Brady Slot v Onset Design Pty Ltd

[2024] FWC 2221

[2024] FWC 2221

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Brady Slot
v

Onset Design Pty Ltd

(U2024/7981)

COMMISSIONER YILMAZ MELBOURNE, 20 AUGUST 2024

Application for an unfair dismissal remedy – minimum employment period

1. On 10 July 2024 Mr Brady Slot (the Applicant) made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) in relation to the termination of his employment with Onset Design Pty Ltd (Onset or the Respondent). In seeking an unfair dismissal remedy Mr Slot alleges that his dismissal on 24 June 2024 was unfair.

1. Onset submit that it is a small business and as Mr Slot did not meet the minimum employment period, the Commission has no jurisdiction to hear the substantive application. Onset submit that Mr Slot’s employment commenced on 28 August 2023 and the dismissal took effect on 24 June 2024, which is a period of less than 12 months service and less than the minimum employment period required by the Act’s unfair dismissal protections[1].

The Respondent’s submissions and evidence

1. Onset was represented by their Managing Director, Mr Steven Hunter. Mr Hunter provided a signed statement and witness evidence and states that:

1.   The Applicant’s employment was for a duration of 10 months;

2.   The Respondent is a small business with less than 15 employees.

1. Evidence tendered in support was the Applicant’s signed letter of offer of employment[2], final payslip[3] and list of employees of Onset and Lunr Labs[4] - a related entity and the contractors engaged by Onset, of which the total is less than 15 employees. 

The Applicant’s submissions

1. The Applicant did not file submissions, but in an email after he was reminded about his late submissions, he wrote that he was unable to provide evidence in relation to the jurisdictional objection and while he questioned the validity of the Respondent’s evidence he states “I’m happy for you to determine whether this is sufficient.” Mr Slot advised that he relied on his form F2 application.[5]

The legislation

1. The Commission can order a remedy for unfair dismissal if it is satisfied that an applicant was protected from unfair dismissal and is unfairly dismissed.[6] Sections 382 and 383 of the Act provides that a person is protected from unfair dismissal if they have completed a minimum employment period of 12 months if a small business employer, or six months if not a small business employer. A small business employer is defined as a business with 15 or fewer employees. Onset submit they are a small business employer, therefore the minimum employment period in this matter is twelve months. The relevant provisions of the Act are sections 382 and 383.

1. The relevant sections of the Act are:

“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.”

1. The minimum employment period required to have been served to comply with s.382(a) is 12 months.

1. Section 383 provides:

“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.”

1. The 12 months is calendar months.

Consideration

1. The commencement and dismissal date of the employment was not contested between the parties. The period of employment is more than 6 months but less than 12 months.

1. Onset identified a related business entity with 2 employees which are included in the total number of employees.[7]

1. A small business is defined in s.23 of the Act as a business employing fewer than 15 employees. The total number is a headcount of full-time, part-time and regular casual employees. Mr Hunter added to his list 2 individuals engaged as contractors, which he submits are not employees. Accordingly, Mr Hunter’s evidence shows 11 employees across the related entities. Although the list does not identify the employment status of the individuals, even if the evidence found the contractors were employees, which is not necessary in this matter to determine, the total number employed at the time of Mr Slot’s dismissal is less than 15.

1. I find and I am satisfied on the evidence that Onset is a small business with fewer than 15 employees at the time of Mr Slot’s dismissal. Mr Slot did not meet the minimum employment period of 12 months. The application is not made in accordance with the Act and has no prospects of success as the Commission does not have jurisdiction to determine the merits of the application.

Conclusion

1. For the above reasons, I am satisfied that Mr Slot’s application does not meet the minimum employment period jurisdictional requirement for an unfair dismissal remedy. The requirement of s.383 is not met and therefore s.382 of the Act. On this basis the application is dismissed pursuant to ss.587(1)(a) and (c) of the Act.

COMMISSIONER

Appearances:

B Slot, Applicant
S Hunter and S Hunter for the Respondent

Hearing details:

2024.
Melbourne (via Microsoft Teams):
August 19.

[1] Fair Work Act 2009 (Cth) s 382.

[2] Exhibit R2.

[3] Exhibit R3.

[4] Exhibit R1.

[5] Email from B.Slot, 14 August 2024, 15:45pm.

[6] s.390 Fair Work Act 1990.

[7] Associated entities are taken into account, see Pretorius v Gardens of Italy Pty Ltd[2016] FWC 2503 (O’Callaghan SDP, 22 April 2016),

Printed by authority of the Commonwealth Government Printer

<PR778481>