contributed:

a. goodwill;

b. a licence to use Luceo’s software and [sic] no cost to Silverhorse;

c. transfer of client relationships;

d. transfer of existing staff (including [himself]). …

7. [His] employment transferred from Luceo to Silverhorse in March 2014. He was, at that time, Silverhorse’s CEO and Managing Director. …

8. At no point from 2004 to May 2022 (when [he] resigned) was there any interruption to [his] continuous service.

4         On 11 April 2023, Silverhorse filed a Reply to Mr Weeda’s Further and Better Particulars, denying that Mr Weeda commenced employment with Luceo in 2002 as its CTO and that he took over the CEO role in 2005, and relevantly stating:

8.1 [I]f [Mr Weeda] had ‘continuous employment’ for the period 1 September 2002 to 31 May 2022, for purposes of the [LSL Act], which is denied:

8.1.1 by operation of section 6(3) of the LSL Act, [Mr Weeda’s] absences from, or interruption of employment, as referred to in subsection 6(2)(c) to (i) of the LSL Act, do not count towards [his] long service leave accrual;

8.1.2 [Mr Weeda] has failed to particularise his absences from, or interruptions of employment, for purposes of section 6(3) of the LSL Act, for the period 1 September 2002 to February 2014;

8.1.3 [Mr Weeda] failed to take into account his absences from, or interruptions of employment, referred to at [8.1.1] above, when calculating his long service leave accrual of 650.37 hours, as alleged at [5(c)] of [his Originating Claim], filed [27] October 2022;

5         On 29 May 2023, Mr Weeda filed a Response to Counterclaim, relevantly stating:

b. [Mr Weeda] admits that he did not inform Silverhorse that it was liable to allow him to take long service leave, or that it was obliged to pay him in lieu of long service if his employment ended otherwise than because of serious misconduct – this is not a ‘failure’ because [he] wasn’t under any kind of duty to alert Silverhorse to that matter;

c. [N]o estoppel arises in these circumstances because:

i. [Mr Weeda] did not represent to Silverhorse that he was not, at any material time, [Luceo’s] employee; …

iii. [Mr Weeda] did not make any representations to Silverhorse about his long service leave entitlements;

6         On 7 June 2023, at a Further Initial Hearing, the Court issued orders requiring:

(a)           The parties to file ‘Copies of Records’ containing any documents they intend to rely upon as evidence at the trial by 5 July 2023.

(b)           The parties to file an agreed Statement of Facts by 30 June 2023.

(c)           Mr Weeda to file any signed witness statements he intends to rely upon by 28 days prior to the date of the trial.

(d)           Silverhorse to file any signed witness statements it intends to rely upon by 21 days prior to the date of the trial.

(e)           The parties to file an outline of submissions they intend to rely upon by 14 days prior to the date of the trial.

The parties’ evidence

7         Despite the Court’s order at [6] above, Mr Weeda failed to file his Copies of Records. His counsel submitted that Mr Weeda ultimately complied with the Court’s order at [6(a)] above when he filed his affidavit attaching the documents he intended to rely upon at the trial.

8         On 6 and 13 July 2023, Silverhorse filed its Copies of Records, comprising of 40 documents, including:

(a)           Current and historical ASIC company extracts for Luceo dated 16 November 2022 and 5 July 2023: Documents 21 and 41.

(b)           Silverhorse’s annual financial reports for the financial years 2015 and 2017–2020: Documents 4–7 and 23.

(c)           Silverhorse’s annual and sick leave accruals for Graham Richardson and Steven Pearson, recording their respective commencement dates as 1 November 2010 and 9 February 2009: Document 13.

(d)           Silverhorse’s long service leave accruals at 30 June 2015 for Graham Richardson, Steven Pearson and Lucy Lambelin, recording Ms Lambelin’s commencement date as 28 April 2014: Document 15.

(e)           Silverhorse’s long service leave records for the financial years 2015–2017 and 2020, and its annual leave accrual history report dated 31 March 2021: Documents 35–39.

(f)           Correspondence between the parties, including:

(i)           An email from Anthony Connor to Mr Weeda sent on 27 February 2014, enquiring whether Mr Weeda has received tax advice: Document 8.

(ii)          An email from Anthony Connor to Mr Weeda and others sent on 20 March 2014, enclosing a Health & Safety Bulletin titled, ‘8 steps to identify a contractor’: Document 10.

(iii)         An email from Anthony Connor to Mr Weeda and others sent on 25 March 2014, in which Mr Connor states: Document 11:

I am presently finalising the irrevocable authority in relation to the existing Contracts and think within that same document we should articulate matters surrounding:

1. Quantum of employee entitlements and responsibility therefore;

2. Assignment of leasehold premises;

3. Contractual arrangements for Raymond – contractor or employee;

4. The value to be attributed to the IP within Silverhorse from day one.

(iv)          An email from Anthony Connor to Mr Weeda and others sent on 18 June 2014, in which Mr Connor attaches a draft contractor’s agreement and states: Document 12:

2. Draft Contractor’s Agreement for Raymond. Please note;

a. The Service Fee must be inserted

b. This is a Contractor’s Agreement and there are strict tax laws surrounding whether a contractor is indeed a contractor as opposed to an employee. The document contemplates the Contractor will not receive any employee benefits and will be registered for GST purposes. Also to the extent the Contractor is deemed an ‘employee’ as opposed to a Contractor, the Contractor must indemnify the Company for any costs incurred by the Company.

c. The scope of Services must be agreed.

d. Raymond should seek legal/ tax advice as to whether he fulfils the necessary ‘control’ tests that differentiates an employee from a contractor.

(v)           A letter from Mr Weeda to Paul Roberts dated 29 May 2022, stating: Document 18:

The calculation is based on the incorrect term. Please refer to Long service leave – What happens when business ownership changes? | Department of Mines, Industry Regulation and Safety (commerce.wa.gov.au). This means that the Long Service Leave should be calculated from 14/11/2001 through 31/05/2022 equating to 18.59 weeks and 706.35 hours. …

The entitlements payout should be paid as an Eligible Termination Payment reflecting the hours summary as below:

9         On 10 July 2023, the parties filed an Agreed Statement of Facts, stating:

The Claimant’s employment and directorship with the Respondent

11. Between 1 March 2014 and 31 May 2022, [Mr Weeda] was employed by [Silverhorse] in the role of CEO.

12. [Mr Weeda] was appointed as a director of [Silverhorse] on 11 March 2014.

13. At all material times between 11 March 2014 and 14 June 2022, [Mr Weeda] was a director of [Silverhorse].

14. Pursuant to section 180(1) of the Corporations Act, [Mr Weeda] had an obligation as a director of [Silverhorse], to exercise his powers and discharge his duties as a director with the degree of care and diligence that a reasonable person would exercise if they:

(a) were a director or officer of a company in [Silverhorse’s] circumstances; and

(b) occupied the office held by, and had the same responsibilities within [Silverhorse] as [Mr Weeda].

15. As at March 2014 and during [Mr Weeda’s] employment with [Silverhorse], [Mr Weeda’s] employment duties included:

(a) the architecture, design and development of [Silverhorse’s] technology;

(b) implementation and maintenance of technology for [Silverhorse’s] clients;

(c) overseeing customer satisfaction;

(d) financial management of [Silverhorse];

(e) recruitment;

(f) marketing; and

(g) sales activities.

16. In or around March 2014:

(a) [Silverhorse] asked [Mr Weeda] to determine the employment liabilities for employees employed by [Silverhorse] who had previously been employed by Luceo, based on their continuous service with Luceo (the Employment Liabilities); and

(b) [Mr Weeda] provided [Silverhorse] with details of the Employment Liabilities, which did not include any employment liability for [himself] for long service leave with Luceo.

17. In or around 2014, [Silverhorse] employed several previous employees of Luceo, that were not [Mr Weeda], and took on their Employment Liabilities based on their continuous service with Luceo.

10      On 11 September 2023, Mr Weeda filed an affidavit, stating:

(a)           His employment biography includes:

Luceo Systems: (2001 – Present), Director and architect of Luceo’s workflow publish [sic] technology. CTO and CEO, responsible for the development of the technology, its commercialisation (Sales), deployment, staff development and customer satisfaction.

(b)           In 2002, seed capital was secured, and he was tasked with the architecture and development of the product (called Completions Connect). ‘That was the point in time I became Luceo’s employee. Prior to that time, Luceo had no money to employ anyone’.

(c)           He was responsible for sales, ongoing development, implementation and customer satisfaction.

(d)           By 2014, he was focused on growing the business to sell it. ‘At that point, it was really just a good product supported by a one‑man‑band’.

(e)           He was ‘engaged as an employee (PAYG) and paid a salary from September 2002 through to March 2014’. Mr Weeda attaches a Payment Summary Report – Individual Non Business for the 2003 financial year and PAYG Payment Summary – Individual Non Business for the 2004–2014 financial years (PAYG summaries). The PAYG summaries state that Luceo made the following gross payments to him:

(i)           $52,849 during the period 19 August 2002 to 30 June 2003.

(ii)          $52,500 during the period 1 July 2003 to 30 June 2004.

(iii)         $25,000 during the period 1 July 2004 to 30 June 2005.

(iv)          $52,502 in the year ending 30 June 2006.

(v)           $90,853 during the period 1 July 2006 to 30 June 2007.

(vi)          $119,998, and a car allowance of $7,793, during the period 1 July 2007 to 30 June 2008.

(vii)         $189,875 during the period 1 July 2008 to 30 June 2009.

(viii)        $186,987, and Reportable Employer Superannuation Contributions of $16,828, during the period 1 July 2009 to 30 June 2010.

(ix)          $253,985 during the period 1 July 2010 to 30 June 2011.

(x)           $253,985 during the period 1 July 2011 to 30 June 2012.

(xi)          $102,284 during the period 1 July 2012 to 30 June 2013.

(xii)         $152,929 during the period 1 July 2013 to 30 June 2014.

(f)           Under the heading ‘Pre‑employment discussions with Silverhorse’:

25) The 60% Shareholder’s CFO and lawyer (Anthony Connor) was tasked with due diligence on Silverhorse’s behalf.

26) Silverhorse, and Mr Connor, had access to and was given a copy of Luceo’s books (electronically).

27) The process we had to follow to complete the agreement involved a restructure of Luceo to allow me to act on behalf of Luceo shareholders.

28) I held 90% of the shares in Luceo.

29) We had to devise processes to:

a) transfer the clients to the new entity;

b) employ existing staff in the new entity; and

c) transfer of entitlements.

30) A compensatory financial transfer was made for the entitlements of the employees other than me.

31) All employees were recognised as being part of an ongoing business with entitlements recognised.

32) There was some consideration given to Silverhorse engaging me as an independent contractor, but that approach was abandoned in favour of direct employment.

33) Silverhorse appointed me as its CEO in March 2014.

34) There was no interruption to my employment. I transferred directly from Luceo to Silverhorse.

(g)           Under the heading ‘Accruals and prior service’:

38) I recall Silverhorse asking for information about leave accruals for Luceo staff that had transferred to Silverhorse.

39) I responded by listing the names and accruals of the former Luceo staff, but I didn’t include my own accruals in my response.

40) At the time, I thought my answer properly reflected what was being asked of me.

41) When Silverhorse employed those Luceo employees, money changed hands as compensation.

42) I was in a different position. There’d been no payment asked of Luceo in connection with my transfer.

43) I reasoned that Silverhorse had already committed to taking on liability for me because, at the time of the transfer, they knew that I’d been with Luceo from the outset and they didn’t seek any compensation.

44) I answered as I did because there was a transfer of business from Luceo to Silverhorse. Silverhorse knew this or at least, I assumed that they knew. I made that assumption because they must have known that my service commenced when I began working for Luceo.

11      On 27 and 28 November 2023, Silverhorse filed witness statements for Jason Lenko Antunovich (Mr Antunovich), Anthony Luke Connor (Mr Connor), and Paul William Alexander Roberts (Mr Roberts).

12      Mr Antunovich gave evidence that:

15. Raymond did not raise with me or ever indicate to me, during our discussions or subsequently, that he was or had been an employee of Luceo, or had any employment entitlements with Luceo that might transfer across to Silverhorse. At the time of negotiations, Raymond told me he was the owner of Luceo. Raymond also said that Luceo had some minor shareholders involved, making up around 10% of the total shareholding.

16. During my negotiations with Raymond, we discussed key Luceo employees transferring to a new entity (being Silverhorse) once it was set up, and the new entity taking on the employment entitlements of these employees that had previously been accrued at Luceo. The key Luceo employees were [Graham Richardson] and [Steven Pearson], who were programmers at Luceo at the time and helped run the technology. Raymond was not discussed as being a key transferring Luceo employee. No money was exchanged between Luceo and Silverhorse for Silverhorse assuming these liabilities. …

19. If Raymond was an employee of Luceo and he expected his employment entitlements to transfer from Luceo to Silverhorse, I would have expected him to raise this with me as he did for the other Luceo employees because it would have been relevant to our negotiations, but he did not.

20. If Raymond had disclosed that he had employment entitlements with Luceo, especially over 10 years worth of long service leave entitlements, we might have had to structure the deal differently, as the new entity would probably have had to take those entitlements on. If I thought the new entity would have to take on such a significant entitlement, it might have changed the whole aspect of the deal going forward. It is a risk that we would have had to evaluate at that time, but it never came up, so it did not impact the deal. …

33. In the course of reviewing emails for preparing for this witness statement, I have read an email from Raymond to Pia Treloar dated 11 April 2014, after he had commenced with Silverhorse, in response to Pia’s proposed split for Raymond’s remuneration as an employee and as a director of Silverhorse. In that email, Raymond says that payment had been almost $250K including super for base salary and about $50K in directors’ fees paid through a trust. This email is in JLA-004. My understanding of Raymond’s response was that he was trying to minimise the tax in his remuneration arrangement with Silverhorse. I did not understand Raymond’s email to mean that he had been an employee of Luceo. I was comfortable for Raymond to tell Silverhorse how he wanted his remuneration and engagement to be structured, so long the arrangement covered essential matters such as restraints and confidentiality.

13      The emails referenced in Mr Antunovich’s witness statement [33] state the following:

(a)           Email from Ms Treloar to Mr Weeda sent 10 April 2014, 4:04pm:

Hi Raymond,

Further to your discussions with Jason and then further to the discussion regarding salary split between directorship and salary please see below the breakdown.

Directorship - $60k pa to be paid to trust

Salary - $190k pa inclusive super to be paid to individual

KPI Bonus - Discretionary per the board

Mobile - Reimbursed monthly

Parking - Reimbursed Monthly

Expenses - Reimbursed as required

Please confirm this is your understanding prior to the processing of this month’s payroll and for us to complete and finalise the contract and Director Agreement.

(b)           Email from Mr Weeda in reply to Ms Treloar’s email, sent 11 April 2014, 8:03am:

Hi Pia,

Payment has been (apart from the disastrous 2012) almost $250k inc super for base salary and about $50k in “Director’s” fees paid via our trust. Home internet, phone etc. was also included but we can leave it at the mobile.

14      Mr Connor gave evidence that:

24. In the course of my inspection of Luceo’s documents, I did not see any employment records for Raymond, such as contracts of employment, leave records or entitlements, or anything that would indicate Raymond may be an employee of Luceo. Raymond did not tell me he was an employee of Luceo. …

29. To ensure the IP rights could properly be granted to Silverhorse, I was involved in drafting an amended shareholders agreement for Luceo, which Raymond ultimately negotiated with Luceo’s other shareholders. I spent a lot of time on the shareholders’ agreement, and during that process, it never came up that Raymond may have been an employee of Luceo, nor was it referred to in Luceo’s shareholders agreement. …

40. I recall that for at least several months after March 2014, Raymond was undecided about whether he wanted to be engaged by Silverhorse as a contractor or an employee. My understanding is that there was no prior agreement between Raymond and Jason as to what capacity Raymond would join Silverhorse in. That decision was left up to Raymond. …

42. During this period, I prepared both employment agreements and contractor agreements for Raymond. I also had various discussions with Raymond around this time about whether he wanted to be an employee or a contractor of Silverhorse. Raymond did not discuss with me any employment entitlements he may have had with Luceo during these discussions, nor was it included in the contracts I drafted. …

44. At some time between March and June 2014, I asked Raymond what he wanted his engagement to be at Silverhorse, and I understood from that conversation that he was leaning towards being a contractor. I suggested to Raymond that he should seek tax advice on the matter because a contractor arrangement might not be right for his role at Silverhorse.

45. In around February or March 2014, Raymond was asked to provide entitlement balances from Luceo for the transferring Luceo employees. I cannot recall whether it was Pia or me who asked for these records, but I am confident that Raymond was asked as it was a material disclosure for the deal. Raymond only provided leave balances for two Luceo programmers who were transferring to Silverhorse – Graham Richardson (Graham) and Steven Pearson (Steven). He did not provide Silverhorse with any Luceo entitlement balances for himself. There was no exchange of money for Silverhorse taking on the employment liabilities for Graham and Steven. …

47. Raymond decided at some point after June 2014 that he wanted to be an employee of Silverhorse, rather than a contractor. This was entirely Raymond’s decision.

15      Mr Roberts gave evidence that:

12. In preparation for this witness statement, I have searched for and reviewed Silverhorse and OGS’s business records relating to Luceo. The Luceo documents in OGS’s files include licence agreements, commercial agreements, its company constitution, its shareholders agreement and a couple of purchase orders. Within OGS’s records is a copy of Luceo’s 2012 annual financial report prepared by Caffarelli & Associates [PWAR-001], which I have reviewed. No provision for long service leave has been included in this financial report. If a company has a liability for long service leave, especially if it is significant, my experience is that this is a liability that will be referred to in the financial report.

The parties’ contentions

16      On 1 December 2023, Mr Weeda filed an Outline of Submissions, contending:

(a)           A transfer of business took place between Luceo and Silverhorse, and for the purposes of long service leave, his employment with Luceo since 1 September 2002 was treated as employment with Silverhorse.

(b)           On 31 May 2022, when his employment with Silverhorse terminated, he had accumulated 19 years and 272 days of continuous employment, valued at $91,915.59 (based on 650.37 hours of accrued long service leave multiplied by his hourly rate of $141.3287). Of this, Silverhorse paid to him $38,399.02.

17      On 5 December 2023, Silverhorse filed an Outline of Submissions, contending:

(a)           It is accepted that the relevant part of Luceo’s business was transmitted to Silverhorse for the purposes of the LSL Act, such that if Mr Weeda was an employee of Luceo prior to his employment with Silverhorse, then Silverhorse would be regarded as his employer for the entire duration of his continuous employment with both Luceo and Silverhorse.

(b)           Mr Weeda has failed to establish on the balance of probabilities, and has not provided any evidence sufficient to satisfy the Court, that:

(i)           He was employed by Luceo.

(ii)          His employment with Luceo commenced on 1 September 2002.

(iii)         His employment with Luceo was continuous until his employment with Silverhorse.

(iv)          He had no absences from work during the period after 1 September 2002 other than as provided in s 6(1) of the LSL Act.

(v)           The periods from 1 September 2002 to 28 February 2014 during which he was absent were for reasons described in s 6(3) of the LSL Act.

(c)           Mr Weeda has never produced any of the following information or documentation as evidence of his employment status with Luceo:

(i)           An employment contract.

(ii)          Any documentation relating to the nature of his engagement or relationship with Luceo.

(iii)         Payment history indicating the regular payment of a salary.

(iv)          Workers’ compensation insurance records.

(v)           Any employment records, other than PAYG summaries (which were only produced for the first time as attachments to Mr Weeda’s affidavit filed on 11 September 2023).

(vi)          Detail of the work undertaken and reward/remuneration provided for any work undertaken for Luceo from September 2002 to February 2014.

(d)           The PAYG summaries attached to Mr Weeda’s affidavit do not confirm his employment with Luceo, or the period of his employment. Instead, they only indicate that he received payment of the specified amount during each relevant financial year.

(e)           Mr Weeda’s silence about being an employee of Luceo and about Silverhorse owing to him a long service leave liability prior to his employment with Silverhorse, speak against Mr Weeda having been an employee of Luceo. This includes his silence during the negotiations leading to Luceo’s business being transferred to Silverhorse, and during his tenure as Silverhorse’s CEO and director.

(f)           It is reasonable to infer that, had Mr Weeda been an employee of Luceo, he would have mentioned this, or provided documents to this effect, during the course of negotiations from 2013 to 2014 when he provided details of Luceo’s other employees’ status.

(g)           As part of the due diligence process, Mr Weeda produced a copy of Luceo’s financial report for the year ended 30 June 2012. As the sole director of Luceo, Mr Weeda was responsible for ensuring employee entitlements were provisioned and that the company’s financial reports and records were accurate. There is no provision for long service leave in these statements, despite Mr Weeda’s claim that by 30 June 2012, he would have been an employee of Luceo for nine years and nine months. Therefore, the financial reports support either that he was not an employee of Luceo, or that he had not been an employee since 1 September 2002, or that he had exhausted his long service leave entitlements.

(h)           Mr Weeda’s silence continued during the period when he was the CEO of Silverhorse, a role that required him to provide accurate financial reports to the Board, including provisioning for long service leave. Mr Weeda’s silence continued even after issuing a report to the Board of Silverhorse in October 2021, which detailed a significant adjustment to Silverhorse’s provision for long service leave on account of a former Luceo employee ceasing permanent employment with Silverhorse.

(i)           Mr Weeda was the sole individual who could have informed Silverhorse that he was an employee of Luceo. A reasonable person, and particularly a reasonable executive director or CEO, would have disclosed this information during the pre‑transaction negotiations, or if overlooked at that time, upon realising that Silverhorse did not have an adequate provision for long service leave in its balance sheet. Mr Weeda failed to take such action.

(j)           Therefore, Mr Weeda was only a director and shareholder of Luceo. He was not an employee. He did not have continuous employment with Luceo for the period between 1 September 2002 until starting employment with Silverhorse.

The trial

18      At the trial, Mr Weeda sought and was granted leave to give further evidence that was responsive to the witness statements and Outline of Submissions filed by Silverhorse subsequent to Mr Weeda filing his affidavit. Mr Weeda gave the following further evidence:

(a)           His employment with Luceo commenced on 1 September 2002.

(b)           There were no interruptions to his employment with Luceo for any reason from 1 September 2002 to 28 February 2014.

(c)           He took annual leave but did not take personal leave.

(d)           Other than annual leave, there were no other absences.

(e)           In response to Mr Connor’s witness statement [45] (at [14] above) that when requested to provide the leave balances for the transferring Luceo employees and only providing those for Mr Richardson and Mr Pearson:

(i)           Pia Treloar (OGS’ CFO supporting Mr Connor with the due diligence) understood him to be an employee of Luceo because:

(A)     At one point, Ms Treloar asked him directly, ‘Are you an employee of Luceo? What’s the arrangement?’; and

(B)     In 2014, in the period leading up to the transmittal of business, Luceo’s MYOB books in electronic format were provided to Ms Treloar.

(ii)          As OGS also used MYOB, Ms Treloar could review all of Luceo’s payroll ‘including mine’. When Ms Treloar requested the leave balances, she was only asking about the other employees.

(f)           In response to Mr Connor’s witness statement [46] that while Mr Connor does not recall discussing the transferring Luceo employees with him, Mr Connor recalls noting down the transferring employees and that he was not one of them: (ts 16):

From my position, they – I – the understanding was there, that I was an employee of, um, Luceo this entire period. Ah, Mr Antunovich suggested I go and research alternative ways to be employed, you know, perhaps as a contractor, to minimise tax exposure. Um, I went to my accountant and, ah, she said, ‘You’re really only employed by one person, so there’s no benefit. You should continue on the same basis that you were with Luceo’.

(g)           In response to a question from his counsel as to whether he was asked to indicate whether he was an employee of Luceo, and if so, who he provided that information to: (ts 17):

I provided that information to Pia, because she asked. Um, I can’t recall exactly how the conversation went with Jason, but, um, based on the fact that he said, ‘You should go look at alternative ways’, I assumed he understood that I was, ah, an employee of Luceo.

19      Under cross‑examination, Mr Weeda stated that:

(a)           Luceo started with himself, Andy Barnes and Matt Callahan as directors. Mr Callahan resigned as a director in March 2004 and Mr Barnes resigned as a director in November 2005. From that time, he has been the sole director of Luceo, although Mr Callahan and Mr Barnes remain shareholders.

(b)           He and his wife are joint shareholders in the majority of Luceo’s ordinary shares.

(c)           When Andy Barnes was a director, Mr Barnes was responsible for the day‑to‑day management of Luceo.

(d)           The reference to ‘one‑man‑band’ in his affidavit [11], refers to himself. At the time, he owned 90% of the business.

(e)           He was aware Mr Connor was conducting a due diligence process on Luceo. He does not recall Mr Connor requesting details of Luceo’s employees. He thinks it was Ms Treloar who made the request.

(f)           In relation to employee liabilities, he sent an email about Mr Richardson and Mr Pearson. He gave ‘access to all of the documents I had with respect to Luceo’ and ‘also a copy of the MYOB … accounting file so they could research for themselves’: (ts 21).

(g)           He assumes Mr Connor and Mr Antunovich knew he was employed by Luceo because ‘they had a copy of the MYOB accounting system. In that system, I was treated as an employee, hence gave rise to the PAYG summaries’: (ts 21).

(h)           PWAR-001, Luceo’s 2012 financial report, makes no provision for long service leave. His accountant used the MYOB accounts to produce this financial report. He signed the director’s declaration, and he provided a copy of this financial report to OGS during the negotiations with them.

(i)           In relation to his affidavit [30] and [41] that a ‘compensatory financial transfer was made for the entitlements of the employees other than me’ and ‘[w]hen Silverhorse employed those Luceo employees, money changed hands as compensation’: Luceo paid approximately $27,000 to ‘the new entity’: (ts 24).

(j)           There was no provision for the transfer of money in the MOU. The transfer occurred after the MOU was signed. He no longer recalls the reason for the transfer. The transfer did not account for his long service leave liability because ‘when Pia asked about [his long service leave liability and annual leave and any other liabilities], I’d said that the new entity can take … ownership of that, because of what I was bringing to the table’. He said this to Ms Treloar during the due diligence process: (ts 25).

(k)           The PAYG summaries for the year ended 30 June 2012 and 2013 show a reduction from $253,985 to $102,284 because: (ts 26):

Um, in a small business such as Luceo, we run on projects. So we had a number of projects running at that particular time. And, um, we tend to service the projects, then they come to a natural end, because they are construction and commissioning projects. And then you have to wait for the next ones to start. And because I was sales as well as technical support, I couldn’t really juggle the same thing all the time, so we had ups and downs in revenue. So when there was a – you know, in good years, I paid myself what I could, and then in not so good years, I made sure that everyone else got paid and I just took what I could.

(l)           He was paid monthly, but the amount ‘differed based on how the business was going’: (ts 26).

(m)          As at late March 2014, he had not decided whether he wished to be employed by, or contracted to, Silverhorse: (ts 28).

(n)           From February 2014 to June 2014, he was discussing with Silverhorse whether he would be an employee or a contractor of Silverhorse: (ts 29).

(o)           He took responsibility for negotiating Silverhorse’s employee contracts for Mr Richardson and Mr Pearson. He was across all of the issues for these employees: (ts 30).

(p)           In his capacity as Silverhorse’s CEO, he was responsible for Silverhorse’s financial management. This included presenting to the Board about Silverhorse’s performance, approving financial reports, and signing annual financial reports. For the monthly reports, he would meet with Mr Roberts monthly, for a minimum of 15 minutes, to review and discuss the draft report. When reviewing the draft report, he focused on revenue and costs and ensured the tax was represented correctly. He did not bring up his long service leave liability with Mr Roberts.

(q)           During his employment as Silverhorse’s CEO, he did not turn his mind to the provision for his long service leave: (ts 32).

(r)           PWAR‑004 is an example of the monthly management reports he provided to the Board. The report states that it is prepared by ‘Raymond Weeda / Paul Roberts’ and approved by ‘R Weeda’. The Balance Sheet at 31 October 2021 states, ‘Provision for Long Service Leave’ as $69,338 at 31 August 2021 and $40,583 at 30 September 2021. This reduction was due to Mr Richardson using up his long service leave entitlements: (ts 33).

(s)           This is reflected on the previous page under the heading ‘Expenses Comments’ as ‘LSL accrual correction of $29k’. His salary was approximately $100,000 more than Mr Richardson’s salary. Mr Richardson was employed with Luceo approximately five years after his own employment with Luceo commenced. He did not interrogate whether $40,583 was an adequate provision for Silverhorse’s long service leave obligations: (ts 34).

(t)           Caffarelli & Associates prepared Luceo’s 2012 financial report. They were Luceo’s and his personal accountants; he brought them in as the accountants for Silverhorse. They prepared Silverhorse’s financial report for the year ended 30 June 2015 (PWAR‑005). PWAR‑005 does not contain a provision for long service leave. This does not mean PWAR‑005 is consistent with there being no long service leave entitlement for an employee with more than 10 years of accrued continuous employment because ‘you don’t need to accrue for that liability. You just have to have the ability to pay it when it becomes due’: (ts 35).

(u)           PWAR‑005’s Profit and Loss Statement states that the ‘Long Service Leave’ expense in 2015 was $5,625. He is unsure but thinks this payment must have been for Mr Pearson: (ts 35).

(v)           He interrogated the breakdowns in Silverhorse’s balance sheets, but not the breakdown for long service leave. In 2021, he discussed with Mr Roberts the long service leave payable to Mr Richardson upon Mr Richardson’s redundancy but did not interrogate the provision for long service leave by reference to all employees including himself.

20      Upon re‑examination, Mr Weeda clarified that:

(a)           When he referred to ‘one‑man‑band’, he meant that he was personally responsible for Luceo’s revenue generation, ensuring the technology functioned properly and that clients were satisfied, despite the fact that Luceo had other employees.

(b)           The statement in his Further and Better Particulars that his employment with Luceo commenced in 2004 is incorrect. The evidence given by him at the trial that his commencement date with Luceo was 1 September 2002 is correct.

(c)           In preparing Luceo’s accounts with Pina Caffarelli, Luceo’s accountant, he did not discuss with them whether there ought to be provisions for long service leave. Caffarelli & Associates came on board as Silverhorse’s accountants at the outset. He did not have any discussion with them about the accounting rules relating to provisions.

(d)           Prior to him sending the email to Ms Treloar regarding the leave liabilities for Mr Richardson and Mr Pearson, he had the following exchange with Ms Treloar: (ts 38):

She said, ‘Well, you know, what are we going to do about your liability?’

And I said, ‘Well, Silverhorse just has to wear it’.

21      Under cross‑examination, Mr Connor stated that:

(a)           He was involved in the due diligence that preceded Silverhorse’s acquisition of some of Luceo’s business. As part of the due diligence, he requested the production of employment records, which were produced to Ms Treloar.

(b)           OGS had a folder of all documents accumulated as part of the due diligence. He saw all the documents in that folder. He did not see a MYOB file, nor payroll records in that folder.

(c)           It is possible that employment records were provided that Ms Treloar saw and that he did not. He was not aware of Ms Treloar having any records that he did not have because he assumed that all documents were going into the OGS folder. It is possible that Ms Treloar saw records that are not in the folder.

(d)           Luceo’s employment records were a material consideration. He was able to move forward with the due diligence without viewing the employment records personally because amongst the documents he had received from Ms Treloar was a statement of staff entitlements. He had asked Ms Treloar whether the statement was correct, and she confirmed that it was: (ts 51).

(e)           He was appointed a director of Silverhorse on 11 March 2014 and was seeing Silverhorse’s financial records from that point onwards.

(f)           As a newly formed company, Silverhorse was using the pay services of a third‑party supplier. There was no ability to input contractor details within the pay service. Therefore, Mr Weeda was to be employed by Silverhorse until he determined the status of his engagement.

(g)           He did not know, or have any dealings with, Mr Weeda before late 2013 and had no knowledge of Mr Weeda’s working arrangement with Luceo prior to that time.

22      Under re‑examination, Mr Connor stated that:

(a)           He and Mr Weeda had numerous discussions about whether Mr Weeda would be employed by, or engaged as a contractor to, Silverhorse. Mr Weeda had originally wished to be engaged as a contractor. Through his experience, he had said to Mr Weeda that there may be complications with Mr Weeda being engaged as a contractor because of the 80/20 rule and requested Mr Weeda to take independent tax advice.

(b)           He is not aware whether Mr Weeda took independent tax advice, but he did put the request for Mr Weeda to take independent tax advice in writing because of the material concerns it raised for both the company and Mr Weeda.

(c)           As a director of Silverhorse, he preferred that Mr Weeda did not create a liability for Silverhorse, which was one of his concerns if Mr Weeda was to be contracted to Silverhorse.

(d)           Mr Weeda gravitated between being employed by, and being contracted to, Silverhorse. This resulted in him preparing two different contracts: an employment contract and a contractor agreement, for Mr Weeda to then decide on his status. From memory, Mr Weeda did not decide on his status until mid‑2014.

(e)           Ms Treloar did not tell him she had any other information relating to Mr Weeda’s employment with Luceo. Ms Treloar did not tell him that Mr Weeda was employed by Luceo. Ms Treloar was the person at OGS who set up the employment structure for Silverhorse.

23      Under cross‑examination, Mr Roberts stated that:

(a)           He became involved with Silverhorse in 2015. Prior to that time, he did not know, nor have any contact with, Mr Weeda or Luceo.

(b)           He was involved with Mr Weeda in preparing the Board report and financial reports, and on average spent 15–30 minutes with Mr Weeda discussing specific questions about the reports.

24      Under re‑examination, Mr Roberts stated that:

(a)           Mr Weeda always had questions about the draft Board reports. The level of detail of Mr Weeda’s questions depended on the relevant issue at the time. They often discussed the debtors.

25      At the trial, Mr Antunovich gave the following further evidence:

(a)           At the time of his negotiations on behalf of OGS with Mr Weeda for Mr Weeda to be appointed as the CEO of the new entity, his expectation and preference was for the CEO to be an employee, but he did have discussions with Mr Weeda that Mr Weeda would be able to look at different ways that would suit Mr Weeda’s requirements. Mr Weeda did not express to him a preference.

26      Under cross‑examination, Mr Antunovich stated that:

(a)           No payment was made for the transfer of Mr Richardson’s and Mr Pearson’s employment.

(b)           His first involvement with Mr Weeda, and with Luceo, was around 2013. He has no firsthand knowledge of Luceo’s engagement with Mr Weeda going back to 2002.

(c)           He was responsible for bringing in Mr Connor to undertake the due diligence. He had known Mr Connor for many years and had worked with Mr Connor on a number of deals over that time and knew Mr Connor would undertake the due diligence of Luceo diligently.

(d)           He does not know whether Mr Connor saw any of Luceo’s employment‑related documents.

(e)           Ms Treloar was his CFO, and he had discussions with her. As part of the due diligence process, he was aware that Ms Treloar reviewed the initial contracts and the transfer of the two employees involved, including what that would entail. He could not specify the exact documents she examined. However, since Silverhorse had not yet been set up, he surmised that any documents Ms Treloar received would have been saved on OGS’ server.

27      In closing submissions, counsel for Mr Weeda stated:

(a)           Evidence of whether Mr Weeda was Luceo’s employee necessarily and exclusively comes from Mr Weeda. Silverhorse’s evidence was that its witnesses had no knowledge of Mr Weeda’s service arrangements with Luceo.

(b)           Mr Weeda’s evidence was that he became an employee of Luceo on 1 September 2002 following a capital raising and Luceo becoming financially capable of employing him. After that, he worked as Luceo’s most senior person, with ultimate responsibility, performing a broad role, essentially undertaking whatever needed to be done.

(c)           Mr Weeda’s evidence was that Luceo’s capacity to pay him rose and fell and he adjusted his earnings to fit Luceo’s financial capacity, which is reflected in the PAYG summaries.

(d)           Under cross-examination, Mr Weeda gave viva voce evidence that he provided Ms Treloar with a MYOB file which contained Luceo’s payroll records. Mr Weeda could have, but did not, bring the MYOB file to court.

(e)           Mr Weeda’s evidence that he discussed with Ms Treloar that he was an employee of Luceo, was not raised in his affidavit. Nor was it raised at any time prior to the trial. Mr Weeda could have called Ms Treloar to give evidence about the payroll records that she looked at as OGS’ CFO.

(f)           Mr Weeda made the decision that the PAYG summaries and his evidence as the only person who was there, is likely to be compelling enough.

(g)           Whilst PAYG summaries are issued to employees and others, Mr Weeda’s evidence is that he was employed by Luceo and the PAYG summaries show tax being deducted from his salary.

(h)           The only person who was there, who knew and was called, was Mr Weeda, who says he was Luceo’s employee. There is no evidence that contradicts that proposition.

(i)           There is no evidence that Mr Weeda behaved dishonestly.

(j)           Mr Weeda may be criticised for not disclosing his employment status to Silverhorse in the two‑month window between Silverhorse being created in January 2014 and Mr Weeda commencing as its CEO in March 2014. However, Silverhorse should have known that Mr Weeda was an employee of Luceo from the comprehensive due diligence undertaken of Luceo.

(k)           The PAYG summaries and Mr Weeda’s evidence are consistent with him being an employee of Luceo.

(l)           There is no evidence that proves that Mr Weeda was not an employee of Luceo.

(m)          Silverhorse’s witnesses’ evidence is only to the effect of what they did not know, and from that, they draw the inference that Mr Weeda was not an employee of Luceo.

(n)           Silverhorse, as Mr Weeda’s employer, had the responsibility of knowing what its legal liabilities were when taking on a transferring employee. The burden of telling them was not on Mr Weeda. Unless Mr Weeda lied to them, and there is no evidence of that, then Silverhorse had every way of knowing that Mr Weeda was an employee of Luceo and no excuse for not knowing that Mr Weeda was an employee of Luceo.

(o)           It was open for Mr Weeda to attempt to produce corroborating evidence in the form of additional records from Caffarelli & Associates, or to call them to produce any records that they had to court, bearing in mind that they may have an obligation to retain records for a longer period than Luceo was required to.

(p)           Mr Weeda could have, but opted not to, take steps to bolster his case, such as producing bank statements showing he was receiving payments from Luceo and their frequency.

(q)           Mr Weeda’s evidence in court was that he worked for Luceo without any interruption that would break his service or that would not count as service. There was no cross‑examination on this point, so if Mr Weeda’s evidence is accepted, then it should be found that his employment commenced on 1 September 2002 and continued uninterrupted and continuous until 28 February 2014.

(r)           Of relevance are the long service leave spreadsheets which are PWAR‑006, PWAR‑007, PWAR‑009, PWAR‑011, PWAR‑013 and PWAR‑015, noting that ‘Directors are excluded’. This indicates that Mr Weeda’s long service leave entitlements would not be included in these spreadsheets, as when Mr Roberts was preparing the spreadsheet he did not have regard to anyone who was also a director, as Mr Weeda was. Mr Weeda is listed on PWAR‑015 with the notation ‘N/A’. These documents indicate that Silverhorse was not paying attention to Mr Weeda’s long service leave accruals because they were deliberately excluding him from their calculations because he was a director.

(s)           PWAR‑001 (Luceo’s 2012 financial report) records ‘Salaries’ paid during the year ended 2012 of $524,246.52 and 2011 of $462,531.19. These figures exceed the salaries paid to Mr Richardson and Mr Pearson (of circa $100,000 each). The Court should infer that these figures include the salary paid to Mr Weeda.

(t)           In an email within JLA‑004 (at [13(b)] above), Mr Weeda refers to receiving almost $250,000 plus $50,000 in director’s fees (JLA‑004 Email). Mr Weeda was not cross‑examined on this email. The email on its face refers to a disastrous 2012. It is unclear whether the reference to 2012 is to a calendar or financial year.

(u)           The 2012 PAYG summary indicates Mr Weeda received a gross payment of $253,985 which appears consistent with what he stated in the JLA‑004 Email regarding his salary.

(v)           Mr Weeda’s statement of his Luceo salary in the JLA‑004 Email sent in March 2014 is consistent with his claim that he was a Luceo employee, consistent with Luceo’s financial report, and consistent with the PAYG summaries.

(w)          In relation to Mr Weeda’s statement of receiving director’s fees in the JLA‑004 Email but Luceo’s financial report not containing any reference to him receiving director’s fees, it may be that the financial report is incomplete or that Mr Weeda was mistaken about receiving director’s fees. Director’s fees are not salary and there is no evidence supporting Silverhorse’s contention that Mr Weeda received director’s fees that are included in the ‘salary’ category of Luceo’s 2012 financial report.

(x)           Whilst Mr Weeda states in the JLA-004 Email that the director’s fees were paid, Luceo’s 2012 financial report does not disclose that, and there is no evidence to explain as to why they do not disclose it.

28      In closing submissions, counsel for Silverhorse stated:

(a)           If the Court finds that Luceo employed Mr Weeda from 1 September 2002 to 28 February 2014 without any interruption, then Silverhorse does not dispute the quantum of the long service leave entitlement that is claimed by Mr Weeda.

(b)           For Mr Weeda to succeed, he must establish on the balance of probabilities that he was Luceo’s employee and received payments from Luceo in that capacity and not as a director, and that he was continuously employed for the period claimed within the meaning of the LSL Act.

(c)           Mr Weeda asserts that he was the only person in the position to know of his employment status with Luceo. If this assertion is correct, the fact that Mr Weeda did not bring his employment status with Luceo to Silverhorse’s attention strongly suggests he was not an employee of Luceo.

(d)           However, it is incorrect to say that Mr Weeda was the only person who could know whether he was an employee of Luceo. Until 2005, there was another co‑director, who remains a shareholder (Andy Barnes) who could have given evidence of Mr Weeda’s employment. Similarly, there was material accessible to Mr Weeda’s accountant.

(e)           Mr Weeda admitted in his Response to Counterclaim and in his affidavit that he did not inform Silverhorse that it was liable for his long service leave accrued with Luceo and that he omitted his own leave accruals in the details provided to OGS. Mr Weeda asserted at the trial for the first time, without any substantiating documents, that he provided information of his employment in the form of a MYOB file to Ms Treloar, in circumstances where:

(i)           Mr Weeda did not provide disclosure of documents in July 2023 as required by Court order; and

(ii)          The only documents Mr Weeda has provided in the proceedings are the PAYG summaries attached to his affidavit.

(f)           In relation to the MYOB file, Mr Connor confirmed that the process adopted during the due diligence was to save material provided by Luceo into a folder maintained by OGS. Mr Connor was unaware of Luceo having provided a MYOB file and was not told by Ms Treloar that such a file had been provided. OGS’ Luceo folder does not contain a MYOB file.

(g)           Mr Weeda stated that Luceo’s financial reports were prepared using the MYOB file. Luceo’s 2012 financial report does not provision for any long service leave liability, which would be expected to be recorded in the financial report if the MYOB file did in fact record that Mr Weeda was an employee who was continuously employed from 1 September 2002.

(h)           The weight of evidence before the Court does not substantiate Mr Weeda’s new evidence regarding the MYOB file, establishing his status as an employee.

(i)           Silverhorse had not contacted Ms Treloar with a view of asking her to give evidence in the proceedings and did not take any steps to engage with her following Mr Weeda giving new evidence at the trial about his interactions with her.

(j)           The PAYG summaries do not confirm whether payments were received by Mr Weeda in his capacity as a company director or as an employee, as the Taxation Administration Act 1953 (Cth) provides that PAYG summaries can be used for both purposes.

(k)           Further, having located the PAYG summaries, it begs the question why historical additional employment evidence has not been provided by Mr Weeda in the proceedings.

(l)           Mr Weeda’s evidence that Luceo paid $27,000 to the new entity for Mr Richardson’s and Mr Pearson’s leave liabilities is unsupported by any other evidence and directly contradicted by the evidence of Mr Connor and Mr Antunovich, and by PWAR‑005 (Silverhorse’s 2015 financial report), specifically PWAR‑005’s Profit and Loss Statement and Notes to the Financial Statements.

(m)          PWAR‑016 (a balance sheet Silverhorse provided to PayPac in 2014), produced when Mr Weeda was CEO, is limited to Mr Richardson and Mr Pearson. It details Mr Richardson’s and Mr Pearson’s commencement dates with Luceo, as November 2010 and February 2009 respectively.

(n)           At no time during the negotiations with Mr Connor and Mr Antunovich did Mr Weeda raise his employment status with Luceo, despite being requested to provide employee details as part of the due diligence so that existing liabilities could be calculated. At no time during Mr Weeda’s employment as Silverhorse’s CEO, when Mr Weeda prepared Board presentations, particularly after the significant payment to Mr Richardson in 2021, and given his responsibility as Silverhorse’s CEO for financial management, did Mr Weeda raise his employment with Luceo. Being a diligent CEO and experienced in business, Mr Weeda should have identified the discrepancy in Silverhorse’s long service leave provisions. Silverhorse says Mr Weeda’s silence reflects that Mr Weeda did not consider that he was entitled to long service leave.

(o)           Mr Weeda signed Luceo’s and Silverhorse’s financial reports and declared that they were a fair presentation of the company’s financial position. The accounts were prepared with the assistance of Caffarelli & Associates. The lack of provision for long service leave suggests that Caffarelli & Associates knew that Mr Weeda was not an employee.

(p)           In the JLA‑004 Email, Mr Weeda represents having received from Luceo in 2012 almost $250,000 plus $50,000 in director’s fees. The PAYG summaries substantiate that Mr Weeda’s representations of the amounts received from Luceo in the JLA-004 Email are inaccurate. There is also a discrepancy between Mr Weeda’s assertion of receiving director’s fees and Luceo’s financial report (PWAR-001) which does not refer to director’s fees having been paid to Mr Weeda.

(q)           The PAYG summary for 2012 refers to Mr Weeda receiving a gross payment from Luceo of $253,985.

(r)           PWAR‑001 refers to ‘Employee benefits expenses’ of $570,876.58. This does not confirm Mr Weeda’s status as an employee because there is no provision for other payments Mr Weeda was receiving at the time as a director, and it may be that those director’s payments were incorporated within the provision for employee benefits.

(s)           The JLA‑004 Email is dated 11 April 2014, after Silverhorse was established and Mr Weeda was appointed as its CEO. The JLA‑004 Email is addressed to Ms Treloar and copied to Mr Antunovich. Mr Antunovich states in his witness statement [33] that by the JLA‑004 Email, he understood Mr Weeda was attempting to minimise the tax on his financial arrangement with Silverhorse and did not understand Mr Weeda to mean he had been an employee of Luceo.

(t)           In the JLA‑004 Email, Mr Weeda refers to having received $300,000 from Luceo in 2012, which was an anomaly that he describes as a ‘disastrous 2012’.

(u)           The ‘greater emphasis’ is on PWAR‑001 and the lack of provision for long service leave.

(v)           Mr Weeda gave evidence at the trial that there is no legal requirement for PWAR‑001 to make provision for long service leave. This flies in the face of the director’s declaration that accompanies every financial report, which is that there is a fair presentation of the company’s financial performance within the report.

(w)          At the time, Mr Weeda’s long service leave accrual was approximately $40,000, which would have significantly impacted Luceo’s balance sheet and fair presentation of Luceo’s financial performance. Particularly as PWAR‑001 records that Luceo posted a loss and had accumulated losses totalling $189,574.68 in 2012, meaning Luceo would have struggled to pay the liability had Mr Weeda terminated his employment at that time, and therefore ought to have been provisioned for in Luceo’s financial report.

(x)           The evidence is that Mr Weeda did not decide to be employed by, or be engaged with, Silverhorse until June 2014. Mr Antunovich’s evidence was that his preference was for a CEO to be an employee. If Mr Weeda was an employee of Luceo, he would have readily confirmed that he should be employed by Silverhorse. Mr Weeda did not confirm his intention to be an employee of Silverhorse for almost four months.

(y)           In all the circumstances, on the balance of probabilities, Mr Weeda was not Luceo’s employee, and this is the reason why Mr Weeda did not raise his employment with Luceo with OGS or Silverhorse prior to his resignation from Silverhorse in April 2022.

(z)           There is a discrepancy between Mr Weeda’s Originating Claim filed on 27 October 2022 and Mr Weeda’s Further and Better Particulars filed on 13 March 2023 concerning the date he claims his continuous employment with Luceo commenced, which has not been adequately explained. Further, Mr Weeda has not produced any evidence to substantiate his claim that his employment with Luceo commenced on 1 September 2002.

(aa)         Mr Weeda’s continuous employment was challenged during cross‑examination by way of questions about the significant reduction in payments across PAYG summaries, which may indicate a break in employment. Mr Weeda stated that the difference was a result of Luceo’s financial performance, without any substantiating evidence justifying his explanation.

(bb)         The weight of evidence is insufficient for the Court to determine on the balance of probabilities that Mr Weeda was continuously employed by Luceo, or that the period of that employment was continuous from 1 September 2002.

Consideration

Issues for determination

29      By the trial, Silverhorse were no longer pursuing the Estoppel Argument (at [2(c)] above) or the Set Off Argument (at [2(e)] above).

30      Further, given Silverhorse’s concession in its Outline of Submissions regarding the transmission of business from Luceo to Silverhorse (at [17(a)] above), the parties agreed the remaining issues for determination are those set out in Silverhorse’s Outline of Submissions [17]. Namely, that for Mr Weeda’s claim to succeed, he needs to establish, on the balance of probabilities, that from 1 September 2002 to 28 February 2014:

(a)           He was Luceo’s employee; and

(b)           He had continuous employment with Luceo, with no absences from, or interruption to, his employment that would not count towards his period of employment with Luceo under the LSL Act.

Relevant principles

31      There was no dispute with Silverhorse’s Outline of Submissions [5] and [18] that:

(a)           The Court will need to decide, on the balance of probabilities, whether Mr Weeda was an employee of Luceo: Desai v Harman & Co Pty Ltd [2017] WAIRC 00742 [26].

(b)           In addition to establishing continuous service, Mr Weeda must also establish what leave was accrued in the period of continuous service, accounting for any periods of leave taken, particularly long service leave: Tweedie v Zenitas Healthcare Pty Ltd [2023] WAIRC 00732 [38].

32      There was also no dispute that as it was Mr Weeda’s claim, he had the onus of satisfying the Court as to the establishment of his claim.

33      In G v H (1994) 181 CLR 387 (G v H), 391–‍392, Brennan and McHugh JJ stated:

[W]hen a court is deciding whether a party on whom rests the burden of proving an issue on the balance of probabilities has discharged that burden, regard must be had to that party’s ability to adduce evidence relevant to the issue and any failure on the part of the other party to adduce available evidence in response. As Mason CJ, Deane and Dawson JJ explained in Weissensteiner v The Queen:

[I]t has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it.              (footnotes omitted)

34      In G v H, 402, Deane, Dawson and Gaudron JJ stated:

[I]t is well settled that, in the course of the ordinary processes of legal reasoning, an inference may be drawn contrary to the interests of a party who, although having it within his or her power to provide or give evidence on some issue, declines to do so. Thus, for example, there may sometimes be an inference in civil cases that the evidence, if called, would not assist that party’s case. And there may sometimes be an inference in criminal cases of ‘guilty knowledge’, in the sense of knowledge that the evidence cannot be explained in a way that is consistent with innocence. They are inferences that are to be drawn, if at all, in accordance with strict legal reasoning. In other cases, the failure to give evidence may result in more ready acceptance of the evidence for the other party or the more ready drawing of an inference that is open on that evidence.              (footnotes omitted)

35      Besanko J in Roberts‑Smith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555 [122]–[124] summarised the decisions relevant to the question of whether a court could be satisfied to the relevant standard from the evidence that was before the court:

122 In Ho v Powell [2001] NSWSCA 168; (2001) 51 NSWLR (Ho v Powell) Hodgson J (with whom Beazley JA agreed) made the following two points. First, Lord Mansfields’s maxim in Blatch v Archer (1774) 1 Cowp 63 at 65; (1774) 98 ER 969 at 970 that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted, may affect the assessment of matters which are relevant to whether the limited material before the Court is an appropriate basis on which to reach a reasonable decision. Secondly, the principle in Jones v Dunkel is a particular application of Lord Mansfield’s maxim. Hodgson JA said the following (at [14]–[16]):

14 There is a long-standing controversy whether the civil standard of proof requires a numerical probability in excess of 50 per cent (see Davies v Taylor [1974] AC 207 at 219), or belief amounting to reasonable satisfaction (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361‑362). My own opinion is that the resolution of the controversy involves recognition that, in deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision. I discussed this in some detail in an article published at (1995) 69 ALJ 731 (D H Hodgson, ‘The Scales of Justice: Probability and Proof in Legal Fact-finding’).

15 In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so: cf. 69 ALJ at 732-3, 736, 740. As stated by Lord Mansfield in Blatch v Archer (1774) 1 Cowp. 63 at 65 (98 ER 969 at 970): ‘… [A]ll evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted’. See also Azzopardi v The Queen (2000) 75 ALJR 931 at 935 [10]; 179 ALR 349 at 353 [10].

16 The case of Jones v Dunkel (1959) 101 CLR 298 is a particular application of this principle. That case itself related to a situation where there was evidence supporting an inference against a party, and that party did not give or call evidence, which that party was plainly in a position to have given or called, in order to explain or contradict the material presented. In my opinion, a similar principle applies where a person bearing the onus of proof does not give or call evidence which that person is plainly in a position to give or call; and unless some explanation is given of this failure, the tribunal of fact is entitled to infer that this evidence would not have assisted that person’s case: cf. Commercial Union Insurance Co. of Australia Limited v Fercom Pty Limited (1991) 22 NSWLR 389.

123 In Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 (Coshott v Prentice), the Full Court of this Court referred with approval to Lord Mansfield’s maxim and the observations of Hodgson JA in Ho v Powell (at [80]) and went on to say the following (at [81]–[82]):

81  Thus, where the evidence relied upon by a party bearing the onus of proof does not itself clearly discharge the onus, the failure by that party to call or give evidence that could cast light on a matter in dispute is relevant to determining whether the onus is being discharged: Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371 (Dixon CJ); Shalhoub v Buchanan [2004] NSWSC 99 at [71] (Campbell J). This principle is therefore wider than that in Jones v Dunkel (1959) 101 CLR 298. As Austin J in Australian Securities and Investments Commission v Rich (2009) 236 FLR 1 explained at 93 [440], ‘[w]hereas Jones v Dunkel reinforces an inference drawn against the party who has not called evidence, to the effect that the evidence would not have assisted that party’s case, Blatch v Archer leads either to the drawing of such an inference, or to some other assessment of the weight of evidence, unfavourable to the party against whom the principle is applied.’               (emphasis in original)

82 In short, the Coshott parties bore the onus of proving the trust over Robert’s interest but failed to call or give evidence explaining the documents and transactions on which they rely. Yet Robert, in particular, was in the best position to explain them. This cannot be ignored when weighing the limited evidence they relied upon to support their case with all the other evidence which tended to undermine it.

124  In Heydon JD, Cross on Evidence (13th ed, LexisNexis Australia, 2021), the learned author states (at [1215]):

Lord Mansfield CJ’s maxim is wider than the rule in Jones v Dunkel because the rule is available against a party not bearing the onus of proof. But the maxim is also available against a party bearing that onus – in permitting a conclusion that uncalled evidence would not have helped the case of a party not calling it, or permitting inferences against the party to be more strongly drawn, or assisting in deciding whether the party bearing the onus has discharged it.

The legislation

36      Mr Weeda’s employment with Silverhorse ended on 31 May 2022. Therefore, the version of the LSL Act applicable to the calculation of his long service leave entitlements at that time was the version current from 14 April 2022 to 19 June 2022.

37      Mr Weeda’s employment with Luceo ended on 28 February 2014. Therefore, the version of the LSL Act applicable to the calculation of his long service leave entitlements at that time was the version current from 11 September 2010 to 21 December 2021.

38      Section 8 and s 9(2) of each version of the LSL Act is identical and provides that an employee is entitled to 8 ⅔ weeks of long service leave after 10 years of continuous employment, and to payment of a pro‑rated amount of long service leave on termination of employment after seven years of continuous employment.

39      Mr Weeda claims to have been continuously employed by Luceo from 1 September 2002 to 28 February 2014, a period of 11 years and six months.

Assessment of the documentary evidence

40      In terms of the documentary evidence, Silverhorse places great emphasis on PWAR‑001 not containing any provision for long service leave as substantiating its contention that Mr Weeda was not a Luceo employee.

41      In essence, Silverhorse is asking the Court to draw an inference about Mr Weeda’s employment based on PWAR‑001. This necessitates a thorough examination of PWAR‑001 and the related documents, in accordance with reg 35(4) of the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA), which follows.

42      PWAR‑001 is Luceo’s financial report for the year ended 30 June 2012. Mr Weeda contended that his employment with Luceo commenced on 1 September 2002. The period from 1 September 2002 to 30 June 2012 is nine years and 10 months.

43      PWAR‑001 comprises of the following:

(a)           Compilation Report.

(b)           Balance Sheet.

(c)           Income Statement.

(d)           Detailed Profit and Loss Statement.

(e)           Notes to the Financial Statements.

(f)           Director’s Declaration.

(g)           Statement of Financial Ratios.

44      The Compilation Report was completed by Pina Caffarelli of Caffarelli & Associates, Chartered Accountants. In it, Mr Caffarelli states:

My responsibility

On the basis of information provided by the director, I have compiled the accompanying special purpose financial statements in accordance with the significant accounting policies adopted as set out in Note 1 to the financial statements and APES 315: Compilation of Financial Information.

My procedures use accounting expertise to collect, classify and summarise the financial information, which the director provided, in compiling the financial statements. My procedures do not include verification or validation procedures. No audit or review has been performed and accordingly no assurance is expressed.

The special purpose financial statements were prepared exclusively for the director. I do not accept responsibility to any other person for the content of the special purpose financial statements.

45      The Compilation Report is for the financial year ending 30 June 2012 and is dated 14 February 2013. Therefore, the version of APES 315: Compilation of Financial Information applicable to PWAR‑001 is the version issued in July 2008 and revised in November 2009 (APES 315).

46      APES 315 states that:

(a)           It is issued by the Accounting Professional & Ethical Standards Board Limited (APESB).

(b)           Members in Public Practice (such as Mr Caffarelli) shall follow the mandatory requirements of APES 315 when they undertake Professional Services (such as accounting services) that are Compilation Engagements (such as an engagement to compile Luceo’s financial report).

(c)           The following are mandatory standards for Members in Public Practice:

(i)           Familiarity with relevant Professional Standards and guidance notes when providing Professional Services and compliance with the fundamental principles outlined in the Code (APES 110 – Code of Ethics for Professional Accountants).

(ii)          When undertaking a Compilation Engagement:

(A)     Compliance with s 100 of APES 110 – Introduction and Fundamental Principles.

(B)     Compliance with public interest obligations in accordance with s 100 of APES 110.

(C)     Maintaining professional competence and taking due care in the performance of work in accordance with s 130 of APES 110 – Professional Competence and Due Care.

(D)     Ensuring the engagement is conducted in accordance with APES 315 and all applicable Professional Standards, laws and regulations.

(E)      Compliance with APES 205 – Conformity with Accounting Standards.

(F)      Consideration of whether the Compiled Financial Information (which includes Financial Statements) is appropriate in form and content and free from obvious material misstatements.

47      The version of APES 110 – Code of Ethics for Professional Accountants at [46(c)(i)] and [46(c)(ii)(A)]–[46(c)(ii)(C)] above applicable to PWAR‑001 is the version compiled as at December 2011 (APES 110).

48      APES 110 states that:

(a)           It is issued by the APESB.

(b)           Members (such as Mr Caffarelli) must comply with APES 110 when providing Professional Services (which includes accountancy services).

(c)           The following are mandatory standards for Members:

(i)           Section 110.2:

110.2 A Member shall not knowingly be associated with reports, returns, communications or other information where the Member believes that the information:

(a) Contains a materially false or misleading statement;

(b) Contains statements or information furnished recklessly; or

(c) Omits or obscures information required to be included where such omission or obscurity would be misleading.

When a Member becomes aware that the Member has been associated with such information, the Member shall take steps to be disassociated from that information.

(ii)          Section 130.1 and s 130.4:

130.1 The principle of professional competence and due care imposes the following obligations on all Members:

(a) To maintain professional knowledge and skill at the level required to ensure that clients or employers receive competent Professional Service; and

(b) To act diligently in accordance with applicable technical and professional standards when providing Professional Services.

130.4 Diligence encompasses the responsibility to act in accordance with the requirements of an assignment, carefully, thoroughly and on a timely basis.

49      The version of APES 205 – Conformity with Accounting Standards at [46(c)(ii)(E)] above applicable to PWAR‑001 is the version issued in December 2007 (APES 205).

50      APES 205 states that:

(a)           It is issued by the APESB.

(b)           Members (such as Mr Caffarelli) shall follow the mandatory requirements of APES 205 when they prepare, present, audit, review or compile Financial Statements (such as PWAR‑001),

(c)           The following are mandatory standards for Members:

(i)           Familiarity with relevant professional standards and guidance notes when performing professional work and compliance with the fundamental principles outlined in APES 110.

(ii)          When preparing, presenting, auditing, reviewing or compiling Special Purpose Financial Statements (such as PWAR‑001):

(A)     Compliance with public interest obligations in accordance with s 100 of APES 110.

(B)     Ensuring requisite professional knowledge and skill in the performance of professional work in accordance with s 130 of APES 110.

51      As outlined at [46(c)(ii)(D)] above, Mr Caffarelli was obliged to ensure that PWAR‑001 was prepared according to all applicable Professional Standards, laws and regulations.

52      In terms of laws, s 296(1) and s 297 of the Corporations Act states:

296  Compliance with accounting standards and regulations

(1)  The financial report for a financial year must comply with the accounting standards.

297  True and fair view

The financial statements and notes for a financial year must give a true and fair view of:

(a)  the financial position and performance of the company, registered scheme, registrable superannuation entity or disclosing entity; and

(b)  if consolidated financial statements are required—the financial position and performance of the consolidated entity.

This section does not affect the obligation under section 296 for a financial report to comply with accounting standards.

Note:  If the financial statements and notes prepared in compliance with the accounting standards would not give a true and fair view, additional information must be included in the notes to the financial statements under paragraph 295(3)(c).

53      The Corporations Act defines ‘accounting standards’ as those made by the Australian Accounting Standards Board (AASB).

54      The accounting standards made by the AASB that require the provisioning for long service leave in financial reports include:

(a)           AASB 1046 Director and Executive Disclosures by Disclosing Entities dated January 2004 (AASB 1046); and

(b)           AASB 119 Employee Benefits with compilation date 31 December 2018 (AASB 119).

55      AASB 1046 applied at the time PWAR‑001 was prepared. However, AASB 1046 only imposed the obligation to provision for long service leave on a ‘disclosing entity that is required to prepare financial reports in accordance with Part 2M.3 of the Corporations Act’ and there is no suggestion that Luceo was such an entity.

56      AASB 119 is discussed further at [78]–[82] below. However, AASB 119 has a compilation date of 31 December 2018 and did not apply at the time PWAR‑001 was prepared.

57      Therefore, as at the date that PWAR-001 was prepared, it does not appear that any accounting standard made by the AASB imposed an obligation for PWAR‑001 to provision for long service leave where a long service leave liability existed.

58      While it is true that there was no explicit positive obligation under an accounting standard issued by the AASB at the relevant time, I do not agree with Mr Weeda’s argument that there was no obligation for PWAR‑001 to provision for long service leave where a long service leave liability existed.

59      I consider such a contention to run contrary to the obligations on those preparing financial reports to ensure that they:

(a)           Comply with all applicable laws, including s 297(a) of the Corporations Act which requires financial statements and notes for a financial year to give a true and fair view of the financial position and performance of the company: [46(c)(ii)(D)] above.

(b)           Are appropriate in form and content and free from obvious material misstatements: [46(c)(ii)(F)] above.

(c)           Do not contain any materially false, misleading or reckless statement or omission: [48(c)(i)] above.

(d)           Are prepared diligently and carefully: [48(c)(ii)] above.

60      Furthermore, I find Mr Weeda’s argument to be inconsistent with the Director’s Declaration he made on 14 March 2013, in which he stated that PWAR‑001 ‘present[s] fairly [Luceo’s] financial position as at 30 June 2012 and its performance of the year ended on that date’. This declaration implies a certain level of accuracy and completeness in the financial reporting, which would be compromised if a significant liability, such as his long service leave, was not properly accounted for.

61      For the reasons outlined at [58]–[60] above, I agree with Silverhorse’s contention that the lack of provisioning for Mr Weeda’s long service leave in PWAR‑001 weighs against a finding that he was, at the relevant time, an employee of Luceo with an imminent entitlement to long service leave.

62      PWAR‑001 states ‘Employee benefits expenses’ of $503,043.81 in 2011 and $570,876.58 in 2012. During closing submissions, counsel for Mr Weeda submitted that: (ts 87):

So you should take from that that at least in 2011/2012 there were considerable moneys going out of Luceo to pay salaries and that that expenditure is not explained by the other employees that you’ve been asked about and that Mr Weeda gave evidence about. The conclusion we say the inference you should draw from that is that extra salary is at least in part probably Mr Weeda.

63      On 11 April 2014, Mr Weeda stated via email to Ms Treloar that apart from a ‘disastrous 2012’, he had received almost $250,000 inclusive of superannuation plus approximately $50,000 in director’s fees from Luceo: [13(b)] above.

64      PWAR‑001 makes no reference to Luceo paying director’s fees in the financial years ending 2011 and 2012.

65      Further, the PAYG summaries do not support Mr Weeda’s statement that other than in the ‘disastrous 2012’ that he was paid amounts of approximately $300,000 from Luceo in other years.

66      Apart from the PAYG summaries, Mr Weeda did not present any documentary evidence to support his claim that he was an employee who received a salary during his time with Luceo. This issue will be revisited later in these reasons for decision. At this point, it is relevant to note that, given the inconsistencies outlined at [63]–[65] above in Mr Weeda’s description of the amounts he received from Luceo, and given that Mr Weeda did not clarify, nor provide any other evidence to support or explain PWAR‑001 stating ‘Employee benefits expenses’ of $503,043.81 in 2011 and $570,876.58 in 2012, I am unable to accept Mr Weeda’s counsel’s submission that these ‘Employee benefits expenses’ support Mr Weeda having been a Luceo employee in receipt of a salary from Luceo.

67      The parties agreed that Caffarelli & Associates prepared Luceo’s 2012 financial report (PWAR‑001), and Silverhorse’s 2015 financial report (PWAR‑005), and that neither report made any provision for Mr Weeda’s long service leave on the respective Balance Sheets.

68      On Mr Weeda’s claim that he commenced employment with Luceo on 1 September 2002, at 30 June 2015, the financial year covered by PWAR‑005, Mr Weeda would have been employed for a total period of 12 years and 10 months.

69      PWAR‑005’s Profit and Loss Statement states a ‘Long Service Leave’ expense of $5,626 in 2015 and a nil expense in 2014.

70      Mr Weeda stated in cross‑examination that he understood the long service leave expense in 2015 to relate to Mr Pearson: [19(u)] above.

71      On the basis that Mr Pearson commenced employment with Luceo on 9 February 2009 (at [8(c)] above), Mr Pearson would have been employed for a period of six years and four‑plus months from 30 June 2015. It is, therefore, unclear why Silverhorse made a long service leave payment to Mr Pearson in the 2015 financial year.

72      PWAR‑005’s Notes to the Financial Statements state a ‘Provision for Long Service Leave’ of $23,695 in 2015 and a nil amount in 2014. Mr Roberts explains in his witness statement [46]–‍[51] that the figure of $23,695 has been calculated from Silverhorse’s long service leave spreadsheet (PWAR‑006).

73      Page 1 of PWAR‑006 records the length of service as at 30 June 2015 for Mr Richardson (4.6 years), Mr Pearson (6.3 years) and Ms Lambelin (1.2 years). Page 4 of PWAR‑006 (page 3 of the Long Service Leave Template) records ‘Non Current Liability – Provision for Long Service Leave’ of $23,695.

74      I note that although Mr Richardson, Mr Pearson and Ms Lambelin would not be entitled to a payment for long service leave until they completed at least seven years of continuous employment, PWAR‑005 includes a provision for their long service leave.

75      Mr Roberts states in his witness statement [52] that Mr Weeda’s long service leave liability is not included in PWAR‑006, he was likely the one to have included the note on page 1 of PWAR‑006 which states, ‘Directors excluded’, but he cannot recall why this note excluding directors was included in PWAR‑006.

76      On Mr Weeda’s assertion, at the time of PWAR‑005, he had been employed for a total period of 12 years and 10 months.

77      Under cross‑examination, Mr Weeda accepted that PWAR‑005 did not make any provision for his long service leave. He did not accept that this was because he had no entitlement to long service leave at this time. He stated that, ‘you don’t need to accrue for that liability. You just have to have the ability to pay it when it becomes due’: (ts 35).

78      I note that PWAR‑005 and PWAR‑001 differ by PWAR‑005 including a section titled, ‘Employee Benefits’. Under this section, it is stated that PWAR‑005 has been prepared in compliance with AASB 119:

Employee benefits are presented as current liabilities in the balance sheet if the company does not have any unconditional right to defer settlement of the liability for at least one year after the reporting date regardless of the classification of the liability for measurement purposes under AASB 119.

79      As noted at [56] above, AASB 119 has a compilation date of 31 December 2018. However, it also provides that it may be applied for annual periods beginning from 1 January 2014:

This compiled Standard applies to annual periods beginning on or after 1 January 2019 but before 1 January 2021. Earlier application is permitted for annual periods beginning on or after 1 January 2014 but before 1 January 2019. It incorporates relevant amendments made up to an including 23 March 2018.

80      Therefore, it appears to me that PWAR‑005 making provision for Mr Richardson’s, Mr Pearson’s and Ms Lambelin’s long service leave is consistent with PWAR‑005 having been prepared in accordance with AASB 119.

81      By PWAR‑005 adopting AASB 119, and contrary to Mr Weeda’s contention at [77] above, I find that if Mr Weeda had an entitlement to long service leave at the time PWAR-005 was prepared that PWAR-005 should have provisioned for this liability.

82      I find that it is inconsistent with AASB 119 for PWAR-005 to provision for Mr Richardson’s, Mr Pearson’s and Ms Lambelin’s long service leave but not provision for Mr Weeda’s long service leave.

83      Mr Weeda agrees that Cafferelli & Associates were both Luceo’s and his personal accountant, and that he arranged for Cafferelli & Associates to prepare Silverhorse’s 2015 financial report: [19(t)] above.

84      Silverhorse submitted that, if Mr Weeda was an employee of Luceo, this would be a fact known to Mr Caffarelli: [28(o)] above. Silverhorse submitted that the fact that PWAR‑005 made no provision for Mr Weeda’s long service leave in these circumstances means Mr Weeda had no pre‑Silverhorse accrual to long service leave because he was not an employee of Luceo.

85      The difficulty with Silverhorse’s submission is that the long service leave provision in PWAR‑005 appears to have been taken from the calculation in PWAR-006, and PWAR‑006 excludes Mr Weeda because he was a Silverhorse director.

86      There is no dispute that by mid‑2014 Mr Weeda had agreed to being a Silverhorse employee. Silverhorse contends that Mr Weeda’s start date for long service leave purposes is 1 March 2014. Yet PWAR-006 includes Ms Lambelin with a start date of 28 April 2014, two months after Mr Weeda’s start date with Silverhorse, but excludes Mr Weeda.

87      Reviewing the financial reports and the ‘Long Service Leave Template’ for subsequent years, reveals that the figure for the ‘Provision Long Service Leave’ in the financial reports is the same as the ‘Long Service Leave Template’ calculation for that year, as follows:

(a)           The provision of $14,745 in 2016 and $19,486 in 2017 in the financial report for 2017 (PWAR-008) is the same figure as the calculations in PWAR-007 and PWAR-009;

(b)           The provision of $25,527 in the 2018 financial report (PWAR-010) is the same figure as the calculation in PWAR-011;

(c)           The provision of $34,296 in the 2019 financial report (PWAR-012) is the same figure as the calculation in PWAR-013;

(d)           The provision of $47,495 in the 2020 financial report (PWAR-014) is the same figure as the calculation in PWAR-015.

88      Each of PWAR-007, PWAR-009, PWAR‑011, PWAR‑013, and PWAR-015 include the long service leave calculations for employees who commenced with Silverhorse after Mr Weeda, but do not include a long service leave calculation for Mr Weeda. This inconsistency was not adequately explained.

89      I note that PWAR-005’s Compilation Report states that the directors are solely responsible for the reliability, accuracy and completeness of the information in PWAR-005. I further note that the financial reports for subsequent years contain a similar statement regarding the responsibility of the directors in relation to the information contained in the financial report.

90      Given this, and given my finding at [81] above that PWAR-005 should have provisioned for Mr Weeda’s long service leave along with the long service leave provisioning of the other Silverhorse employees, it may have been open for Silverhorse to argue that Mr Weeda as its CEO and director who signed the Director’s Declaration in PWAR-005 should have ensured PWAR‑005, as well as the financial reports for subsequent years, provisioned for his long service leave and the fact that these documents did not make such provision supports its contention that he was not a Luceo employee.

91      However, given the matters at [85]–[88] above, I do not find that PWAR-005 supports Silverhorse’s submissions, as it seems more likely that PWAR‑005 does not provision for Mr Weeda’s long service leave because of his exclusion from PWAR‑006.

92      Therefore, I am unable to agree with Silverhorse’s submissions at [84] above, and in particular the submission that PWAR‑005 supports its contention that Mr Weeda was not a Luceo employee because Mr Caffarelli was aware of the status of Mr Weeda’s engagement with Luceo and Mr Caffarelli prepared PWAR‑005 without provisioning for Mr Weeda’s long service leave.

Assessment of the witness evidence

When did Mr Weeda commence employment with Luceo?

93      The filed documents and evidence reveal the following inconsistencies in the date Mr Weeda contends he commenced employment with Luceo:

(a)           In the email Mr Weeda sent to Mr Roberts on 29 May 2022, Mr Weeda states his long service leave entitlement ‘should be calculated from 14/11/2001 through 31/05/2022’ and his long service leave entitlement is ‘[b]ased on continuous employment from 14/01/2001 through 31/05/2022’: [8(f)(v)] above.

(b)           In the Originating Claim filed on 27 October 2022, Mr Weeda states he was employed by Luceo from 1 September 2002: [1(a)] above.

(c)           In the Further and Better Particulars filed on 13 March 2023, Mr Weeda states he commenced employment with Luceo in September 2002, and ‘[a]t no point from 2004 to May 2022 (when [he] resigned) was there any interruption to [his] continuous service’: [3] above.

(d)           The PAYG summary for the period ending 30 June 2003 attached to Mr Weeda’s affidavit filed on 11 September 2023 refers to Mr Weeda receiving $52,849 from Luceo in the period from 19 August 2002 to 30 June 2003.

94      In relation to the discrepancies at [93(c)] above, Mr Weeda gave evidence at the trial that his employment with Luceo commenced on 1 September 2002 and that the reference to 2004 in the Further and Better Particulars was in error: [18(a)] and [20(b)] above.

95      In relation to the discrepancy at [93(d)] above, Mr Weeda’s counsel submitted that the period in which payments commenced going back to August 2002, and not September, potentially reflects pay cycles: (ts 13). No evidence was led, and no challenge was mounted, in relation to this submission. Whilst I find the explanation plausible, I do not consider anything turns on it and therefore make no findings as to whether the PAYG summary states an earlier payment date than the contended employment commencement date because of pay cycles.

96      No evidence was led, or submissions made, in relation to the discrepancies at [93(a)] above. As Mr Weeda’s purported commencement date with Luceo is stated by him two times but inconsistently in the same email, it is plausible that one of the dates is a typographical error. That is, Mr Weeda had intended to consistently state that his employment commenced either on 14 November 2001 (his first reference to his commencement date), or on 14 January 2001 (his second reference to his commencement date).

97      However, which date (whether 14 November 2001 or 14 January 2001) is the correct and intended reference was not explained at the trial. It needs to be noted that both dates are inconsistent with Mr Weeda’s subsequent contention in these proceedings that his employment with Luceo commenced on 1 September 2002. This is a matter I will return to later in these reasons for decision.

Was there a transfer of funds from Luceo to Silverhorse?

98      Whether money was exchanged between Luceo and Silverhorse for Silverhorse assuming the leave liabilities for Mr Richardson and Mr Pearson is disputed. Mr Weeda contends that Luceo transferred $27,000 for this purpose: [19(i)] above. Both Mr Connor and Mr Antunovich dispute this in their witness statements: Mr Connor’s witness statement [45] at [14] above and Mr Antunovich’s witness statement [16] at [12] above. Mr Antunovich’s evidence was not disturbed on cross‑examination: (ts 66).

99      I prefer the evidence of Mr Connor and Mr Antunovich for the following reasons.

100   Their evidence is consistent with the MOU and PWAR-005 making no reference to Luceo making a transfer to Silverhorse.

101   The parties provided extensive evidence regarding the negotiations that led to Silverhorse and Luceo entering into the MOU and the preparation of the Shareholders Agreement and Deed of Licence. In none of these documents or in any of the correspondence that has been tendered, is there any mention of Luceo making a transfer of funds to Silverhorse for any reason, let alone for the reason of Silverhorse assuming the leave liabilities for Mr Richardson and Mr Pearson.

102   I note in particular that the transfer of funds from Luceo to Silverhorse is not mentioned in Mr Weeda’s Further and Better Particulars.

103   For the reasons outlined at [99]–[102] above, I am therefore not convinced that there was a transfer of funds from Luceo to Silverhorse, whether to compensate Silverhorse for assuming the leave liabilities for Mr Richardson and Mr Pearson, or for any reason.

What did the request for Mr Weeda to provide Luceo’s employee liabilities entail?

104   In the Agreed Statement of Facts [16] filed on 10 July 2023, the parties agreed that:

(a)           Silverhorse asked Mr Weeda to ‘determine the employment liabilities for employees employed by [Silverhorse] who had previously been employed by Luceo, based on their continuous service with Luceo (the Employment Liabilities)’: [16(a)] at [9] above.

(b)           Mr Weeda provided Silverhorse ‘with details of the Employment Liabilities, which did not include any employment liability for [himself] for long service leave with Luceo’: [16(b)] at [9] above.

105   In Mr Weeda’s affidavit filed on 11 September 2023, he:

(a)           Agreed that Silverhorse asked ‘for information about leave accruals for Luceo staff that had transferred to Silverhorse’: [38] at [10(g)] above.

(b)           Stated that he included the accruals for Mr Richardson and Mr Pearson but not himself because:

(i)           He thought his answer ‘properly reflected what was being asked of me’: [39]–[40] at [10(g)] above.

(ii)          ‘I made that assumption because [Silverhorse] must have known that my service commenced when I began working with Luceo’: [44] at [10(g)] above.

106   Silverhorse says that Mr Weeda was requested to provide the employee entitlements for all transferring employees: Mr Connor’s witness statement [45] at [14] above. Further, Silverhorse submits that, taking into account the request and Mr Weeda’s deliberate exclusion of himself from the information presented, supports its contention that Mr Weeda was not a Luceo employee: [17(f)] above.

107   It is not in dispute that Mr Weeda was cognisant that the transferring employees’ leave liabilities were a significant consideration in the due diligence process. Additionally, it is not disputed that Mr Weeda was aware that Silverhorse was obliged to and did capture and recognise Mr Richardson’s and Mr Pearson’s commencement dates with Luceo for all purposes related to their transferring employment: [9] above.

108   Given the matters in [107] above, I am unable to accept Mr Weeda’s contention that, based on the due diligence undertaken of Luceo, Silverhorse knew or ought to have known that he was a Luceo employee prior to his employment with Silverhorse. Accepting Mr Weeda’s contention would mean accepting that Silverhorse acquired knowledge during the due diligence that Mr Weeda was a Luceo employee and chose to treat his leave entitlements differently from those of Mr Richardson and Mr Pearson at the time each of them transitioned from Luceo to Silverhorse. This appears implausible, especially considering Mr Weeda’s concession that the due diligence undertaken on Luceo was comprehensive.

109   Mr Weeda stated for the first time at the trial that:

(a)           He told Ms Treloar that he was an employee of Luceo; and

(b)           Luceo’s MYOB records, recording him as being on Luceo’s payroll, was provided to Ms Treloar during the due diligence process.

110   I note that the new evidence at [109] above is in direct contradiction to Mr Weeda’s assertion in his Response to Counterclaim, where he admitted that he did not inform Silverhorse that it was liable for the long service leave he accrued with Luceo: [5] above.

111   Further, by the new evidence at [109] above, Mr Weeda is effectively seeking the Court to infer that following his disclosure to Ms Treloar, who at the relevant time was OGS’ CFO assisting Mr Connor with the due diligence on the transaction involving Luceo, that Ms Treloar acted in the following manner:

(a)           She did not inform Mr Connor (or anyone else at OGS or Silverhorse, including OGS’ CEO, Mr Antunovich, whom she reported to) that Mr Weeda had disclosed to her that he was a Luceo employee as part of the due diligence that Mr Connor was overseeing.

(b)           She did not save Luceo’s MYOB file to the OGS folder of Luceo documents relevant to the due diligence.

(c)           She denied Mr Connor and Silverhorse the opportunity to have Mr Weeda’s commencement date with Luceo documented in the draft employment contract and/or draft contractor agreement that Silverhorse issued to Mr Weeda.

(d)           She denied Mr Connor and Silverhorse the opportunity to record Mr Weeda’s commencement date for long service leave purposes.

112   By the new evidence at [109] above, Mr Weeda is essentially requesting the Court to accept that at the time of the due diligence, Silverhorse, knowing that it had an obligation to recognise a transferring employee’s commencement date and therefore leave entitlements, and having been diligent in their recognition of these for Mr Richardson and Mr Pearson:

(a) Was aware that Mr Weeda was a Luceo employee and thus it had the same obligations regarding his leave entitlements as it had in relation to Mr Richardson’s and Mr Pearson’s leave entitlements; and

(b) Decided to ignore his commencement date and treat him differently from Mr Richardson and Mr Pearson.

113   This seems unlikely, given Silverhorse’s demonstrated diligence in recognising the leave entitlements for transferring employees.

114   As evident from the Response filed on 17 November 2022, Silverhorse’s case centred on its argument that prior to April 2022, Mr Weeda did not inform, nor bring to Silverhorse’s attention, that he was an employee of Luceo: [2(b)(iv)] above.

115   As outlined at [32]–[35] above, the onus is on Mr Weeda to establish his case.

116   Mr Weeda had ample opportunity to retract his admission in the Response to Counterclaim filed on 29 May 2023 that he did not inform Silverhorse that it was liable for the long service leave he accrued with Luceo. This was possible through the Agreed Statement of Facts filed on 10 July 2023, in his affidavit filed on 11 September 2023, and in his Outline of Submissions filed on 1 December 2023. Mr Weeda could have stated that, contrary to his previous admission in the Response to Counterclaim, that he informed Silverhorse through Ms Treloar that he had been a Luceo employee.

117   Additionally, Mr Weeda could have called upon, or summonsed, Ms Treloar to attend the trial to provide evidence and testimony regarding his discussions with her and of the MYOB file he says was produced to her.

118   Since Mr Weeda did not take the steps available to him as outlined in [116]–[117] above, I am not persuaded that Mr Weeda made the disclosures to Ms Treloar that he claims to have made in [109] above.

The status of Mr Weeda’s engagement with Silverhorse

119   Mr Connor’s evidence in his witness statement was that:

(a)           Mr Weeda was undecided whether to be engaged as an employee or contractor of Silverhorse, but the decision was for Mr Weeda to make: [40] at [14] above.

(b)           As a consequence of Mr Weeda’s indecision, he prepared both a draft employment contract and a draft contractor agreement for Mr Weeda: [42] at [14] above.

(c)           When he spoke with Mr Weeda between March and June 2014, he understood Mr Weeda was leaning towards being a contractor, and he suggested Mr Weeda take tax advice because he had concerns about Silverhorse’s CEO being engaged as a contractor: [44] at [14] above.

(d)           Mr Weeda decided, after June 2014, that he wanted to be an employee of Silverhorse: [47] at [14] above.

120   Mr Connor’s evidence was not disturbed on cross-examination.

121   In re‑examination, Mr Connor’s evidence was that: [22(c)]–[22(d)] above:

(a)           As a Silverhorse director, his personal preference was for Mr Weeda not to be engaged as a Silverhorse contractor as he was concerned this would create a liability for Silverhorse; and

(b)           Mr Weeda gravitated between being a Silverhorse employee and a Silverhorse contractor, but ultimately decided in mid‑2014 to be a Silverhorse employee.

122   Mr Antunovich’s evidence at the trial was that: [25] above:

(a)           His expectation and personal preference was for Mr Weeda to be employed by Silverhorse as its employee, however, he discussed with Mr Weeda the possibility of Mr Weeda being engaged in a manner that would suit Mr Weeda’s needs. Mr Weeda did not express a preference to him regarding how he wished to be engaged.

123   Mr Weeda accepted under cross-examination that: [19(m)]–[19(n)] above:

(a)           As at late March 2014, he had not decided whether he wished to be employed or contracted to Silverhorse; and

(b)           From February to June 2014, he was discussing with Silverhorse whether he would be an employee or contractor to Silverhorse.

124   Silverhorse argues that Mr Weeda’s indecision regarding whether to be an employee or contractor of Silverhorse contradicts Mr Weeda’s contention that he was a Luceo employee. Silverhorse argues that if Mr Weeda was truly a Luceo employee, he would have readily committed to being employed by Silverhorse as its employee. However, Mr Weeda did not confirm his intention to be employed by Silverhorse until June 2014: [28(x)] above.

125   There is no dispute that Mr Weeda did not commit to being employed by Silverhorse until June 2014. Consequently, I concur with Silverhorse’s submission that Mr Weeda’s hesitation between being employed or being contracted to Silverhorse weighs against his claim to being a Luceo employee. If Mr Weeda had been engaged as a contractor to Silverhorse, as Mr Connor testified Mr Weeda was leaning towards, it would have meant that any long service leave entitlement existing at that time would not have transferred to Silverhorse.

Assessment of Silverhorse’s submission that Mr Weeda has not proved his claim

126   As outlined at [32]–[35] above, Mr Weeda bears the onus of establishing his case, namely, that for LSL Act purposes, he was continuously employed by Luceo from 1 September 2002 to 28 February 2014.

127   The only documentary evidence Mr Weeda has provided to establish his entitlement to long service leave are the PAYG summaries. These were produced as attachments to his affidavit filed on 11 September 2023.

128   By this time, Silverhorse had filed the following documents:

(a)           Silverhorse’s Response, which outlined Silverhorse’s case that Mr Weeda was not continuously employed from 1 September 2002 to 28 February 2014: [2(a)] above.

(b)           Silverhorse’s Reply to Mr Weeda’s Further and Better Particulars, which stated a denial that Mr Weeda was continuously employed from 1 September 2002 to 31 May 2022: [4] above.

(c)           Silverhorse’s Copies of Records, which included Silverhorse’s leave accruals and financial reports and the correspondence exchanged with Mr Weeda which Silverhorse intended to rely upon at the trial to contradict Mr Weeda’s assertion that he was a Luceo employee: [8] above.

129   From the documents at [128] above, it is clear that Mr Weeda was put on notice that Silverhorse intended to argue that he was not a Luceo employee. Given this, and as submitted by Silverhorse’s counsel, it is reasonable to question why Mr Weeda has not produced any additional evidence in these proceedings, especially considering that he did manage to locate the PAYG summaries.

130   In its Outline of Submissions filed on 6 December 2023, Silverhorse submitted that: [17(c)]–‍[17(d)] and [17(j)] above:

(a)           The PAYG summaries do not confirm that Mr Weeda was an employee of Luceo for the entire period.

(b)           Mr Weeda did not produce any of the following evidence or documents establishing his employment with Luceo:

(i)           An employment contract.

(ii)          Any documentation relating to the nature of his relationship with Luceo.

(iii)         Payment history indicating regular payment of salary.

(iv)          Workers’ compensation insurance records.

(v)           Employment records.

(vi)          Details of work undertaken and reward/remuneration for work undertaken.

(c)           Given Mr Weeda’s conduct at the time, Silverhorse’s case was that Mr Weeda was only a director and shareholder of Luceo.

131   From Silverhorse’s Outline of Submissions, it is evident that Mr Weeda was on notice that Silverhorse intended to argue that the PAYG summaries alone would be insufficient to substantiate his claims and that his assertion of being a Luceo employee would be challenged based on his inability to produce other evidence or documentation confirming his employment with Luceo. Additionally, if Mr Weeda was unable to produce such evidence, Silverhorse intended to argue that Mr Weeda was only a Luceo director and shareholder, rather than an employee.

132   This is a particularly pertinent point, given Mr Weeda’s acknowledgement that PAYG summaries do not, in and of themselves, establish an employment relationship, as they are issued to employees and non-employees.

133   Mr Weeda could have provided additional material to support his assertion that he was a Luceo employee from 1 September 2002. Mr Weeda had ample time between receiving Silverhorse’s Outline of Submissions and the trial to produce such further evidence.

134   Relevantly, at the trial, Mr Weeda sought and was given leave to give further evidence that was responsive to the witness statements and Outline of Submissions filed by Silverhorse.

135   Mr Weeda could have, but did not, present the following documents to support his case:

(a)           Tax returns, which may have shown deductions consistent with employment, as opposed to expenses consistent with other arrangements.

(b)           Bank statements, which may have shown regular monthly payments, consistent with salary payments.

(c)           Superannuation records, which may have shown compulsory employer contributions consistent with employment.

136   As acknowledged by his counsel, Mr Weeda:

(a)           Could have, but did not, bring the MYOB file he says he produced to Ms Treloar to court: [27(d)] above.

(b)           Could have called Ms Treloar to give evidence about the Luceo payroll records that he says she sighted as OGS’ CFO: [27(e)] above.

(c)           Could have attempted to produce corroborating evidence from Caffarelli & Associates or called them to produce records to court: [27(o)] above.

(d)           Chose to rely on his own evidence and the PAYG summaries: [27(f)] above.

137   However, contrary to Mr Weeda’s evidence provided by affidavit, in the witness box and through the PAYG summaries, the overwhelming evidence tendered by Silverhorse is that:

(a)           At the critical time of the due diligence and the provision of the leave entitlements for Mr Richardson and Mr Pearson, Mr Weeda did not raise the issue of his employment status with Luceo and long service leave entitlements for himself; and

(b)           At no time during his employment with Silverhorse as its CEO and as a director, from 1 March 2014 until his resignation in 2022, did Mr Weeda raise the issue of his employment status with Luceo. Particularly when Mr Weeda agreed that as a Silverhorse director he was bound by s 180(1) of the Corporations Act to exercise his powers and discharge his duties as a director with care and diligence: Agreed Statement of Facts [14] at [9] above.

138   The Court is unable to make any findings regarding the Estoppel Argument and the Set Off Argument. However, if it were the case that Mr Weeda had a long service leave entitlement, his failure to raise this with Silverhorse prior to his resignation could arguably give rise to a claim by Silverhorse that he breached his duties as its CEO and director. Consequently, I accept Silverhorse’s submission that Mr Weeda’s silence about a long service leave entitlement casts doubt on his claim that he had such an entitlement prior to his commencement with Silverhorse that was transferable to Silverhorse.

139   The evidence presented by Silverhorse does not prove that Mr Weeda was not an employee of Luceo, nor does it need to. Instead, it raises significant doubts about Mr Weeda’s claim that he was a Luceo employee for the entire period from 1 September 2002 onwards, particularly in light of his conduct from 2014 until 2022, during which period he did not raise the issue of his long service leave entitlement with Silverhorse.

140   Mr Weeda first stated to Silverhorse that he was a Luceo employee in his email to Mr Roberts on 25 May 2022. As noted at [93(a)] above, in this email, Mr Weeda states two different employment commencement dates (14 January 2001 and 14 November 2001), both of which pre‑date the date he stated at the trial was his commencement date (1 September 2002). These inconsistencies weigh against a finding that Mr Weeda commenced employment with Luceo on 1 September 2002.

141   Balancing the weight of Silverhorse’s evidence casting doubt on Mr Weeda’s claim against the inconclusive PAYG summaries, the inconsistencies in Mr Weeda’s purported employment commencement date with Luceo, and my findings at [118] above regarding Mr Weeda’s evidence relating to Ms Treloar, I cannot be satisfied that Mr Weeda commenced employment with Luceo on 1 September 2002.

142   Given my findings at [61], [66], [103], [108], [118], [125] and the matters at [126]–[141] above, and applying the principles at [33]–[35] above, I am not satisfied that Mr Weeda has discharged the onus on him to establish his claim that he was continuously employed by Luceo from 1 September 2002 to 28 February 2014, thereby entitling him to a long service leave payment from Silverhorse for this period upon the termination of his employment with Silverhorse.

Conclusion

143   For the preceding reasons, I find that Mr Weeda has not established his claim for long service leave entitlements.

144   Accordingly, Mr Weeda’s claim will be dismissed.

C. TSANG

INDUSTRIAL MAGISTRATE