Chin Yeong Moy v AAA Honda Group T/A AAA Honda Recyclers

[2018] FWC 4543

[2018] FWC 4543

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Chin Yeong Moy
v
AAA Honda Group T/A AAA Honda Recyclers
(U2018/5589)

DEPUTY PRESIDENT MASSON MELBOURNE, 7 AUGUST 2018

Application for an unfair dismissal remedy – small business employer – minimum employment period not served – application dismissed.

Introduction

[1] On 30 May 2018, Chin Yeong Moy (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which he asserted that the termination of his employment with AAA Honda Group T/A AAA Honda Recyclers (the Respondent) was unfair.

[2] The Applicant was employed by the Respondent from 1 July 2017 until his termination of employment on 26 May 2018, a period of 10 months and 25 days. The Applicant submitted that he was dismissed by the Respondent during a meeting on 26 May 2018 for a refusal to follow instructions and that he had not received a letter of termination.

[3] The Respondent objects to the application on the basis that it was, at the time of the Applicant’s claimed dismissal, a small business employer and that the Applicant had not completed the minimum employment period (12 months) at the time of his dismissal as required under s 383(b) of the Act. Consequently, the Respondent contends that the Applicant is not entitled to pursue relief for his claimed unfair dismissal under the Act. The Respondent also objects to the application on the ground that the Applicant was not dismissed but resigned his employment.

[4] Determination of the Respondent’s jurisdictional objection on the grounds of the minimum period of employment not having been met was set down for a hearing/conference and was conducted by telephone before me on 3 August 2018.

[5] I decided to conduct a conference pursuant to s 398 of the Act to determine the jurisdictional objection raised by the Respondent.

[6] The Applicant appeared at the conference and gave evidence on his own behalf. Mr David Caswell appeared at the conference and gave evidence on behalf of the Respondent.

Legislative framework

[7] In order to be protected from unfair dismissal, a person must have completed a period of employment with his or her employer of at least the minimum employment period as per s.382(a) of the Act which relevantly states as follows:

“382 When a person is protected from unfair dismiss

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

….”

[8] 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.”

[9] 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.”

Submissions and evidence

[10] The Applicant gave evidence that he commenced employment with the Respondent on 1 July 2017 while the Respondent submitted that the Applicant actually commenced employment on 3 July 2017. No formal offer of employment or payslips were tendered that would resolve the difference in commencement dates submitted by the parties. Ultimately nothing turns on that difference in commencement dates. Both parties agreed that the date of termination was 26 May 2018.

[11] Mr Caswell gave evidence, 1 which the Applicant confirmed,2 that the Respondent employed four staff members (including Mr Caswell) at the time of the Applicant’s dismissal. The employees identified were:

(i) Mr David Caswell

(ii) Mr Chin Yeong Moy

(iii) Mr Shen Fei Phua

(iv) Mr Hyeok Lee

[12] Mr Caswell also gave evidence that he was a partner of one associated entity, named ‘Elektrohouse’, at the time of the Applicant’s dismissal. He confirmed that there were no employees engaged in that business at the time of the Applicant’s dismissal.

Consideration

[13] I am satisfied, that the Applicant was employed by the Respondent for 10 months and 25 days, from 1 July 2017 until 26 May 2018. Consequently, it follows that if the Respondent was a “small business employer” at the time of the Applicant’s claimed dismissal, then he is not protected from unfair dismissal because he had not completed the minimum employment period of twelve months at the time of his dismissal.

[14] I am also satisfied that while there was an associated entity of the Respondent within the meaning of s 50AAA of the Corporations Act 2001 (Cth), it did not employee any staff at the date of the Applicant’s dismissal. Therefore, it will only be those employees engaged by the Respondent that are relevant for the purpose of calculating the number of employees.

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

Conclusion

[16] Having found that the Respondent was a “small business employer” at the time of the Applicant’s employment cessation, I am satisfied that the Applicant has not completed the minimum employment period of 12 months with the Respondent at the time of his alleged 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:

CY Moy on his own behalf.

D Caswell for the Respondent.

Hearing details:

2018.

Melbourne (by telephone).

August 3.

Printed by authority of the Commonwealth Government Printer

<PR609643>

 1   Exhibit R2, Witness statement of Mr David Caswell.

 2   Exhibit A1, Applicant’s Outline of arguments at paragraph [2x].