Ho Yin Wong v Lins United Pty Ltd
[2025] FWC 199
•22 JANUARY 2025
| [2025] FWC 199 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ho Yin Wong
v
Lins United Pty Ltd
(U2024/13134)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 22 JANUARY 2025 |
Application for an unfair dismissal remedy – jurisdictional objection – whether small business employer - whether minimum employment period met – employer found to be a small business employer - minimum employment period of twelve months not met – jurisdictional objection upheld – application dismissed.
Introduction
On 2 November 2024, Mr Ho Yin Wong (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 Cth (the Act) in which he asserts that the termination of his employment with Lins United Pty Ltd (the Respondent) on 31 October 2024 was unfair. The Applicant seeks an order for compensation.
On 20 November 2024, the Respondent filed its Form F3 response to the unfair dismissal application in which it raised a jurisdictional objection to the application, that the employer is a small business employer and the employer complied with the Small Business Fair Dismissal Code (the Code). It also became apparent on reviewing the application that the Applicant may not have met the minimum employment period if it were established that the Respondent was a small business employer within the meaning of s 23 of the Act.
Following unsuccessful conciliation conducted by a staff member of the Fair Work Commission (the Commission) on 16 December 2024, the matter was allocated to my Chambers. It was then listed for a conference/hearing on 14 January 2025 to deal with the Respondent’s jurisdictional objection that the dismissal was consistent with the Code. The Respondent filed limited material in advance of the conference/hearing while the Applicant failed to file any material. The proceeding was conducted as a determinative conference.
At the conference on 14 January 2025, the Applicant appeared and gave evidence while Songlin Qu, who is the owner of the Respondent, appeared for and gave evidence on behalf of the Respondent. The Applicant was assisted at the conference by an interpreter arranged by the Commission. At the commencement of the conference on 14 January 2025, I explained to the parties that there was a preliminary point associated with the Respondent’s jurisdictional objection that needed to be determined. That is, whether the Respondent was in fact a small business employer within the meaning of s 23 of the Act and if so, whether the Applicant had met the minimum employment period of twelve months service.
Background and evidence
In response to an order to produce documents issued by the Commission on 8 January 2025, the Respondent provided a copy of the Employment Contract entered into between the Respondent and Applicant. The Employment Contract, while signed by both parties on 18 December 2023, did not specify a commencement date other than to state the Applicant was to commence as a Chef at the Respondent’s Warrandyte restaurant ‘Within one (1) month after the visa approval date’. The date on which the Applicant obtained approval for his visa was not established. In any case, the Applicant agreed during the conference that he commenced employment with the Respondent on 3 April 2024, meaning that he was employed by the Respondent for a period of approximately seven months.
Pursuant to the above-referred document production order issued by the Commission, the Respondent also produced a payroll summary for the week ending 3 November 2024 containing a list of employees employed at the time of the Applicant’s dismissal. The payroll summary produced by the Respondent listed eleven employees which Mr Qu confirmed in his oral evidence was accurate. Mr Qu’s evidence may be summarised as follows;
· at the time of the Applicant’s dismissal the Respondent employed 11 employees;
· the Applicant was employed for less than twelve months; and
· at the time of the Applicant’s dismissal there were no associated entities (as defined by s 50AAA of the Corporations Act 2001 (Cth)).
The Applicant challenged the claimed dismissal date and contended that it actually took effect on 3 November 2024 rather than 31 October 2024. He also challenged the Respondent’s evidence on whether it was a small business employer, both in terms of the number of employees and whether there were any associated entities that employed staff. On the latter point, Mr Qu conceded that a director of the Respondent, Mr Yu Lin owned another business, but it did not employ any persons. The Applicant also claimed there were several other employees including an ‘Alice’. Mr Qu acknowledged there had been an employee called ‘Alex’ but they had resigned their employment.
Having regard to the Applicant’s contention that there were several additional employees not identified in the Respondent’s list and his challenge to the Respondent’s evidence on associated entities, I adjourned the proceedings and provided the Applicant with additional time to provide submissions and evidence on the minimum employment period issue. In issuing directions, specific attention of the parties was drawn to resolving the matter of the number of employees and whether there were any associated entities that employed staff.
The Applicant subsequently filed material that unhelpfully, for the purpose of resolving minimum employment period issue, largely went to the merit of his application. The material did not address the question of associated entities but did include six names which he claimed were employees of the Respondent. The list did not include full names, their occupation, when they were employed or the nature of their engagement, be that full-time, part-time or casual. He did however claim that some of these employees were paid in cash. The Respondent in reply advised that they were unable to identify who the Applicant was referring to in his list of names given full names had not been provided, rejected that any staff were paid in cash and maintained that the number of employees employed at the time of the Applicant’s dismissal was eleven as previously stated in Mr Qu’s evidence.
Has the Applicant been dismissed?
A threshold issue to determine is whether the Applicant has been dismissed from his employment. Section 386(1) of the Act provides that the Applicant has been dismissed if:
(a)the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b)the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. There was no dispute, and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.
Statutory Provisions
Before considering the merits of the Applicant’s unfair dismissal application, the Commission is also required by s 396 of the Act to decide certain matters. Section 396 provides as follows:
“396 Initial matters to be considered before merits
The FWC 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.”
I am satisfied that the application was filed within the 21-day statutory timeframe specified in s 394(2) of the Act. Therefore, the next issue that must be determined is whether the Applicant is a person protected from unfair dismissal (s 396(b) of the Act). The question to be answered in respect of s 396(b) is that found at s 382(a) of the Act which relevantly states 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
…”
The minimum employment period is one year for a small business employer and six months for other employers, as provided by s 383 of the Act which states 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.”
Section 23 of the Act relevantly defines a small business 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, 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.”
Consideration
I am satisfied that the Applicant commenced employment with the Respondent on 4 April 2024 and was dismissed on or about 31 October 2024. While the Applicant disputed that dismissal date and claimed it (his dismissal) took effect on 3 November 2024, nothing turns on resolving that dispute for the purpose of dealing with the threshold issue of whether the Applicant met the minimum employment period. That is because, either date produces a length of service in excess of six months but less than twelve months. I am consequently satisfied that the Applicant’s period of service was approximately seven months.
I am also satisfied, and it was not seriously contested, that there were no associated entities of the Respondent within the meaning of s 50AAA of the Corporations Act 2001 (Cth) that employed staff. Therefore, it will only be those employees engaged by the Respondent that are relevant for the purpose of calculating the number of employees.
Turning to the number of employees employed by the Respondent, the Payroll Summary identified eleven employees. The Applicant provided six additional names although he failed to provide sufficient information that would enable me to safely conclude those persons were employed at the date of his dismissal. In any case the Respondent maintained its evidence produced in response to an order of the Commission that there were eleven employees at the time of the Applicant dismissal. I prefer the Respondent’s evidence which leads me to conclude that at the time of the Applicant’s dismissal, the Respondent employed eleven staff.
It follows from the above and I am satisfied that, at the time of the Applicant’s dismissal there were eleven employees of the Respondent. I am therefore satisfied that the Respondent employed less than fifteen employees at the time of the Applicant’s dismissal. Consequently, I am satisfied that the Respondent was a small business employer at the time of the Applicant’s termination of employment.
Conclusion
Having found that the Respondent was a small business employer at the time of the Applicant’s dismissal, the Applicant has not completed the minimum employment period of 12 months with the Respondent at the time of his dismissal (s 382(a) of the Act). In these circumstances the Applicant has failed to serve the minimum employment period. The Applicant’s unfair dismissal application must therefore be dismissed. An Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Ho Yin Wong, Applicant.
Songlin Qu for the Respondent.
Hearing details:
2025.
Melbourne:
January 14.
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