Ciarah Mckenzie v Ninkovic Pty Ltd T/A Coonawarra Farm Resort

[2025] FWC 38

[2025] FWC 38

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ciarah Mckenzie
v

Ninkovic Pty Ltd T/A Coonawarra Farm Resort

(U2024/12753)

DEPUTY PRESIDENT O’NEILL MELBOURNE, 7 JANUARY 2025

Application for an unfair dismissal remedy Jurisdictional Objection Dismissed

1. Ms Ciarah McKenzie has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). The respondent is Ninkovic Pty Ltd T/A Coonawarra Farm Resort. 

1. Section 396 of the Act states that the Commission must decide certain matters relating to an unfair dismissal application before considering the merits of the application. One of these is whether the person was ‘protected from unfair dismissal’. Section 382 states that a person is protected from unfair dismissal if the person has completed a period of employment with the employer of at least the ‘minimum employment period’ and meets certain other conditions. 

1. Section 383 states that the ‘minimum employment period’ that a person must have served with an employer in order to be able to bring an unfair dismissal application is six months, or, where the employer is a small business employer, one year.  

1. The Respondent asserts it is a small business employer, however this is disputed by the Applicant. 

1. The Applicant provided the names of 18 persons whom she contends were employees of the Respondent at the time of the dismissal. The Respondent’s unchallenged evidence is that: 

·   three of the individuals are not employees of the Respondent; 

·   the remaining 15 employees comprise 5 ongoing full-time and part-time employees, and 10 casual employees; 

·   of the 10 casual employees, 4 were not employed on a regular and systematic basis and are therefore excluded from the count of 15 employees.¹ 

1. On the basis of the Respondent’s evidence, I find that as at 8 October 2024, the Respondent was a small business employer within the meaning of the FW Act. Therefore, the relevant minimum employment period the Applicant must have completed to be eligible to make an unfair dismissal application is 12 months.

1. There is no dispute about when the Applicant’s employment ended. That occurred on 8 October 2024. However, there is a contest about when the employment commenced. The Applicant contends that she commenced employment on 14 September 2023. The Respondent contends that she commenced employment on 16 October 2023. If the employment commenced as the Respondent asserts on 16 October 2023, the Applicant had been employed less than 12 months.

1. On 14 September 2023 the Respondent sent the Applicant a ‘welcome email’.² The email read: 

“Congratulations on joining the Coonawarra team! 

As mentioned on the phone, please come in at 8:30 am on Tuesday 19^th September for your first shift. I will meet you at the main office and give you a quick tour of the place before you meet all the staff and we settle in for a training day. You will likely be needed until at least 3pm, but probably until 5pm. Just wear something casual.

Krystal will send you the onboarding paperwork shortly. I will also send you a roster and a link for the water qualification training being held on 2^nd October.” 

1. The Respondent’s records also show that on 18 September 2023 the Applicant was added into its HR system with the first entry “added employee, note – Expected start date mid to late October’. Other entries were her address, superannuation membership, ‘opening balance’ some but not all tax details, mobile number, basic information, payroll frequency.³ 

1. The parties agree that the Applicant first attended on 25 September 2023. The Respondent contends that this was an unpaid “trial shift with the business on the 25/9 so her fit in the team could be determined.”⁴ The Respondent also submits that this was necessary because the Applicant was not permitted on site, other than for a supervised trial, until she had obtained a Working With Children Check, and this was not obtained until 13 October 2023.⁵ The Respondent acknowledges that neither the ‘welcome’ email of 14 September, nor any other documents before the Commission, indicate that the Applicant was only going to be employed if she successfully completed an unpaid trial. It submitted that the ‘welcome’ email does not mean that the employment commenced at that date, as that can only occur when the onboarding process is complete. 

1. The Applicant disputes this description of what occurred and says that she was not told that the offer of employment was conditional on a successful unpaid trial. Further, she contends that she was paid the amount of $201.95 on 26 September 2023.⁶ The Respondent denies that any such payment was made to the Applicant. 

1. There was conflicting evidence about whether the Applicant was or was not paid by the Respondent for the shift on 25 September 2023. The Applicant produced a bank statement showing a payment on that date in the amount of $201.95 described as “Wages Coonawarra Farm 301 500”.⁷ The bank statement was blurred to not disclose other unrelated transactions. The Respondent contends that it has exhaustively examined its records, and no such payment was ever made. In support it provided several documents, including the payroll transaction details for the Applicant for the period 1 September 2023 to 20 October 2024 which indicates the first payment was made to the applicant on 24 October 2023 in the amount of $544.⁸ The Respondent also provided the payslip history for the Applicant which similarly shows the first entry being a payment on 24 October 2023 of $544.⁹ The Respondent also provided a copy of a bank statement showing payment of wages for all employees dated 26 September 2023, which shows no payment was made to the Applicant.¹⁰ Further, the extracts from the HR system records that on 23 October 2023 several entries were made including adding a ‘start date’ of 9 October 2023, the Applicant’s tax file number, and her bank account (which is the same bank account the Applicant produced the statement showing the payment of $201.95).¹¹ The Respondent sought to challenge the bank statement provided by the Applicant because it submitted that no payment could have been made to her prior to these details, especially her bank account, being added to the system and that they had spent a great deal of time examining their records and could find no record of any such payment being made. Accordingly, I arranged for the Applicant to provide to chambers, on a confidential basis, an unblurred copy of the bank statement showing the payment. I did not consider it appropriate to provide the unblurred copy to the Respondent as it contained sensitive personal information which was not relevant. However, I advised the parties that my examination of the unblurred copy of the statement shows that the payment was made, and also showed the next transaction to be a payment on 24 October 2023 with the same description and code as the entry on 26 September 2023, in the sum of $544. This payment aligns with the first payment recorded in the payslip history and payroll transaction details provided by the Respondent. The Respondent also produced a screenshot of its payroll system which record a timesheet entry being approved for the period 25 September – 1 October 2023 ¹² The Respondent’s explanation for this entry is that “all staff attending an unpaid trial shift are required to clock on with the business to fulfil the requirements of the company’s Child Protection Policy”¹³. Accordingly, it submits that the approval of the timesheet simply records her attendance, on a supervised trial, on 25 September 2023 and does not evidence any payment. 

1. No ready explanation for this discrepancy is apparent and I appreciate the difficulty of proving a negative, that is, the Respondent proving that something did not occur. Overall, in light of the positive evidence of the Applicant including the bank statement, I find it more likely than not that she was paid for the shift on 25 September 2023. However, ultimately, in my view whether it was paid or unpaid is not determinative of the date the Applicant’s employment started. That is because the evidence does not satisfy me that the Applicant’s employment with the Respondent was conditional upon successful completion of a trial, whether paid or unpaid. 

1. I agree that the Applicant’s employment on a casual basis did not commence upon receipt of the ‘welcome’ email of 14 September. However, there was also nothing in the email of 14 September 2024 or other evidence evidencing that the offer of employment was contingent upon successful completion of a work trial. The Respondent referred on several occasions to the “Victorian Hospitality rules” as a source of its ability to undertake unpaid trials. However, it was unclear what this was a reference to. Unpaid trials are permitted in very limited circumstances. Critically I am not satisfied that completion of a successful trial was a condition prior to the commencement of employment. If the Applicant did not display the required “fit in the team” on 25 September 2023, the Respondent could have simply ended the employment at that point. However, the trial was successful and the employment continued. In the circumstances, I find that the Applicant’s employment commenced on 25 September 2023 when she attended for her first shift.  

1. Accordingly, I find that the Applicant’s employment commenced on 25 September 2023 and ended on 9 October 2024. The Applicant has met the minimum employment period of 12 months, and the jurisdictional objection is dismissed. The application will be set down for hearing to deal with whether the dismissal was unfair. 

DEPUTY PRESIDENT

Appearances:
C. McKenzie, the Applicant appearing on her own behalf.
A. Te Pau Konui and J. Taynor, appearing on behalf of the Respondent.

Hearing details:
2024
23 December.
Via Microsoft Teams/

2025
3 January.
Via Microsoft Teams.

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