Annette Calvert v Australian National Circus Pty Ltd

[2024] FWC 1828

[2024] FWC 1828

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Annette Calvert
v

Australian National Circus Pty Ltd

(U2024/1006)

COMMISSIONER MCKINNON SYDNEY, 12 JULY 2024

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

1. Ms Annette Calvert was employed by Australian National Circus Pty Ltd trading as Circus Rio (ANC) from 28 August 2023 until 29 January 2024. Prior to that time, she worked in the Circus’s tent crew through MR Home Services & Maintenance (MR Home Services) from 28 July 2023.

1. On 30 January 2024, Ms Calvert applied in time for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth) (the Act). On 23 May 2024, I dismissed a jurisdictional objection to the application after finding that at the time of her dismissal, Ms Calvert was an employee of ANC (the earlier Decision).[1]

1. The question now is whether Ms Calvert has met the minimum employment period such that she can apply to the Commission for an unfair dismissal remedy. The question turns on whether ANC was a small business employer at the time Ms Calvert was dismissed.

1. For the reasons below, I am unable to find that Ms Calvert has met the minimum employment period. The application will be dismissed.

Legal framework

1. Section 382 of the Act provides that a person is protected from unfair dismissal if, at the relevant time:

·   they have completed at least the minimum employment period; and

·   they are either covered by a modern award, employed under an enterprise agreement that applies to them or earn an annual income of less than the “high income threshold”.

1. The minimum employment period is defined in section 383 of the Act. If the employer is not a small business employer, the minimum employment period is 6 months ending at the earlier of when the person is given notice of dismissal, or immediately before the dismissal. If the employer is a small business employer, the minimum employment period is one year from the earlier of those times.

1. A period of employment is defined in section 384 as “the period of continuous service the employee has completed with the employer” at a particular time. A period of service as a casual employee does not count towards the period of employment unless the employment was on a regular and systematic basis, and during the period of service, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.[2]

1. A national system employer is a small business employer if they employ fewer than 15 employees at the relevant time.[3] Casual employees are only included in this count if they are “regular casual employees”, which is defined as those who have been employed as a casual on a regular and systematic basis.

Consideration

1. In the earlier Decision[4], I made the following findings of relevance as to whether Ms Calvert has completed the minimum employment period:

1.   There is no written contract between the parties.

2.   Ms Calvert was engaged by Mr Matthew De Graaf trading as MR Home Services & Maintenance (MR Home Services) in his capacity as the “Tent Boss” for the circus. Mr De Graaf runs the tent and logistics side of the business in consultation with Mr Yuri Abrosimov, Director of ANC.

3.   Ms Calvert commenced work in the tent crew from 28 July 2023.

4.   On and from 20 October 2023, Ms Calvert was paid directly by ANC. It was a condition of payment that she provide ANC with a tax invoice bearing her own Australian Business Number (ABN).

5.   On 29 January 2024, ANC dismissed Ms Calvert.

6.   At the time of her dismissal, Ms Calvert was employed by ANC.

1. As to whether ANC is a small business employer, the limited available evidence is that on 29 January 2024, ANC had 14 identifiable regular employees. In addition to Ms Calvert, these were: Morgan, Jaz, Joel, Danny, River, Johnny, Eduardo, Simon, Tamara, Alex, Barlow, Eddie and Tilly. Although some of these individuals were engaged by ANC as ‘contract’ performers, I take Ms Calvert’s case at its highest and include them in the count of employees on the basis that the nature of their relationship with ANC may also be one of employment rather than contracting.

1. There was also:

1. Mr Yuri Abrosimov (Circus owner) and Mr De Graaf trading as MR Home Services & Maintenance. I exclude Mr Abrosimov and Mr De Graaf from the count of employees on the basis that each was operating their own business and was not an “employee”,

2. Chad, who was a casual employee but not a regular casual employee,

3. Dylan, a motorbike rider/performer who worked for another business, “FMX” and was not employed by ANC, and

4. Other unnamed employees who worked only for the duration of a show (either as ‘contract’ performers or casuals). I exclude these from the count of employees on the basis that they are unidentifiable and for the most part, seem to have been employed as casual employees but not regular casual employees.

1. On this basis, ANC employed fewer than 15 employees at the time of Ms Calvert’s dismissal. ANC was a small business employer and the relevant minimum employment period for the purposes of Ms Calvert’s application for an unfair dismissal remedy is one year.

1. There is no dispute that Ms Calvert’s period of employment with ANC was less than one year. The position does not change if her period of employment also includes the period of service with MR Home Services.

1. I find that Ms Calvert did not complete the minimum employment period as an employee of ANC. Accordingly, it is not necessary to determine the nature of the relationship between Ms Calvert and MR Home Services, or between MR Home Services and ANC, or whether there was a transfer of business and related transfer of employment from MR Home Services to ANC.

Order

1. The application is dismissed.

COMMISSIONER

Appearances:

A Calvert on her own behalf.
Y Abrosimov for the Respondent.

Hearing details:

2024.
Sydney (by video):
June 24.

[1] Calvert v Australian National Circus Pty Ltd [2024] FWC 1325.

[2] Fair Work Act 2009 (Cth), s.384.

[3] Act, ss. 12 (“regular casual employee”) and 23 (“Meaning of small business employer”).

[4] [2024] FWC 1325.

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