Emma Vincent v Kelmscott Physiotherapy

[2012] FWA 7714

[2012] FWA 7714

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Emma Vincent
v
Kelmscott Physiotherapy
(U2012/11002)

COMMISSIONER WILLIAMS PERTH, 7 SEPTEMBER 2012

Termination of employment - minimum employment period.

[1] This matter involves an application made by Ms Emma Vincent (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Kelmscott Physiotherapy (the Respondent).

[2] The Respondent objects to the application on the grounds that it asserts that the Applicant has not completed the minimum employment period required.

[3] Both parties were invited to provide written submissions on this issue. I have received submissions from both parties and have considered these. My decision on the matter is set out below.

The legislation

[4] Section 382 of the Act says that a person is only protected from unfair dismissal if they have completed at least the minimum employment period.

[5] Section 383 says that the minimum employment period for a small business employer is one year but for an employer that is not a small business employer the minimum employment period is six months.

[6] Section 23 says that an employer is a small business employer at a particular time if it employs fewer than 15 employees.

[7] These provisions of the Act are set out below:

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.

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.

Note: High income threshold indexed to $123,300 from 1 July 2012.

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.

Consideration of the issues

[8] The Applicant and the Respondent have provided details of the numbers and types of employees they assert were employed by the Respondent at the time the Applicant was dismissed.

[9] The Applicant’s headcount including herself is that there were a total of 13 persons employed.

[10] The Respondent’s headcount, accepting at face value its categorisation of some persons, was a total of 12 persons employed. Even if the Respondent’s categorisation of some of the persons as being directors or not employed at the relevant time was incorrect then at most there were 14 persons employed at the time of the Applicant’s dismissal.

[11] Considering this information then I am satisfied that at the time of the Applicant’s dismissal the Respondent employed fewer than 15 employees. That being the case at the time of the Applicant’s dismissal the Respondent fell within the definition of a small business.

[12] Because the Respondent was a small business, for the Applicant to be protected from unfair dismissal and so entitled to make this application she must have completed a period of employment of at least one year.

[13] The parties have provided a copy of documentation that was sent to the Applicant prior to her employment commencing.

[14] A letter headed “Individual Agreement (Support Services Staff)” was provided to the Tribunal which was addressed to the Applicant at her home address and under that address is dated Sunday, July 3, 2011.

[15] The third paragraph of the letter says:

“This agreement, together with any attachments, sets out the terms and conditions of your employment. Please indicate your acceptance of the terms and conditions outlined in this letter of offer by signing the last page.”

[16] The document sets out some 25 clauses of the agreement.

[17] Clause 2−Employment states:

“a. You will commence on 06/07/11”

[18] Clause 25−Agreement Signature states:

“I have read and understood the terms and conditions of this Agreement and the attached Schedule A and accept them fully”

[19] The Applicant has signed immediately below this on 6 July 2011 and her signature was witnessed by Mr Butcher, a Director of the Respondent.

[20] Schedule A of the agreement states at point 3:

“3. Date of Agreement: 27/06/11”

[21] Having considered this documentation my conclusion is that it is a letter of offer of employment made on 3 July 2011 by the Respondent to the Applicant and that the Applicant accepted this offer of employment on 6 July 2011.

[22] Consequently, the Applicant was not employed prior to accepting this offer which she did on 6 July 2011. This of course is consistent with Clause 2−Employment which says that her employment commenced on this date. The fact that Schedule A says the “Date of Agreement” was an earlier date being 27 June 2011 does not overcome the fact that the offer of employment was not made before 3 July 2011 and was not accepted before 6 July 2011. It is fundamental that employment cannot be said to have commenced before a person has accepted an employer’s offer of employment let alone before the offer was made.

[23] I find that the Applicant’s employment with the Respondent commenced on 6 July 2011.

[24] There is no dispute between the parties that the Applicant was notified of her dismissal on 28 June 2012 and the dismissal took effect on the same day.

[25] Consequently I find that the Applicant has not completed a period of employment with the Respondent of at least one year. Therefore the Applicant has not completed the required minimum employment period and so at the time of dismissal she was not protected from unfair dismissal and is not entitled to make this application.

[26] According this application must now be dismissed and an order to that effect will be issued in conjunction with this decision.

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