Bella Rose v Susanne's Place (The Trustee for S Withington Trust)
[2022] FWC 2156
•15 AUGUST 2022
| [2022] FWC 2156 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Bella Rose
v
Susanne’s Place (The Trustee For S Withington Trust)
(U2022/5938)
| COMMISSIONER O’NEILL | MELBOURNE, 15 AUGUST 2022 |
Application for an unfair dismissal remedy - minimum employment period not satisfied – application dismissed.
On 1 June 2022, Ms Rose made an application to the Commission for an unfair dismissal remedy. She contends that she commenced employment on 3 November 2021 and was dismissed by the Respondent on 26 May 2022.
Minimum employment period
The Applicant had been employed for less than 12 months prior to the dismissal and the Respondent claims to be a small business. This raises a jurisdictional issue, as an employee must have completed at least the minimum employment period to be eligible to bring an unfair dismissal claim.[1] For a small business employer, the minimum employment period is one year.[2]
This question was dealt with at a determinative conference on 11 August 2022. Ms Rose, the Applicant, gave evidence as did Ms Withington the owner-operator of Susanne’s Place, a restaurant/bar.
A small business is defined in section 23 of the Fair Work Act 2009 (Cth) as one that employs fewer than 15 employees, including employees of an associated entity. However, casual employees are only counted if they have been employed on a regular and systematic basis.
Ms Withington provided payroll extracts for the weeks ending 22 May 2022 and 29 May 2022, which shows that 7 employees worked during the first of these weeks and 7 the second week, comprising 9 people in total. Payroll extracts were also provided for the same period for another business that Ms Withington operates, Via Boffe. These show the same 6 employees worked both weeks. As Via Boffe was an associated entity, its employees are to be included in calculating the number of the Respondent’s employees.
The Applicant contends that the Respondent had at least 15 employees. Ms Rose provided staff contact lists and the names of employees of both Susanne’s Place and Via Boffe, together with her understanding of whether the employees were employed on a casual or ongoing basis. Ms Rose contends that there were 6 ongoing employees and 9 casual employees, a total of 15 employees. Ms Rose contends that the casual employees were employed on a regular and systematic basis as they were rostered to work at least one shift per week. Ms Rose also contends three of Ms Withington’s children were employees.
Ms Withington’s evidence is that Susanne’s Place is a new restaurant that started trading around 20 April 2022, around 4 weeks before the Applicant’s employment ended. As a brand-new business she says that there were no foreseen or past sales to work from so as to plan, for example, required staffing levels. The business was being managed and arrangements ‘juggled’ hour by hour and day by day as bookings were made and cancelled. This meant that in the period immediately before Ms Rose’s employment ended, whilst rosters were posted, they were changed on an hourly and daily basis and there was no systematic roster operating. Ms Withington said that the casual employees were mostly school children or students who were told they would be rostered on an ‘as needed’ basis, and in practice they would sometimes work one hour, sometimes two shifts in a row, sometimes 3 hours and sometimes not at all. In relation to her own children, Ms Withington’s evidence which I accept, is that two of her children have never been employees of the business, and one is employed on a casual basis from time to time but did not work in the period immediately before the Applicant’s employment ended.
I accept Ms Withington’s evidence, and in circumstances where the business had been trading for only around 4 weeks, I am not satisfied that the casual employees were employed on a regular and systematic basis. Not all the casual employees commenced at the same time, so at its highest, some casual employees were rostered but not actually required to work shifts for a 4 week period. This is insufficient, in my view, to establish that they were employed on a regular and systematic basis.
Excluding the 4 employees of Susanne’s Place that the Applicant identified as casual employees, I find that the Respondent had fewer than 15 employees immediately before 26 May 2022. I am satisfied that the Respondent is a small business employer, and therefore Ms Rose was required to have completed 12 months’ service in order to be eligible to make an unfair dismissal application. As she has not, her application must be dismissed.
The application is dismissed. An order to that effect will be issued separately.
COMMISSIONER
Appearances:
B Rose, Applicant.
S Withington for the Respondent.
Hearing details:
2022.
Melbourne (by video):
August 11.
[1] Fair Work Act 2009 (Cth) s.382.
[2] Ibid s.383.
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