Horng Yang Chan v Boogie House Hotpot Pty Ltd
[2024] FWC 1181
•24 JULY 2024
| [2024] FWC 1181 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Horng Yang Chan
v
Boogie House Hotpot Pty Ltd
(U2024/1984)
| DEPUTY PRESIDENT BELL | MELBOURNE, 24 JULY 2024 |
Application for an unfair dismissal remedy - jurisdiction objection – whether small business - minimum employment period - jurisdiction objection upheld - application dismissed.
On 23 February 2024, Mr Horng Yang Chan made an application (the Application) to the Fair Work Commission (Commission) for relief from unfair dismissal under s 394 of the Fair Work Act 2009 (the Act).
Mr Chan says he was unfairly dismissed by the respondent employer, Mr Shiwei Ding on 12 February 2024. The parties agreed that the correct name of the employer was Boogie House Hotpot Pty Ltd, and I amended the name of the respondent accordingly. The employer says the Applicant was dismissed on 13 February 2024 and denies the dismissal was unfair. Nothing turns on the differences in the date of dismissal.
Mr Chan’s ‘Form F2’ application states that he started work with the employer on 2 June 2023. The employer’s ‘Form F3’ response gives the same start date. This issue was not otherwise in dispute and I am satisfied that Mr Chan was employed for a period slightly over 7 months in total before he was dismissed.
Mr Chan’s Form F2 application also states that the estimated business size of the employer was ‘1-14’. The employer’s Form F3 response states that the employer had 7 employees at the time of the dismissal.
The issue
A person cannot obtain a remedy for unfair dismissal unless they were ‘protected from unfair dismissal’ at the time they were dismissed: ss 382 and 390(1). An employee is not ‘protected from unfair dismissal’ unless, at the time they were dismissed, they had completed a period of employment with his or her employer of at least the ‘minimum employment period’: s 382(a).
For a ‘small business employer’, the minimum period is 12 months. A ‘small business employer’ is an employer that has, at a particular time (in this case, the date of dismissal), fewer than 15 employees.
In this case, it was not in dispute that Mr Chan was employed for more than 6 months but less than 12 months. The issue in dispute was whether the employer was a small business employer, i.e., had fewer than 15 employees at the time Mr Chan was dismissed.
The ‘minimum employment period’ is defined in s 383 of the Act as follows (emphasis added):
“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.”
A ‘small business employer’ is defined in s 23 of the Act as follows:
“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.”
Procedural matters
On 3 April 2024, I issued directions for the filing of evidence and submissions by the parties on the question of whether Mr Chan had completed the minimum employment period, as well as listing the matter to be heard on 8 May 2024. The directions initially required the respondent to file its material by 17 April 2024 and Mr Chan to file his material by 1 May 2024.
I also held a mention hearing on 12 April 2024, which was conducted with the assistance of an interpreter. The issue of the ‘minimum employment period’ and, critically, whether the employer had 15 or more employees at the time of Mr Chan’s dismissal was discussed.
Each party filed material in response to the directions, albeit the material was brief.
Factual findings
The employer, whose material was due first, simply filed an email from Mr Ding listing the names and positions of the people he employs. There were five people on that list. There was no explanation provided as to why that number was different to the seven staff described in the Form F3.
Mr Chan’s evidence was similarly brief, being a short email as well, although I acknowledge that both Mr Ding and Mr Chan do not speak English as their first language.
The email Mr Chan provided to the Commission stated (emphasis added):
“I have a material proof Mr. Ding have not tell the truth. Mr. Ding he has 14 employees included me. Here is few pictures I snap from media working communication group. 5 employees not in this communication group. Most of the employees which they are part time. All of them were still working before I was fired.
Meanwhile, all his employees he never helped any of us file taxes. Also I have been on the tax roll for 8 months. It is very unfair to us workers under this situation.
We got nothing during the tax refund period.
Although I didn't work for 12 months, 8 months is not short. If it's a small business with less than 15 employees, it's really unfair to me that I was unfairly fired. And when I started working in these restaurants on 2nd June 2023, two people were fired in similar situations. One of them was even beaten by the supervisor. He didn't fight back and was fired in the same situation as me. I also had an argument with my supervisor and was fired. These people who were fired also worked for less than 12 months. If this is the case, can he always fire people unfairly just because they haven't worked for 12 months and are small companies with less than 15 employees? Is this fair to us workers?
He didn't want to deal with me properly in this matter. He even sent me messages insulting and scolding me. I will provide the photos and messages of him insulting and scolding me.”
In addition to the above email, Mr Chan provided screenshots of a messaging group, which he has annotated to identify the 14 employees he referred to. He confirmed that list at the determinative conference.
In the directions I issued, I had requested the employer to provide payroll statements and reports or rosters, and details of associated entities (if any). No such documents were provided, although Mr Ding’s (unsatisfactory) explanation at the determinative conference was that his accountant was on holiday when the material was due.
At the determinative conference before me, the two witnesses disagreed with each other about the number of employees. Mr Chan says that, when he was dismissed, there were 14 employees working (being the ones he identified in the annotated ‘chat’ attachment with his email evidence). Mr Ding said in response that a number of people on that list were not working at the time of Mr Chan’s dismissal. Mr Ding also gave evidence that his business was a small shop and the nearby university was on holiday, so that even fewer people were needed in February 2024. I am unable to make an exact finding of what employees should or should not be counted and I note it is likely to involve the details of casuals and whether each of those casuals would be a ‘regular casual employee’ for the purposes of s 23(2)(b) of the Act.
Notwithstanding the limited evidence provided by the parties, I find that the employer had, at the time of Mr Chan’s dismissal, fewer than 15 employees. What the exact number was remains unclear, although there was simply no material basis for me to conclude that there were 15 or more staff at any relevant time, even if I assumed in Mr Chan’s favour that his list should be completely accepted. That position was consistent with the Form F2 and Form F3, and the evidence by the parties. There was no suggestion of any associated entity employing any relevant person.
Conclusion
As the employer had, at the time of Mr Chan’s dismissal, fewer than 15 employees, the employer is a ‘small business employer’. Accordingly, for Mr Chan’s unfair dismissal application to proceed, he would have to have been employed for 12 months or more.
As Mr Chan was only employed for a period of slightly longer than 7 months, Mr Chan was not ‘protected from unfair dismissal’ and his application must be dismissed.
Mr Chan’s application is therefore dismissed. An Order[1] giving effect to these reasons will be issued separately.
DEPUTY PRESIDENT
Appearances:
H. Chan on his own behalf
S. Ding from the Respondent
Determinative conference details:
2024.
Melbourne (by video link via Microsoft Teams):
May 8.
[1] PR774590.
Printed by authority of the Commonwealth Government Printer
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