Jacqueline Watson v Night Til Light Productions T/A Wedding Bells South Coast

[2017] FWC 2921

[2017] FWC 2921

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jacqueline Watson
v
Night Til Light Productions T/A Wedding Bells South Coast
(U2017/27)

DEPUTY PRESIDENT DEAN SYDNEY, 2 JUNE 2017

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

[1] On 3 January 2017 Ms Jacqueline Watson (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 Night Til Light Productions T/A Wedding Bells South Coast(the Respondent).

[2] The Respondent raised a jurisdictional objection to the application on the grounds that it is a small business employer and the Applicant had not completed a minimum employment period.

[3] 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 ...”

[4] 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.”

[5] 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.”

[6] In this decision I am required to determine whether the Respondent is a small business employer at the time of the Applicant’s dismissal.

[7] The application was listed for hearing by telephone on 26 May 2017.

[8] At the hearing, Ms Watson appeared on her own behalf. The Respondent sought permission to be represented by Ms J Hold, solicitor. Permission was refused on the basis that I was not satisfied that the requirements of s.596(2) of the Act were met. Ms M Chorlton-Collier, owner and director, then appeared on behalf of the Respondent.

[9] For the reasons set out below, I find that the Respondent is a small business employer. It follows that the Applicant had not completed the required employment period of twelve months and is therefore not a person protected from unfair dismissal.

The evidence and submissions

[10] There was no dispute between the parties that the Applicant worked for the Respondent for a period of less than one year.

[11] The Respondent submits it did not terminate the Applicant and that on 16 December 2016 (the relevant date) it employed fewer than 15 employees, and was therefore a ‘small business employer’ within the meaning of s.23 of the Act.

[12] In its form F3 (Employer Response) filed on 27 February 2017, the Respondent asserted that it had two employees at the time of the conclusion of the Applicant’s engagement with the Respondent.

[13] The Applicant contended that the Respondent had more than two employees, and the Commission should not allow the employer to ‘get away with lying’. The Applicant via email on 23 May 2017 provided a list of persons who, she asserted, have been working within the Respondent’s business. This list provided some nine names including Ms Chorlton-Collier and her husband.

[14] Ms Chorlton-Collier was questioned during the hearing as to the employment status of the persons named by the Applicant. Her evidence, which I accept, was that some of those persons (such as Ms Chorlton-Collier’s husband) were not and had never been an employee of the Respondent, that some had been engaged on a casual or part-time basis but not at time the Applicant ceased work, and that two of the persons named on the list had been casual or part-time employees at or around the time the Applicant ceased work for the Respondent.

Conclusion

[15] Based on the evidence and submissions made in this matter, I am satisfied and find that the Respondent was a small business employer. Accordingly, I find that the Applicant had not completed the minimum employment period and is not a person protected from unfair dismissal. Accordingly, I uphold the Respondent’s jurisdictional objection and dismiss the application. An order to that effect will be issued separately.

DEPUTY PRESIDENT

Appearances:

J Watson, on her own behalf.

M Chorlton-Collier, for the Respondent.

Hearing details:

2017.

Sydney (by telephone):

May 26.

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