Alexander Barkla v Middle Beach Education and Recreation Centre Inc T/A Middle Beach Caravan Park

[2017] FWC 1681

[2017] FWC 1681

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Alexander Barkla
v
Middle Beach Education and Recreation Centre Inc T/A Middle Beach Caravan Park
(U2017/488)

COMMISSIONER HAMPTON ADELAIDE, 24 MARCH 2017

Application for an unfair dismissal remedy – minimum employment period not completed – application dismissed.

[1] Mr Alexander Barkla has made an application under s.394 of the Fair Work Act 2009 (the FW Act) seeking a remedy for an alleged unfair dismissal by his former employer, Middle Beach Education and Recreation Centre Inc T/A Middle Beach Caravan Park (the respondent).

[2] The matter was listed for conciliation by telephone on 21 February 2017 before a Fair Work Conciliator. The conference could not take place due to the Conciliator being unable to contact Mr Barkla, despite several attempts.

[3] The matter was subsequently allocated to the Commission as currently constituted for determination. A directions conference was listed for 9 March 2017 and notice of this conference was provided to both parties, including Mr Barkla via his contact details provided on his application. There was no participation by the applicant, or by anyone on his behalf, at this conference.

[4] The respondent has raised jurisdictional objections in relation to Mr Barkla’s application based upon the fact that it is a small business within the meaning of the FW Act. Section 23 of the FW Act states 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.”

[5] The material presently before the Commission is consistent with the notion that the respondent is a small business within the meaning of the Act. 1

[6] One of the jurisdictional objections arising from the status of the employer is that Mr Barkla had not met the minimum employment period applicable to an employee of a small business; that being 12 months. The relevant provision of the FW Act is set out below:

“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.”

[7] Section 382 of the FW Act also provides that unless an applicant employee has completed a period of employment with his or her employer of at least the minimum employment period, they will not be a person who is protected from unfair dismissal and not eligible to bring an unfair dismissal application. Section 390(1)(a) of the FW Act also confirms that an applicant employee cannot be found to have been unfairly dismissed if they are not “protected” within the meaning of the relevant part of the legislation.

[8] Mr Barkla indicated in his application that his employment commenced on approximately 16 May 2016 and concluded on 30 December 2016. This confirms an employment period less than the relevant necessary minimum employment period.

[9] Arising from the directions conference, the Commission corresponded with Mr Barkla on 9 March 2017, by both letter and email, outlining the above and indicating that on the information currently before the Commission, it appeared he was not eligible to bring his application. Mr Barkla was afforded the opportunity to provide a response by 20 March 2017 and was advised that if a response was not received, the Commission would determine the matter on the basis of the materials before it.

[10] No response was received from Mr Barkla.

[11] In the circumstances of this matter, there are no apparent factual disputes relevant to the jurisdictional objection and it is appropriate that the matter be determined based upon the materials now before the Commission.

[12] I am satisfied that Mr Barkla has not completed the minimum employment period required by s.382 of the FW Act. As a result, he is not protected from unfair dismissal and is not eligible to seek a remedy 2 arising from this application.

[13] Accordingly, the unfair dismissal application must be dismissed. An order 3 to that end is being issued in conjunction with this decision.

COMMISSIONER

 1   Stated in the response provided by the respondent employer and confirmed in a document concerning the employer’s Return to Work SA employer registration details subsequently provided to the Commission.

 2 .s.390(1)(a) of the FW Act.

 3  PR591271.

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<Price code A, PR591271>