Clayton Alexander v Surfers Paradise Anglican Crisis Care Inc

[2018] FWC 6722

[2018] FWC 6722

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Clayton Alexander
v
Surfers Paradise Anglican Crisis Care Inc.
(U2018/7469)

DEPUTY PRESIDENT DEAN SYDNEY, 2 NOVEMBER 2018

Application for relief from unfair dismissal – minimum employment period (Small Business).

[1] On 20 July 2018 Mr Clayton Alexander made an application to the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 for a remedy in respect of his dismissal by Surfers Paradise Anglican Crisis Care Incorporated(SPACC).

[2] SPACC raised a jurisdictional objection to the application on the grounds that it is a small business employer and that Mr Alexander had not completed a minimum employment period.

[3] In this decision I am required to determine whether Mr Alexander had served the minimum employment period.

[4] The application was listed for a jurisdictional hearing on 30 October 2018.

[5] At the hearing, Mr Alexander appeared on his own behalf. SPACC sought permission to be represented by Mr C Muir, solicitor. Permission was granted on the basis that I was satisfied that the requirements of s.596(2)(a) of the Act were met.

Relevant Legislation

[6] Section 382(a) of the Act provides:

“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 ...”

[7] The definition of a minimum employment period is defined in s.383 of the Act:

“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.”

[8] Section 23 sets out the meaning of ‘small business employer.’ It states:

“(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.”

Evidence and Submissions - Small Business Employer

[9] SPACC submitted that at the date of termination of Mr Alexander, being 13 July 2018 (the relevant date), it employed fewer than 15 employees and was therefore a ‘small business employer’ within the meaning of s.23 of the Act.

[10] In its Form F3 (Employer Response) filed on 17 August 2018, SPACC asserted that it had eight employees (including Mr Alexander) at the time of the termination of Mr Alexander’s employment. A witness statement from Reverend Jon Brook, General Manager of SPACC, also claimed that SPACC had eight employees on the relevant date. Annexed to the Reverend Brook’s statement was a payroll summary that listed all SPACC employees. 1 Reverend Brook said that the list was a definitive record of all employees of SPACC.

[11] Mr Alexander submitted that SPACC did have 15 or more employees at the relevant date, though made no specific submissions nor submitted any written evidence as to who those employees were and on what basis they were employed by SPACC.

[12] Further, or in the alternative, Mr Alexander submitted that SPACC was an associated entity, within the meaning of s.12 of the Act and s.50AAA of the Corporations Act 2001 (Cth), of the Corporation of the Synod of the Diocese of Brisbane. However, Mr Alexander made no specific submissions nor submitted any written evidence to establish that SPACC was in fact an associated entity of the Corporation of the Synod of the Diocese of Brisbane, within the meaning of s.50AAA of the Corporations Act 2001 (Cth).

The Evidence and Submissions – Minimum Employment Period

[13] There was no dispute between the parties that Mr Alexander’s employment relationship with SPACC came to an end on 13 July 2018.

[14] SPACC submitted that Mr Alexander commenced his employment duties on 8 August 2018. SPACC submitted that the commencement date of Mr Alexander’s employment is established by the Centrelink Employment Separation Certificate, which was annexed to both Mr Alexander’s Form F2 Unfair Dismissal Application and the Statement of Reverend Brooks. 2 Further, SPACC tendered a payroll summary for Mr Alexander for the year ending 30 June 2018,3 which SPACC submitted confirms the commencement date for Mr Alexander’s employment was 8 August 2017.

[15] Mr Alexander rejects the SPACC’s submissions and gave oral evidence at the hearing on 30 October 2018 that he had commenced employment with SPACC prior to 8 August 2018. Mr Alexander did not, when questioned, specify an alternative commencement date nor produce any written evidence that his employment commencement date was other than 8 August 2018. Mr Alexander did, however, maintain that he believed he had commenced employment with SPACC prior to 8 August 2017. Mr Alexander also confirmed that he had commenced in a volunteer capacity, and Reverend Brook gave evidence that there were a large number of volunteers involved in the work of SPACC.

Consideration and Conclusion

[16] Based on the evidence and submissions made in this matter, I am satisfied and find that SPACC was a small business employer within the meaning of s.23 of the Act. In this regard I accept the payroll records and evidence of Reverend Brook. Given the large number of volunteers, it is understandable that Mr Alexander may have considered there were 15 or more employees, however this was not supported by the evidence.

[17] Further, I am satisfied on the evidence and submissions presented in this matter that Mr Alexander commenced employment with SPACC on 8 August 2018. Again, the payroll records show that this was the commencement date. Mr Alexander did work in a volunteer capacity prior to this date, but there is no evidence which would support a finding that his employment commenced before 8 August 2018. Accordingly, I find that Mr Alexander had not completed the minimum employment period within the meaning of s.383 of the Act and is not a person protected from unfair dismissal by s.382(a) of the Act.

[18] Accordingly, I uphold the SPACC’s jurisdictional objection and dismiss the application. An order to that effect will be issued separately.

DEPUTY PRESIDENT

Appearances:

C Alexander, on his own behalf.

C. Muir, for Surfers Paradise Anglican Crisis Care

Hearing details:

2018.

Brisbane:

October, 30.

Printed by authority of the Commonwealth Government Printer

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 1   Exhibit 1, Annexure RJB-4.

 2   Exhibit 1, Annexure RJB-5.

 3   Exhibit 1, Annexure RJ-6.