Belinda Harrison-Buckby v McMeckan Consulting Pty Ltd trading as Basils Farm

[2018] FWC 6614

[2018] FWC 6614

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Belinda Harrison-Buckby
v
McMeckan Consulting Pty Ltd trading as Basils Farm
(U2018/7491)

DEPUTY PRESIDENT COLMAN MELBOURNE, 14 NOVEMBER 2018

Application for an unfair dismissal remedy – jurisdictional objection – small business –minimum employment period – application dismissed

[1] This decision concerns an application by Ms Belinda Harrison-Buckby for an unfair dismissal remedy made pursuant to s 394 of the Fair Work Act 2009 (Act). Ms Harrison-Buckby was employed by McMeckan Consulting Pty Ltd (Basils Farm) in a part-time capacity from 7 October 2017 until her dismissal on 28 June 2018. She claims that her dismissal was unfair and seeks an order for compensation.

[2] Basils Farm objected to the application on jurisdictional grounds. It contended that Ms Harrison-Buckby has not completed the minimum employment period required by the Act. It submitted that Basils Farm is a small business employer and that the minimum employment period is therefore one year. Ms Harrison-Buckby was employed for only eight months. Basils Farm raised a further jurisdictional objection, namely that the dismissal was consistent with the Small Business Fair Dismissal Code.

[3] The company’s jurisdictional objection in relation to the question of the minimum employment period was listed before me on Friday, 19 October 2018. I conducted the proceeding by way of recorded conference. Ms Kim Dema gave evidence for Basils Farm. Ms Harrison-Bucky gave evidence for herself. The central issue in contest was the number of employees employed by Basils Farm at the time of Ms Harrison-Buckby’s dismissal. The company contended that it employed 13 employees for the purposes of the definition of ‘small business employer’ in the Act. Ms Harrison-Buckby submitted that the number was 15 or more.

Minimum employment period

[4] The Commission can only order an unfair dismissal remedy if the applicant was a person ‘protected from unfair dismissal’ (s 390). This in turn requires that the person have completed a period of employment that is at least the minimum period of employment (s 382(a)). Section 383 provides that, if an employer is a ‘small business employer’, the minimum employment period is one year ending at the time when the person is given notice of dismissal, or immediately before the dismissal, whichever is earlier. If the employer is not a small business employer, the relevant period is 6 months.

[5] Ms Harrison-Buckby was employed for a continuous period from 7 October 2017 to 28 June 2018, approximately 3 months short of one year. If Basils Farm is a small business employer for the purposes of the Act, Ms Harrison-Buckby has not completed the minimum employment period.

[6] Section 23 provides that an employer is a ‘small business employer’ at a particular time if it employs fewer than 15 employees at that time. For the purpose of calculating the number of employees employed at a particular time, all employees of the employer are counted, including the person who was dismissed. However, casual employees are not to be counted unless at the relevant time they had been employed by the employer on a ‘regular and systematic basis’ (s 23(2)(b)). Furthermore, in counting the number of employees employed by an employer, employees of associated entities of the employer ‘are taken to be one entity’; that is, persons employed by such entities are included (s 23(3)).

[7] The company filed a list of the persons it employed at the time when Ms Harrison-Buckby was dismissed, which showed eight permanent employees (full-time and part-time), as well as five casual employees who it said were employed on a regular and systematic basis. Ms Harrison-Buckby was listed as one of the permanent employees. The company also identified three further casual employees who it said were not employed on a regular and systematic basis: Mr Andrew Nurse, Ms Madeleine Mills, and Ms Dana Murphy.

[8] Ms Harrison-Buckby submitted a list of persons she says were employed by the company at the time of her dismissal. As well as the eight permanent and five regular casual employees identified by the company, she contended that Ms Mills was engaged as a casual on a regular and systematic basis. She also submitted that Mr Corey Pfeiffer was employed on this basis. In addition, Ms Harrison-Buckby listed as employees of the company Ms Melisa Thompson, a marketing consultant, Ms Kim Dema, general manager, and Mr Shane Smith, vineyard manager. She contended that the company employed 18 persons for the purposes of s 23, and that it was therefore not a small business employer.

[9] The principal point of difference between the parties concerned the 5 additional persons who Ms Harrison-Buckby said were employees of the company at the time of her dismissal, namely Ms Dema, Mr Smith, Ms Thompson, Ms Mills and Mr Pfeiffer.

[10] At the conclusion of the proceedings I asked Ms Dema to submit its record of hours worked by employees for the six months prior to Ms Harrison-Buckby’s dismissal. I afforded the parties an opportunity to make further comments or submissions about this document. The record of hours was then filed. It showed the hours actually worked by employees of the company from 25 December 2017 to 14 October 2018. Brief further submissions were made by each party.

Ms Dema and Mr Smith

[11] Ms Dema gave evidence that both she and Mr Smith are contractors who provide services to the company, not employees of Basils Farm. Ms Dema is an accountant and Mr Smith is a vineyard manager. Ms Dema produced invoices that she has submitted to the company for service rendered to it, as well as invoices submitted to the company by Mr Smith. Ms Harrison-Bucky knows that Ms Dema and Mr Smith perform work for Basils Farm and suspected that they might be employees. However she did not point to any evidence that would support such a conclusion. She said that Mr Smith provides on-going services to the company and lives on the property but this does not suggest to me that he is an employee. The sworn evidence of Ms Dema and the invoices submitted to the Commission support the conclusion that both Ms Dema and Mr Smith are contractors. I find that they are not employees of the company and that they are therefore to be disregarded for the purposes of s 23 of the Act.

Ms Thompson

[12] Ms Dema gave evidence that Ms Thompson ended her employment with the company on or about 10 June 2018, and that she then went overseas to travel. This evidence was not contradicted and I accept it. Ms Thompson was therefore not an employee of the company at the time of Ms Harrison-Buckby’s dismissal on 28 June 2018.

Ms Mills and Mr Pfeiffer

[13] Ms Mills and Mr Pfeiffer are casual employees. The question is whether they were employed on a regular and systematic basis. The company submitted that they were not employed during the fortnightly pay run in which Ms Harrison-Buckby’s dismissal occurred. However, in order for a casual employee to ‘count’ for the purposes of calculating the number of employees pursuant to s 23, it is not necessary that they be engaged on the day of the dismissal, or during the pay period in which the dismissal took place. I note that s 383, which deals with the minimum employment period, is found in Part 3-2 of the Act, and s 380 defines ‘employee’ for the purposes of this Part as a ‘national system employee’. This in turn is defined in s 13 as an individual so far as he or she is employed, ‘or usually employed’, by a national system employer. The definition of small business employer is framed by reference to a national system employer. Accordingly, if a person is ‘usually employed’ at the time of dismissal, they are an employee for the purposes of s 23. It does not matter that the person was not engaged to work casual shifts on or around the date of dismissal.

[14] Ms Dema said that Ms Mills and Mr Pfeiffer were seasonal casual employees and that they were not engaged on a regular and systematic basis. She said that Ms Mills is sixteen years old and goes to school. She works principally over the school holidays. Ms Dema said that Mr Pfeiffer is a university student who often travels. Ms Harrison-Buckby considers that both of these people worked as casuals on a regular and systematic basis.

[15] The record of hours shows that Ms Mills worked regularly in the months of December 2017 and January 2018, but that from February to the end of June 2018 she worked only 12 shifts, and with no particular pattern. She did not work at all over some periods. In my view, Ms Mills was not employed on a regular or systematic basis. She is to be excluded from the number of employees for the purposes of s 23.

[16] In relation to Mr Pfeiffer, the records show that in the period from early January until the end of June 2018, he worked 48 shifts. Of the 26 weeks in this period, Mr Pfeiffer worked during 19 of them. He did not work at all from 11 June to 13 July 2018, when he was apparently on holiday, but from 14 July 2018 continued to work most weeks. In my view, Mr Pfeiffer was casually engaged on a regular basis. As to whether his engagements were systematic, I note that of the shifts he worked from early January until the end of June, 31 fell on weekends and 17 were on weekdays. On 13 of the 19 weeks in which he worked, he was rostered on both Saturday and Sunday. In my view Mr Pfeiffer’s casual engagements were systematic. They show a pattern of weekend work. I conclude that Mr Pfeiffer’s casual employment with the company was on a regular and systematic basis and that he is to be included in calculating the number of employees employed by Basils Farm for the purpose of s 23 of the Act.

Other casual employees

[17] The company identified Mr Nurse and Ms Murphy as irregular casuals. Ms Harrison-Buckby did not dispute this. Having reviewed the record of hours actually worked, I concur with this assessment. According to the record of hours worked, Mr Nurse worked one shift on each of 11 June 2018 and 16 September 2018. Ms Murphy appears to have worked several shifts in July and August 2018, after Ms Harrison-Buckby was dismissed.

Further contentions of Ms Harrison-Buckby

[18] In further submissions dated 24 October 2018, Ms Harrison-Buckby raised a number of new contentions about other persons she considered might be employed by the company. She submitted that there was no reference in the company’s hours worked document to ‘garden staff’ or ‘farm staff’ who she believes work for the company. She also said that the roster document made no reference to ‘Mark from the cellar’ or ‘Ben (part-time employee)’.

[19] Ms Dema’s further contentions addressed the record of hours and whether particular casual employees were engaged on a regular and systematic basis, but not the new issues that were raised in Ms Harrison-Buckby’s further submission. I therefore scheduled a further recorded conference with the parties to address these matters. This occurred on 8 November 2018. Both Ms Harrison-Bucky and Ms Dema gave further sworn evidence.

[20] Ms Harrison-Buckby said that she had seen several people doing ‘farm’ work or garden work and that there should in her view be a further several employees on the company’s list of employees. Ms Dema said that the company has volunteers working in the garden on a seasonal basis between October and February. The volunteers come from two sources. Some are school children from the local school doing work experience. Others were part of an exchange programme where travellers could receive food and accommodation at the farm in exchange for several hours of work a week on a voluntary basis. She said that none of these people are employed and none are paid. Her evidence was that in any event there were no such volunteers performing work at the time of Ms Harrison-Buckby’s dismissal, which occurred in the middle of winter, which is the ‘off-season’.

[21] Ms Dema said that the only ‘Mark’ employed by the company was Mark Telfer who appears on the company’s list of employees and has already been counted. She said that the only ‘Ben’ it employs is Benjamin Shaw, who is also on the employer’s list of 13 employees.

[22] I accept Ms Dema’s evidence about these matters. It was given spontaneously and candidly. Ms Harrison-Buckby did not offer any evidence or submissions in contradiction of it. I am satisfied that the company does not employ farm or garden staff, and that there is no other ‘Mark’ or ‘Ben’ employed by the company aside from the persons already referred to in the company’s list of employees.

[23] Finally, I note that Ms Dema, who provides accounting services to the company, gave evidence that Basils Farm has two associated entities, but that these are investment companies and do not employ any employees. This evidence was not contested and I accept it.

Conclusion

[24] Accordingly, I find that the number of persons employed by Basils Farm for the purpose of s 23 of the Act, including Ms Harrison-Buckby, was 14, being the 13 employees identified by the company, as well as Mr Pfeiffer.

[25] Based on my findings above, I conclude that Basils Farm is a small business employer and that Ms Harrison-Buckby has not completed the required one year minimum employment period. For this reason her unfair dismissal application is dismissed.

DEPUTY PRESIDENT

Appearances:

B. Harrison-Buckby for herself

K. Dema for McMeckan Consulting Pty Ltd

Hearing details:

2018

Melbourne (by telephone)

19 October, 8 November

Printed by authority of the Commonwealth Government Printer

<PR701779>