David Airoldi v DKMY Enterprises Pty Ltd T/A Workshop

[2016] FWC 8414

[2016] FWC 8414

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Airoldi
v
DKMY Enterprises Pty Ltd T/A Workshop
(U2016/9873)

COMMISSIONER CIRKOVIC MELBOURNE, 23 NOVEMBER 2016

Application for relief from unfair dismissal.

[1] On 29 July 2016, Mr David Airoldi (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (theAct). The Respondent to the application is DKMY Enterprises Pty Ltd T/A Workshop (Respondent).

[2] The Applicant submits he commenced employment at Workshop on 1 July 2013, as a chef. 1 At that time Workshop was owned by Brother Bean Pty Ltd (Brother Bean).2 The Applicant submits that the Respondent became the new owner of Workshop and his new employer on 19 May 2016.3 He submits that he had not been terminated by the former owners.4 The Applicant submits that he resigned on 7, 8 or 9 July 2016, giving four weeks’ notice because he had found a new position.5 Further, as he was to be on sick leave from 21 July 2016, he had told the Respondent that he would return after his sick leave to work out the remainder of his notice period.6 He submits that on 28 July 2016 he received an email from the Respondent to say that his employment had ceased 20 July 2016.7 The Applicant’s last day of work was 20 July 2016.

[3] The Respondent submits that it did not dismiss the Applicant. The Respondent submits the Applicant, on or about 10 July 2016, verbally advised that he would cease his employment with the Respondent on 20 July 2016. 8 The Respondent submits that there was no termination at its initiative because the resignation was voluntary.

[4] The Respondent submits that as per the contract for the sale of Workshop it took no transferring employees from Brother Bean 9. As a result, it submits that the Applicant commenced employment with the Respondent on 19 May 2016.10 The Respondent submits that the Applicant has not met the minimum employment period requirements under the Act.11

Legislative Scheme

[5] Section 382 of the Act sets out the circumstances where a person is be protected from unfair dismissal. Section 382 of the Act is as follows:

“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.”

[6] Section 383 of the Act defines the meaning of ‘minimum employment period’. Section 383 of the Act is 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.”

[7] Section 23 of the Act defines the meaning of ‘small business employer’. Section 23 of the Act is 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.”

[8] Section 385 of the Act details the circumstances where a person has been unfairly dismissed from their employment. Section 385 is as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

Background

[9] On 2 September 2016, the parties were advised by the Commission that the matter had been listed for jurisdiction hearing – minimum employment period. Directions were issued for the filing of witness statements and submissions. The matter was listed for hearing on Thursday, 29 September 2016.

[10] The Applicant was self-represented. The Respondent was self-represented and a Mandarin interpreter was present for Mr Dong Ma, Manager at the Respondent.

Was Mr Airoldi dismissed?

[11] Section 386 defines dismissal in the following terms:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[12] The Respondent disputes that the Applicant was dismissed. The Applicant’s evidence at the hearing was that he resigned. 12 In response to questions from me during the hearing the Applicant confirmed he had resigned because he had found a new position with another employer.13

[13] It is the Applicant’s submission that as the Respondent notified him that his employment had ended on 20 July 2016, before he was given an opportunity to return to work out his notice period, he was dismissed by the Respondent. 14

[14] If the Applicant was not dismissed by the Respondent, there is no jurisdictional basis for him to pursue his unfair dismissal application.

[15] Having considered the evidence, I accept that the Applicant notified the Respondent verbally that he was resigning because he had found a new position. I also accept that the Respondent accepted his resignation. There is no evidence of a forced resignation or a conditional resignation; as such this matter can be distinguished from Nohra v Target Australia Pty Ltd. 15 Any conflict that remains between the parties is in regards to the Applicant’s entitlements, in particular whether the Applicant was entitled to four weeks sick leave. I am not satisfied that the Applicant’s employment was terminated at the initiative of the Respondent.

Conclusion

[16] I have concluded that the Applicant was not dismissed. Dismissal is a fundamental prerequisite for the making of an application pursuant to s.394. It is therefore not necessary for me to deal with the Respondent’s objection that the Applicant has not worked the required of minimum employment period. Accordingly, the application is dismissed.

[17] An order 16 to that effect will be published separately to this decision.

COMMISSIONER

Appearances:

Mr David Airoldi, Applicant.

Mr Dong Ma, Respondent.

Hearing details:

2016

Melbourne

29 September.

 1   Applicant’s Outline of Submissions, p.1.

 2   Ibid.

 3   Ibid.

 4   Ibid.

 5   Form F2 – Unfair Dismissal Application, p.4.

 6   Ibid; PN60 & 114.

 7   Ibid.

 8   Respondent’s Outline of Submissions, 12 September 2016, p.4; attachment DKMY 3.

 9   Ibid, p.3.

 10   Ibid, p.3-5.

 11   Ibid, p.5.

 12   PN58 & 67-69.

 13   PN63-71.

 14   PN246.

 15 (2010) 204 IR 389.

 16   PR587831

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