Donna Rowlands v Raine and Horne Woodford

[2018] FWC 6771

[2018] FWC 6771

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Donna Rowlands
v
Raine and Horne Woodford
(U2018/7919)

DEPUTY PRESIDENT DEAN SYDNEY, 1 NOVEMBER 2018

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

[1] Ms Rowlands (the Applicant) made an application to the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy in respect of her dismissal by Raine and Horne Woodford(the Respondent).

[2] The Respondent objected to the application on the grounds that the application had been made outside the statutory timeframe of 21 days and that the Applicant was not dismissed.

[3] The application was listed for hearing on 31 October 2018. Ms Burrell, who is legally qualified, spoke on behalf of the Applicant as her support person and unpaid agent. Ms Garth appeared for the Respondent.

[4] At the commencement of the hearing I asked the parties to confirm the dates the Applicant’s employment commenced and ended. It was not contested that the employment commenced on 3 July 2017, and ended on 25 June 2018. Given the Respondent had indicated it had five employees at the date the Applicant’s employment ended, I raised with the parties a question as to whether the minimum employment period had been met.

[5] 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 ...”

[6] 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.”

[7] 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.”

[8] Ms Garth gave unchallenged evidence that the Applicant commenced employment on 3 July 2017 and her employment ended on 25 June 2018, when she received a written resignation from the Applicant by email. She also gave unchallenged evidence that the Respondent had five employees at the time of the Applicant’s resignation.

[9] Based on the evidence and submissions made in this matter, I am satisfied and find that the Applicant has not completed the minimum employment period and is not a person protected from unfair dismissal.

[10] Given this finding, it is unnecessary therefore to determine the other jurisdictional objections to the application.

[11] Accordingly, I must dismiss the application. An order to that effect will be issued separately.

DEPUTY PRESIDENT

Appearances:

D Burrell for Donna Rowlands.

J Garth for Raine and Horne Woodford.

Hearing details:

2018.

Brisbane:

October 31.

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