B'Elanna Taafe v Good Health Pharmacy Watsonia & Tatts Agent

[2020] FWC 4186

[2020] FWC 4186

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

B’Elanna Taafe
v
Good Health Pharmacy Watsonia & Tatts Agent
(U2020/8968)

DEPUTY PRESIDENT MASSON MELBOURNE, 26 AUGUST 2020

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

Introduction

[1] On 30 June 2020, Ms B’Elanna Taafe (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment with Good Health Pharmacy Watsonia & Tatts Agent (the Respondent) on 15 June 2020 was unfair.

[2] The Respondent objects to the application on the basis that it was, at the time of the Applicant’s dismissal, a small business employer and that the Applicant had not completed the minimum employment period of 12 months at the time of her dismissal as required under s 383(b) of the Act. Consequently, the Respondent contends that the Applicant is not entitled to pursue relief for her claimed unfair dismissal under the Act. The Respondent also objects to the application on the ground that it complied with the Small Business Fair Dismissal Code (the Code).

[3] Determination of the Respondent’s jurisdictional objection in respect of the minimum employment period was set down for a hearing/conference on 17 August 2020. Materials were filed by the Respondent in accordance with directions issued by the Commission. The Applicant failed to file any materials in respect of the Respondent’s jurisdictional objection.

[4] In proceeding with the hearing/conference on 17 August 2020 and in considering the views of the parties, I determined to hold a conference pursuant to s. 398 of the Act. The Applicant appeared on her own behalf at the conference while Ms Vanny Bui (Ms Bui), who is a Director of the Respondent, appeared for the Respondent

Background and evidence

[5] Ms Bui gave evidence that the Applicant commenced employment on 15 September 2019. While no formal offer of employment was furnished, Ms Bui did produce a copy of the Tax file number declaration completed by the Applicant on commencement of her employment. 1 The Applicant agreed that her date of commencement of employment was 19 September 2019. There was no dispute that the Applicant ceased employment on 15 June 2020.2

[6] Ms Bui states that at the date of the Applicant’s dismissal on 15 June 2020, there were 10 staff employed by the Respondent. Documents supporting Ms Bui’s evidence were also furnished, including the following;

1. Single touch payroll report lodged with the Australian Tax Office, dated 22 June 2020, showing an employee count of 10. 3

2. Fortnightly roster for the period from 8 June to 21 June 2020 which identified 10 employees. 4

3. JobKeeper Application dated 26 April 2020 which identified 8 eligible employees as at that date. 5

[7] Ms Bui further states that there are no associated entities to the Respondent. At the request of the Commission, further material was filed by the Respondent following the hearing on 17 August 2020 addressing the question of whether there were any associated entities. Statutory declarations were filed on 21 August 2020 by Ms Bui and Mr Sonny Bui who is Ms Bui’s brother, and is a 50% co-owner and co-director of the Respondent .6 Those statutory declarations attested that there were no associated entities to the Respondent. The Applicant did not challenge Ms Bui’s evidence, or the material filed subsequent to the hearing. Nor did the Applicant seek to be heard further in relation to the question of whether there were any associated entities that needed to be considered for the purpose of determining the number of employees.

Statutory Provisions

[8] Before considering the merits of the Applicant’s unfair dismissal application the Commission is required by s.396 to decide certain matters. Section 396 provides as follows:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[9] It is not contested that the application was filed within the 21-day statutory timeframe specified in s.394(2) of the Act. Therefore, the next issue that must be determined is whether the Applicant is a person protected from unfair dismissal (s.396(b)). The question to be answered in respect of s.396(b) is that found at s 382(a) which relevantly states as follows;

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) The person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

…………………………”

[10] The minimum employment period is one year for a small business employer and six months for other employers, as provided by s.383 of the Act which states as follows:

“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.”

[11] Section 23 of the Act relevantly defines a small business 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.”

Consideration

[12] It was not contested that the Applicant was employed by the Respondent for approximately 9 months, from 19 September 2020 until 15 June 2020. Consequently, it follows that if the Respondent was a small business employer at the time of the Applicant’s dismissal, then she is not protected from unfair dismissal because she had not completed the minimum employment period of twelve months at the time of her dismissal.

[13] I am satisfied, and it was not contested that there were no associated entities of the Respondent within the meaning of s 50AAA of the Corporations Act 2001 (Cth). Therefore, it will only be those employees engaged by the Respondent that are relevant for the purpose of calculating the number of employees.

[14] I am further satisfied that the Respondent employed less than 15 employees at the time of the Applicant’s dismissal. Consequently, I am satisfied that the Respondent was a small business employer at the time of the Applicant’s termination of employment.

Conclusion

[15] Having found that the Respondent was a small business employer at the time of the Applicant’s dismissal, the Applicant has not completed the minimum employment period of 12 months with the Respondent at the time of her dismissal (s 382(a) of the Act). I therefore uphold the Respondent’s jurisdictional objection concerning the minimum employment period. The Applicant’s unfair dismissal application is dismissed. An Order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

B. Taafe on her own behalf

V. Bui for the Respondent

Hearing details:

2020
Melbourne
17 August

Printed by authority of the Commonwealth Government Printer

<PR721693>

 1   Exhibit R2, Tax file number declaration of Ms B’Elanna Taafe dated 28 September 2019.

 2   Exhibit R3, Termination of employment letter, dated 15 June 2020

 3   Exhibit R5, Single touch payroll report, dated 22 June 2020

 4   Exhibit R6, Fortnightly roster for period 8 June – 21 June 2020

 5   Exhibit R7, Business enrolment for JobKeeper wage subsidy, dated 26 April 2020

 6   ASIC Company Statement - extract of particulars for Lowprice Pharmacy Watsonia Pty Ltd