Belinda Talsma v Coco's Early Learning Childcare Centre T/A Coco's Early Learning Centre

[2016] FWC 1653

[2016] FWC 1653

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Belinda Talsma
v
Coco’s Early Learning Childcare Centre T/A Coco’s Early Learning Centre
(U2015/15651)

COMMISSIONER CIRKOVIC MELBOURNE, 16 MARCH 2016

Application for relief from unfair dismissal – Jurisdiction – Minimum employment period – Application dismissed.

Introduction

[1] On 18 December 2015, Miss Belinda Talsma (the Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal by Coco’s Early Childcare Centre (the Respondent).

[2] On 30 December 2015, the Commission wrote to the Applicant to advise that her Form F2 – Unfair Dismissal Application (Unfair Dismissal Application) indicates that she was not employed for the minimum employment period required under the Act.

[3] On 1 February 2016, the Respondent filed a Form F3 – Employer Response to Unfair Dismissal Application (Employer Response) to the Applicant’s Unfair Dismissal Application.

[4] This matter was heard on 16 March 2016 to determine whether the Applicant is a person protected from unfair dismissal.

[5] The Applicant gave evidence on her own behalf. Mrs Ester Yefet and Mrs Anna Lahmy gave evidence for the Respondent. Mrs Yefet is a manager and coordinator at the Respondent company. Mrs Lahmy is the owner of the Respondent company.

Background

[6] The Applicant states in her Unfair Dismissal Application that she commenced her employment on 19 June 2015, and that her dismissal took effect on 17 December 2015. However, at the hearing the Applicant confirmed that she commenced her employment at the Respondent on 22 June 2015. The Applicant also confirmed that her dismissal took effect on 17 December 2015.

[7] The Respondent states in their Employer Response that the Applicant commended her employment on 22 June 2015 and that her dismissal took effect on 17 December 2015. The Respondent attached to their Employer Response a document headed ‘Offer of Employment’ from the Respondent to the Applicant. The Offer of Employment was signed by the Applicant. The Offer of Employment provides that the Applicant’s commencement date was 22 June 2015. Ms Yefet and Mrs Lahmy confirmed these dates as correct at the hearing.

[8] The Offer of Employment also provided that the Applicant was employed on a full-time basis.

[9] The Respondent also attached a Centrelink ‘Employment Separation Certificate’ to their Employer Response. The Employment Separation Certificate provides that the Applicant commenced employment with the Respondent on 22 June 2015 and ceased on 17 December 2015.

[10] Therefore, it is not in contest that the Applicant commenced her employment with the Respondent on 22 June 2015 and her dismissal took effect on 17 December 2015. Therefore, the Applicant was employed by the Respondent for a period of 5 months and 26 days.

Protection from unfair dismissal

[11] Section 382 of the Act sets out the circumstances where a person is be protected from unfair dismissal. Section 382 of the Act is 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

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[12] Section 383 of the Act defines the meaning of ‘minimum employment period’. Section 383 of the Act is 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.”

[13] Section 23 of the Act defines the meaning of ‘small business employer’. Section 23 of the Act is 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.”

[14] The Respondent states in its Employer Response that it employed 30 people at the time the Applicant was dismissed. Accepting this, I am satisfied that the Respondent is not a small business employer within the meaning of s.23 of the Act.

Consideration

[15] As I am satisfied that the Respondent is not a small business employer, in order for the Applicant to be a person protected from unfair dismissal, I must find that the Applicant completed a period of employment with the Respondent of at least six months at the time the Applicant was given notice of the dismissal or immediately before the dismissal (whichever is earlier).

[16] An employee’s period of employment commences on the employee’s first day at work.  1 As agreed between the parties and stated above, the Applicant’s employment commenced on 22 June 2015.

[17] Where there is payment in lieu of notice, the dismissal takes effect on the last date worked by the employee.  2 As agreed between the parties and stated above, the Applicant’s dismissal took effect on the Applicant’s last date worked, being 17 December 2015.

[18] Therefore, I find that the Applicant completed a period of employment with the Respondent for a period of 5 months and 26 days at the time the Applicant was given notice of the dismissal on 17 December 2015. Accordingly, the Applicant did not complete the prescribed minimum employment period of six months and is therefore not a person protected from unfair dismissal pursuant to s.382 of the Act.

[19] The application must be dismissed. An Order giving effect to this decision will be issued.

COMMISSIONER

Appearances:

Miss Belinda Talsma on her own behalf

Mrs Ester Yefet and Mrs Anna Lahmy for Coco’s Early Learning Childcare Centre

Hearing details:

2016

16 March.

 1   Corner v SkyCity Adelaide Pty Ltd (2011) 204 IR 63, [7]

 2   Siagian v Sanel Pty Ltd (1994) 122 ALR 333, 355

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