Erika Ficker v Blacktown Women's and Girls' Health Centre Inc

[2013] FWC 734

[2013] FWC 734

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Erika Ficker
v
Blacktown Women's and Girls' Health Centre Inc.
(U2012/10168)

DEPUTY PRESIDENT SAMS SYDNEY, 6 FEBRUARY 2013

Application for unfair dismissal remedy - objection to jurisdiction - small business employer - minimum employment period - uncontested evidence - application dismissed for want of jurisdiction.

[1] Further to my decision in this matter given in transcript on 1 February 2013, I now publish my reasons as follows.

[2] This is an application, filed under s 394 of the Fair Work Act 2009 (the ‘Act’) by Ms Erika Ficker (the ‘applicant’), seeking a remedy from unfair dismissal arising from her termination of employment as a trainee receptionist employed by the Blacktown Women’s and Girls’ Health Centre Inc (the ‘respondent’) on 24 October 2012. The reasons for the applicant’s dismissal are not relevant for the purposes of this decision; suffice to observe that her letter of termination refers to performance issues as the grounds for her dismissal.

[3] The respondent has objected to the application on the basis that it is a small business employer, as defined by s 23 of the Act, and as the applicant had not completed the required minimum employment period for the purposes of s 383 of the Act, the Fair Work Commission (the ‘Commission’) has no jurisdiction to determine the applicant’s unfair dismissal claim.

[4] The matter was listed for hearing on 1 February 2013. Mr K Godfrey, Agent, Jobs Australia, appeared for the respondent and the applicant appeared unrepresented, but with the support of her mother. The applicant and the respondent’s Manager, Ms Sheree James, provided written statements and gave oral evidence in the proceedings.

Statutory provisions

[5] s 396 of the Act requires the Commission to determine a number of jurisdictional matters before considering the merits of an unfair dismissal application. The section is expressed as follows:

396 Initial matters to be considered before merits

FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

[6] Subsection (b) requires the Commission to make a finding that the person was protected from unfair dismissal. This expression is defined at s 382 as follow:

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.

[7] Subsection (a) is the relevant consideration here and the definition of minimum employment period is found in the next section (s 383):

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] As earlier mentioned, the definition of a small business is statutorily defined by s 23 of the Act 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.

CONSIDERATION

[9] There is no dispute - and the applicant acknowledged as much - that her period of employment was from 14 November 2011 to 25 October 2012 - 20 days shy of 12 months employment. Thus, the only issue for determination by the Commission is whether the respondent was a small business employer, as defined.

[10] The respondent, through Ms Jones, provided direct evidence and payroll records plainly disclosing that the respondent had 9 employees at the time of the applicant’s dismissal. In Ms Ficker’s statement, she said that she believed that the respondent had more than 9 employees at the relevant time.

[11] In oral evidence, Ms Jones explained that various other people were either contracted to the respondent (such as the Zumba instructor), or were employees of other organisations which merely utilised the premises of the respondent for conducting their own business, such as the Women’s Legal Resource Centre, Family Planning, Norwest Legal Resource Centre and Sexual Assault Services.

[12] In cross-examination, the applicant said that she believed that these other persons were why she originally held the belief the respondent had more than 9 other employees. When asked: ‘Do you still believe that there are more employees than on the payroll list you were given?’ she replied ‘No, I don’t’. In the result, the respondent’s evidence is uncontested and incontrovertible.

[13] Accordingly, in light of the uncontested evidence of Ms James and the applicant’s acceptance of her evidence, I am well satisfied that the respondent was a small business employer having less than 15 employees at the relevant time, and the applicant was employed for a period of less than 12 months. It follows that the applicant’s claim of unfair dismissal cannot proceed and must be dismissed for want of jurisdiction. In so finding, I imply no criticism of the applicant, as I accept that she held a genuine belief, at the time of preparing her statement, that the respondent had more than 15 employees.

[14] The application is dismissed and an order to that effect will be issued contemporaneously with this decision, confirming my decision of 1 February 2013.

DEPUTY PRESIDENT

Appearances:

Mr K Godfrey, Agent for the Respondent

Hearing details:

2013.

Sydney:

1 February

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