Adina Brucciani v WTMG Pty Ltd

[2014] FWC 7385

[2014] FWC 7385

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adina Brucciani
v
WTMG Pty Ltd
(U2014/7665)

COMMISSIONER WILLIAMS PERTH, 22 OCTOBER 2014

Termination of employment - minimum employment period.

[1] This matter involves an application made by Ms Adina Brucciani (Ms Brucciani or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is WTMG Pty Ltd (WTMG or the respondent).

[2] The respondent objects to the application on two grounds firstly that the applicant was not terminated on the employer’s initiative and secondly that in any event the applicant has not completed the minimum employment period of one year.

[3] The hearing was held to take evidence and submissions on the respondent’s second objection.

[4] At the hearing of this matter Ms Brucciani was self represented and the respondent was represented by its Director Mr Clifford Strahan (Mr C. Strahan).

Findings on evidence

[5] I am satisfied on the evidence that Lomwest Enterprises Pty Ltd (Lomwest) was a 75% shareholder of the respondent at the time the applicant’s employment ended. The remaining 25% shareholding in the respondent was owned by the respondent’s Managing Director Mr Glenn Parke (Mr Parke).

[6] To the extent that there is any conflict in the evidence between Mr Parke, the applicant and Mr C. Strahan I prefer the evidence of Mr Parke and the applicant which was consistent with each other and so find that Lomwest through Mr C. Strahan controlled the strategic direction of the respondent and generally dictated to Mr Parke how the respondent would operate on a day-to-day basis and it is only within that context that Mr Parke was free to manage the respondent’s business.

[7] I also find from the evidence, including the Memorandum of Information 1 and the Minutes of the Board Meeting of Lomwest for 19 December 20132, that the two entities Lomwest Enterprises Pty Ltd and WTMG Pty Limited (referred to in these documents at times as Newco) had joint safety procedures and also shared labour including that of a full time accounts person.

[8] I find that the two entities were aligning their work health and safety policies and procedures and all operational and workplace procedures.

[9] Further I find that Lomwest was the leaseholder of the site where WTMG operated and that Lomwest at its board meetings decided the billing and invoicing processes to be used by WTMG and considered developments such as the purchase of bailing machines by WTMG.

[10] I find the Board of Lomwest required Mr Parke to make a presentation at beginning of Lomwest board meetings. The Lomwest Board discussed the alternative of having two board meetings, with an advisory board meeting beforehand, with separate minutes for WTMG and following that meeting then commencing the Lomwest board meeting.

[11] I find that as at 19 December 2013 Lomwest had 15 employees and WTMG had another 10 employees.

[12] I find that at the date the applicant’s employment ended WTMG had 14 employees, one of which was the applicant, consistent with the evidence of Mr C. Strahan. I further find that at this date Lomwest had a number of employees of its own, one of which was Mr Hamish Smith the Contracts Manager who also gave evidence in this matter.

[13] I find based on the applicant’s employment contract 3, which was not challenged by the respondent, that the applicant’s employment with WTMG as Director of Operations commenced on 22 November 2013. This is expressly stated in that contract which is also dated 22 November 2013 and was signed as having been accepted by the applicant on the same date.

[14] I find that the respondent became registered as a corporation on 3 December 2013.

[15] I find that the applicant’s employment ended on 23 May 2014.

Consideration

[16] Section 23 of the Act explains that a small business is a business that employs fewer than 15 employees and that associated entities of the business are taken to be one entity for the purposes of counting the number of employees.

[17] The first question to be determined by the Commission in this instance is whether the respondent and Lomwest are associated entities.

[18] An associated entity is defined in section 50 AAA of the Corporations Act 2001. Considering my findings above regarding the shareholding by Lomwest in the respondent and also the degree of control that Lomwest exercised over the respondent I am satisfied that the two companies were, at the time of the applicant’s employment ending, associated entities.

[19] Consequently in determining the number of employees in the business the employees of both entities are to be counted. I am satisfied then that at the time the applicant’s employment ended the respondent did not employ fewer than 15 employees and so was not a small business.

[20] Given this conclusion the minimum employment period the applicant is required to have served in this instance before she is able to make an application such as this was six months.

[21] Based on my findings above I am satisfied that the applicant has served a period of employment of at least six months.

[22] Consequently the respondent’s objection that Ms Brucciani has not completed the required minimum employment period is hereby dismissed.

[23] The application will be referred for conciliation and the parties will be advised of the date and time in due course.

COMMISSIONER

Appearances:

A Brucciani on her own behalf.

C Strahan on behalf of the respondent.

Hearing details:

2014.

Perth:

October 14.

 1   Exhibit A4.

 2   Exhibit A3.

 3   Exhibit A2.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR556757>