David Able v Farmers Arms Creswick Pty Ltd
[2024] FWC 1463
•26 JUNE 2024
| [2024] FWC 1463 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
David Able
v
Farmers Arms Creswick Pty Ltd
(U2024/3560)
| COMMISSIONER WILSON | MELBOURNE, 26 JUNE 2024 |
Application for an unfair dismissal remedy – objections; whether a person protected from unfair dismissal and whether a small business employer; minimum employment period not served; application dismissed.
Through an application made to the Fair Work Commission (the Commission) on 30 March 2024, David Able alleges he has been unfairly dismissed by the Respondent in this matter, Farmers Arms Creswick Pty Ltd (Farmers Arms Creswick or the Respondent).
Mr Able says to the Commission that he was employed by the Farmers Arms Creswick on 4 April 2023.[1] He puts forward to the Commission that his employment was terminated with effect from 11 March 2024. The Respondent does not agree employment ended in March and instead states that Mr Able’s employment was terminated on or around 3 January 2024.
In an email dated 3 May 2024, Ms Molloy, the Respondent’s owner said that she wished to “cancel conciliation and go to the next stage and schedule a hearing”. She then put forward that there were many reasons for cancelling the conciliation, including that there was no jurisdiction for the Commission to deal with the matter and in particular that “David Able had not been an employee for 2 months prior to him making this application making his application not valid and furthermore he was employed for 10 months as a causal and not 12 months and therefore has no case for unfair dismissal”.[2] The Commission discerned from the above correspondence that the Respondent put forward that Mr Able was not a person protected from unfair dismissal, as he had not completed the minimum employment period and that his dismissal took place some months earlier than the date put forward by Mr Able, meaning that his application for unfair dismissal remedy was made outside of the statutory time limit. The matter was accordingly listed for determination of the Respondent’s jurisdictional objections.
Pursuant to Directions issued by the Commission on 9 May 2024, Mr Able’s application was listed for determination of the jurisdictional matters on Wednesday, 5 June 2024 at 2 PM.
The Respondent’s engagement with this matter has been poor to say the least with it failing to file any material prior to the hearing other than the 3 May 2024 email and a further lengthy email received by my Chambers on 5 June 2024, 19 minutes before the scheduled start of the hearing. Ms Molloy’s 5 June 2024 email set out some element of useful response, however also traversed a large number of irrelevant matters.
Both Mr Able and Ms Molloy participated in the hearing on 5 June 2024.
For the reasons set out below it has been necessary for me to determine whether the Respondent is a small business employer, with me finding that it was at the time of Mr Able’s termination of employment. The implication of this finding is that, in order to be a person protected from unfair dismissal, Mr Able must have worked a minimum employment period of one year at the earlier of the time he was given notice of his dismissal or immediately before the dismissal (ss.382 – 383). The period of employment must then, if necessary, take into account certain casual employment.
Since Mr Able’s employment commenced on 4 April 2023 and ended either on or around 3 January 2024 or on 11 March 2024 it follows he has not, on any analysis of his work, completed the minimum employment period. It follows that he was not at the time of his dismissal a person protected from unfair dismissal and that his application must be dismissed.
BACKGROUND
The evidence and material provided to the Commission by Mr Able is that he was a casual employee of the Respondent for the period between 4 April 2023 and 11 March 2024, with no break in service in that period.[3] Mr Able also puts forward that he had worked consistently an amount of 20 to 25 hours per week in that period and often covered shifts of other staff when they were unable to attend the rostered shifts, sometimes with little or no notice.[4] He worked as a casual bartender or performed other front of house duties.[5] In June 2023 he was rostered as supervisor for the first time.[6] On 28 December 2023 he fell ill with suspected COVID – 19 and was unable to work until 2 January 2024.[7]
On 3 January 2024 there was a disagreement of some degree between Mr Able and Christine Molloy, the owner of the business with whom Mr Able had at some earlier time been in a romantic relationship. Mr Able says that on that day Ms Molloy made an antagonistic remark toward him and he felt it would be best to avoid further conflict or creating an uncomfortable working environment for others and so he left the venue, before his shift had concluded.
Later that day he received a text message from Rowena Miller, the Operations Manager, asking why he left his shift. There were then some further text messages between the two including one in which Ms Miller informed him that he would be taken off the roster due to him walking out of his shift and they arranged to discuss the matter on the following Monday, 8 January 2024. That meeting did not take place for a number of reasons, and there was no meeting between the two until Monday 11 March 2024. In summary the evidence before me shows the following about contact between Mr Able and the managers of the business:
There is no particular reason why the meeting did not take place in January 2024, and Mr Able was injured on 29 January 2024, with his injuries preventing him from working for several weeks;[8]
Towards the end of February Mr Able was told he would not be given any more shifts until he had met with Ms Miller to discuss him walking out on 3 January;[9]
On Monday 4 March 2024 Mr Able contacted Ms Miller by text message but received no reply. He attempted contact with Ms Miller again on 5 March and on that occasion they agreed to meet the same day at 3 PM.[10] Mr Able puts forward that the meeting took place at 4 PM and was attended by Ms Miller and Bonnie, an Assistant Manager, with the meeting not achieving any positive outcome or conclusion. He says that the primary topic of discussion was that he was still waiting to be paid his wages from December and that he was struggling to support himself financially. Mr Able says that Ms Miller adjourned the meeting until 7 March 2024. She and Bonnie took notes during the meeting and asked him to sign them which he did reluctantly, however a copy of the notes are not before the Commission.[11]
On Wednesday 6 March 2024 Ms Miller notified Mr Able by text that the meeting scheduled for 7 March would be rescheduled to 11 March 2024.[12]
On 11 March 2024 at about 2:30 PM Ms Miller messaged Mr Able to inform him that the meeting would be at 5 PM and that he could bring with him a support person if he wished, however he was unable to arrange one at short notice. Mr Able says about the meeting which took place that they discussed his unpaid wages with Ms Miller telling him that many staff refused to or found it hard to work with him because of his attitude, after which she told him that his employment was terminated effective immediately as he had walked out of the shift unprofessionally and then missed a rostered shift. He was told that his position had already been filled.[13]
On 14 March 2024 Mr Able spoke to Bonnie asking if she knew when he would receive his outstanding pay entitlements and the employment separation certificate. Later the same day, Mr Able received a reply from Ms Miller saying that she had confirmed his pay had been processed and he should receive an email with his employment separation certificate. Those things were provided to Mr Able on 15 March 2024.
After his dismissal the Respondent provided Mr Able with a Centrelink Employment Separation Certificate which states he started employment with the Respondent on 3 April 2023 and that his employment ceased on 3 January 2023, which I take to be an error with the date intended to be 3 January 2024. The Certificate asserts that employment ceased as Mr Able “Walked out on shift, failed to attend next shift or meeting” and is signed and dated 14 March 2024.[14] While I take this document into account, it does not lead me to find that the date of termination was actually 3 January 2024. There is no other evidence of a sufficient standing that would cause me to find that date as the actual termination date. In fact, to do so would be contrary to Mr Able’s direct evidence that he was informed by Ms Miller only on 11 March 2024 that his employment had been terminated. In this regard I note that the Full Bench in Bienias v Iplex Pipelines Australia has held that in matters of asserted dismissal, it is the act of the employer that brings about the termination of the employee’s employment.[15]
CONSIDERATION
Section 23 of the Act defines the meaning of “small business employer” thus;
“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, the employee is a regular casual employee of the employer.
(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”
The importance of the definition that a small business employer is one employing fewer than 15 employees at a particular time is that s.383 extends the minimum employment period for the purposes of eligibility to make an unfair dismissal application to one year, with that section and s.382 in these terms;
“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.
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.”
Amongst other matters, s.384 prescribes that certain casual employment does not count towards the employee’s period of employment.
Mr Able gave evidence that at the time of his dismissal there were no less than 15 employees employed by the Respondent,[16] with the implication that the Respondent is not to be treated as a small business employer. In the course of the hearing Ms Molloy stated she disagreed there were 15 employees, putting forward there were only 14.[17]
Because of this objection and since the matter could not be dealt with to finality in the hearing on the basis of the available material, the parties were given directions at the conclusion of the hearing on 5 June 2024 for the filing of material relevant to determination of the Respondent’s small business employer status. The Directions also dealt with the dates and hours Mr Able worked, relevant to determination of the period of his continuous service, discounted as required by ineligible casual employment. That matter is no longer relevant for me to determine however, because of my finding about the Respondent’s small business employer status. The relevant post-hearing Directions were in the following form;
“[3] If the Respondent wishes to dispute the accuracy of the list of employees set out at page 41 of the digital court book for the purposes of the Fair Work Commission assessing whether it is a small business employer it may file in the Fair Work Commission, and serve on the Applicant, such material as it wishes the Fair Work Commission to take account of by no later than 4.00PM on Wednesday 12 June 2024.
[4] Should the Respondent file material in response to direction [3] the Applicant may file in the Fair Work Commission, and serve on the Respondent, such response material as he wishes by no later than 4.00PM on Friday 14 June 2024.”
Ms Molloy filed material in response to these Directions on 12 June 2024 at 4:37 PM together with other uninvited material to which I do not have regard. Mr Able provided nothing in response to Ms Molloy’s material.
It is to be observed in relation to Mr Able’s material, filed prior to the hearing, that five of the people he names are referred to as “Regular Casual”. Ms Molloy’s document is simply a marked up version of the list provided by Mr Able.
Ms Molloy’s marking up contends the status of 6 people putting forward variously that;
Person 2 worked mainly but not exclusively for another business;
Person 3 had only commenced employment “that day”, which I take to be the day asserted by Ms Molloy as the termination date;
Person 8 was away from work as a result of an injury and while employed as an apprentice had not worked for long;
Person 11 “ABN not employed by the company. Has another full time position with another employer and works with us on ABN”;
Person 12 is on long term sick leave;
Person 15 had worked “on an ABN” but later as a part-time employee.
There is insufficient evidence or material to resolve the status of all but Person 11, so I do not remove Persons 2, 3, 8, 12 or 15 from the list of employees.
Ms Molloy’s contention in relation to Person 11 though is capable of acceptance by me. I take her to say that the person is an independent contractor and only works with the Respondent in that capacity. If that is correct, Person 11 plainly is not to be counted in the way required by s.23. It would follow that the Respondent employed no more than 14 employees.
Mr Able had the opportunity to rebut the material put forward on this subject by Ms Molloy but did not do so. As there was no contest on the subject of Ms Molloy’s comments about employees I accept as accurate her characterisation of Person 11. I therefore accept what Ms Molloy has to say about the number of employees employed by the Respondent at the time she contends was the date of dismissal, finding that it employed no more than 14 employees. There is no evidence to suggest that the number of employees was any different on the date contended by Mr Able as the termination date.
Accordingly, I find that the Respondent was a small business employer at either available termination date. Since both dates are within a calendar year of the date on which employment started it is unnecessary for me to determine the actual date of termination of Mr Able’s employment.
It follows that the minimum employment period applicable to Mr Able is one year. Having commenced employment on 4 April 2023 it follows that he has not completed the minimum employment period on either of the available dates of termination of employment.
Mr Able is therefore not a person protected from unfair dismissal and his application must be dismissed. An Order to this effect is issued by me at the same time as this decision.
COMMISSIONER
Appearances:
Mr D. Able for himself
Ms C. Molloy for the Respondent
Hearing details:
2024.
Melbourne (via video conference);
5 June.
[1] Applicant Outline of Argument: Objections, filed 20 May 2024, appearing at Digital Court Book (DCB) p.36.
[2] Email from Chris Molloy to the Fair Work Commission, 3 May 2024, appearing at DCB p.198.
[3] Applicant Outline of Argument: Objections, filed 20 May 2024, appearing at Digital Court Book (DCB) p.36.
[4] Witness Statement of David Able, filed 20 May 2024, appearing at DCB p.72.
[5] Applicant Outline of Argument: Merits, filed 20 May 2024, appearing at DCB p.57; Witness Statement of David Able, filed 20 May 2024, appearing at DCB p.72.
[6] Witness Statement of David Able, filed 20 May 2024, appearing at DCB p.72.
[7] Ibid.
[8] Witness Statement of David Able, filed 20 May 2024, appearing at DCB p.72.
[9] Ibid.
[10] Ibid, p.73.
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Employment Separation Certificate, filed 20 May 2024, appearing at DCB pp.82 – 85.
[15] Mr Boguslaw Bienias v Iplex Pipelines Australia Pty Limited T/A Iplex Pipelines Australia[2017] FWCFB 38
[16] Applicant Outline of Argument: Objections, filed 20 May 2024, appearing at Digital Court Book p.41.
[17] Transcript, PN 138.
Printed by authority of the Commonwealth Government Printer
<PR775677>
0
1
0