Aidan Glick v Domoney Properties Pty Ltd ATF Domoney Investments Unit Trust T/A Eagle Rock Spur Currambine

[2016] FWC 7649

[2016] FWC 7649

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aidan Glick
v
Domoney Properties Pty Ltd ATF Domoney Investments Unit Trust T/A Eagle Rock Spur Currambine
(U2016/9705)

COMMISSIONER WILLIAMS PERTH, 24 OCTOBER 2016

Termination of employment - jurisdiction - minimum employment period.

[1] This decision concerns an application made by Mr Aidan Glick (Mr Glick or the applicant) for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is Domoney Properties Pty Ltd ATF Domoney Investments Unit Trust T/A Eagle Rock Spur Currambine (the respondent).

[2] The respondent has moved for the application to be dismissed on the ground that Mr Glick is not eligible to make an unfair dismissal remedy application because he has not completed the minimum employment period of six months as provided for in section 382 and section 383 of the Act.

[3] The parties were requested to provide written submissions on the matter however having received those it is apparent that the matter involves facts the existence of which are in dispute and in accordance with section 397 of the Act the Commission was required to conduct a conference or hold a hearing.

[4] The central issue in this matter is whether Mr Glick’s service completed with another entity, Tasteful life Pty Ltd ATF the Domoney Holding Unit Trust should count as service for the purposes of the minimum employment period in section 382 of the Act.

[5] At the hearing of this matter evidence was given by Mrs Claudine Glick (Mrs Glick), the applicant’s mother and Mr Gregory Domoney (Mr Domoney) for the respondent.

Factual findings

[6] Having considered the evidence of both witnesses and the written materials and attachments they had provided I find as follows.

[7] There are two relevant entities in this case one being Tasteful Life Pty Ltd ATF the Domoney Holding Unit Trust T/A Eagle Falls Spur Wanneroo (the Wanneroo business) the other being Domoney Properties Pty Ltd ATF the Domoney Investment Unit Trust T/A Eagle Rock Spur Currambine (the respondent).

[8] Both Eagle Falls Spur Wanneroo and Eagle Rock Spur Currambine are restaurants.

[9] The applicant was employed with the Wanneroo business from October 2015 to 17 January 2016.

[10] The applicant was then employed with the respondent from 8 February 2016 until his dismissal on 21 July 2016.

[11] The respondent employed more than 15 employees at the time of the applicant’s dismissal.

[12] The applicant’s employment with the Wanneroo business and then with the respondent was as a casual employee and in neither case was on a regular and systematic basis.

[13] There is a business Spur Corp which is a company listed on the South African stock exchange.

[14] Whilst the Wanneroo business and the respondent both have a similar business model to restaurants run by Spur Corp, in terms of menu and décor, there is no business relationship between Spur Corp and the Wanneroo business nor the respondent.

[15] The evidence is both the Wanneroo business and the respondent are franchises. There is no evidence before the Commission as to the identity of the franchisor. I accept the evidence of Mr Domoney that Spur Corp is not the franchisor of these franchises.

[16] I find that neither of these two entities control the other nor do they have common assets.

Submissions

[17] The respondent submits that the applicant has not completed the minimum employment of six months with the respondent. The respondent further submits that the period of service the applicant worked at the Wanneroo business does not count as service for the purposes of the minimum employment period in this instance.

[18] For the applicant it is submitted that Mr Glick was employed with the Wanneroo business between October 2015 and January 2016. He was transferred to the respondent where he commenced work in February 2016 until his dismissal on 21 July 2016.

[19] The applicant refers to the definition of continuous employment in section 22 of the Act and in particular to subsection (7) which refers to the explanation that there is a transfer of employment of a national system employee from one national system employer to another where the employee becomes employed by the second employer not more than three months after the termination of the employee’s employment with the first employer and the first employer and the second employer are associated entities.

[20] The applicant submits that these provisions are satisfied on the facts of this case and refers to the definition of associated entities in section 50AAA of the Corporations Act 2001 (the Corporations Act). It is submitted that this is a case where section 22(7) of the Act and section 50AAA of the Corporations Act has been satisfied because Spur Corp is the third entity whilst the Wanneroo business and the respondent are respectively the principal and associate entities.

[21] Consequently it is submitted that there has been a transfer of employment and as such it is submitted the service with the Wanneroo business and with the respondent together counts for the purposes of determining whether the applicant has served the minimum employment period. When this is considered it is clear that the applicant has served in total more than six months and so is entitled to make this application.

Consideration

[22] Section 382 of the Act provides that a person is only protected from unfair dismissal, and so able to make an application such as this to the Commission, if they have completed a period of employment with their employer of at least the minimum employment period. In the circumstances of this case considering section 383 of the Act that minimum employment period is six months.

[23] Section 384 is the next section which is relevant in this matter and this is set out below.

“384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”

[24] Subsection 384(1) of the Act provides that an employee’s period of employment with an employer is the period of continuous service the employee has completed with the employer.

[25] The parties have focused their attention on the requirements of subsection 384(2)(b) of the Act and the meaning of continuous service in section 22 in circumstances where there has been a transfer of employment between associated entities in which case service with the first employer will count towards service with the second employer.

[26] Section 50AAA of the Corporations Act deals with the meaning of associated entities and is set out below.

“50AAA Associated entities

(1) One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.

(2) This subsection is satisfied if the associate and the principal are related bodies corporate.

(3) This subsection is satisfied if the principal controls the associate.

(4) This subsection is satisfied if:

(a) the associate controls the principal; and

(b) the operations, resources or affairs of the principal are material to the associate.

(5) This subsection is satisfied if:

(a) the associate has a qualifying investment (see subsection (8)) in the principal; and

(b) the associate has significant influence over the principal; and

(c) the interest is material to the associate.

(6) This subsection is satisfied if:

(a) the principal has a qualifying investment (see subsection (8)) in the associate; and

(b) the principal has significant influence over the associate; and

(c) the interest is material to the principal.

(7) This subsection is satisfied if:

(a) an entity (the third entity) controls both the principal and the associate; and

(b) the operations, resources or affairs of the principal and the associate are both material to the third entity.

(8) For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:

(a) has an asset that is an investment in the second entity; or

(b) has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.”

[27] Considering the facts of the case I am not satisfied on the evidence that the Wanneroo business and the respondent are associated entities as defined in section 50AAA of the Corporations Act above. Consequently in this instance the applicant’s service with the Wanneroo business does not count towards determining his service with the respondent. Consequently for this reason it is clear the applicant has not served the minimum employment period and so was not able to make this application.

[28] However for completeness even if I am wrong on the above and it is the case at law that the Wanneroo business and the respondent are associated entities section 384(2)(a) of the Act is also applicable in this case. This section provides that a period of service as a casual employee does not count towards the employee’s period of employment unless it was on a regular and systematic basis and during that period of service as a casual employee the employee had a reasonable expectation of continuing employment by the employer and that this would have been on a regular and systematic basis. The effect of this provision is that in many cases service as a casual employee does not count towards the minimum employment period that is necessary to have been served before an employee has a right to make an application for an unfair dismissal remedy.

[29] Relevantly in this case the evidence is that the applicant’s employment as a casual employee was not on a regular and systematic basis. Separately there is no evidence that the applicant had a reasonable expectation of continuing employment by the employer and that this would have been on a regular and systematic basis. Neither of the requirements set out in section 384(2)(a) of the Act for when casual employment counts towards the minimum period of employment have been satisfied. Consequently regardless of the other matters that have been argued in this instance, as to the transfer of employment and continuous service questions, none of the applicant’s employment as a casual employee does count towards the minimum employment period. I am satisfied that the applicant has not served the required minimum employment period and so was not able to make this application.

[30] The applicant was not entitled to make this unfair dismissal remedy application and so the Commission is obliged to now dismiss this application. An order to that effect will be issued.

COMMISSIONER

Appearances:

C Glick on behalf of the applicant.

G Domoney on behalf of the respondent.

Hearing details:

2016.

Perth:

October 18.

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