Aleesha Moreno v Samarasekera Nominees Pty Ltd as Trustee for Samarasekera Business Trust

[2020] FWC 4417

[2020] FWC 4417

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aleesha Moreno
v
Samarasekera Nominees Pty Ltd as Trustee for Samarasekera Business Trust
(U2020/8760)

DEPUTY PRESIDENT CLANCY MELBOURNE, 20 AUGUST 2020

Application for an unfair dismissal remedy – jurisdictional objection – small business employer – minimum employment period not completed – Application dismissed.

[1] On 24 June 2020, Ms Aleesha Moreno made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal.

[2] In her Form F2 – Unfair Dismissal Application (Form F2), Ms Moreno outlined that she commenced employment with “Sam Samarasekera” on 6 August 2019 as a casual employee and that she was notified of her dismissal on 10 June 2020, with it taking effect that same day.

[3] On 8 July 2020, the Respondent filed a Form F3 – Employer response to unfair dismissal application (Form F3) raising the jurisdictional objection that Ms Moreno’s employment did not meet the minimum employment period.

[4] I conducted a determinative conference on 20 August 2020. Ms Moreno attended, as did Mr Athula Samarasekera for the Respondent. They both gave evidence and made submissions.

Preliminary Procedural Issue

[5] While Ms Moreno named “Sam Samarasekera” as the Respondent in her Form F2, the Form F3recorded the Respondent as “Samarasekera Nominees Pty Ltd as Trustee for Samarasekera Business Trust” with the Australian Company Number (ACN) 631 299 100.

[6] At the determinative conference, I confirmed with both parties that this was the employing entity and determined that I should amend the application for unfair dismissal remedy made by Ms Moreno so as to record “Samarasekera Nominees Pty Ltd as Trustee for Samarasekera Business Trust” as the Respondent. I consider my doing so comes within the circumstances in which it has been held this is possible pursuant to s.586 of the Act. 1

Did Ms Moreno serve the Minimum Employment Period?

[7] Section 382(a) of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period. Section 382(b) outlines additional preconditions which are satisfied by Ms Moreno.

[8] Section 383 of the Act sets out the minimum employment period:

“383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.”

[9] The issue I am required to determine is whether Ms Moreno is a person protected from unfair dismissal at the earlier of the time she was given notice of her dismissal or immediately before it.

[10] In the Form F3, the Respondent asserted that Ms Moreno began working for it on 6 August 2019, was notified of her dismissal on 10 June 2020 and that the dismissal took effect on that day. That Ms Moreno’s employment was of just over ten months duration is not in dispute.

[11] The evidence of the Respondent was that as at 10 June 2020, it employed 10 employees. It submitted it was at that time a small business employer, which is defined in s.23 of the Act as follows:

“23 Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee's employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated; and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”

[12] Ms Moreno did not challenge the Respondent’s assertion that it was a small business employer at the material time. Accordingly, I am satisfied based on the material before me that the Respondent was a small business employer as at 10 June 2020 and I accept the submission of the Respondent that, having commenced employment on 6 August 2019 and been terminated with immediate effect on 10 June 2020, Ms Moreno had not completed the minimum employment period of one year and she is therefore not a person who is protected from unfair dismissal.

[13] As I am satisfied that Ms Moreno has not completed the required minimum employment period, she is not a person who is protected from unfair dismissal. Ms Moreno’s application for an unfair dismissal remedy must therefore be dismissed and an Order to this effect will be issued with this decision. The Commission’s file in this matter will now be closed.

DEPUTY PRESIDENT

Appearances:

Ms Aleesha Moreno for herself.
Mr Athula Samarasekera for the Respondent.

Hearing details:

2020.
Melbourne (by telephone):
August 20.

Printed by authority of the Commonwealth Government Printer

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 1   Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 at [28].