Jamie Battersby v BRM Bulk Resources Management Pty Ltd

[2020] FWC 1163

[2020] FWC 1163

FAIR WORK COMMISSION

DECISION

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

Jamie Battersby
v
BRM Bulk Resources Management Pty Ltd
(U2019/12896)

COMMISSIONER CAMBRIDGE SYDNEY, 5 MARCH 2020

Unfair dismissal - jurisdictional objection - s. 382 (a) - whether applicant had completed minimum employment period - whether employer was a small business - application dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 19 November 2019. The application was made by Jamie Battersby (the applicant), and the respondent employer has been identified to be BRM Bulk Resources Management Pty Ltd (the employer).

[2] The application identified that the applicant was represented by SCB Legal (SCB). The application also stated that the applicant began working for the employer on “03/12/2018” and the date of the applicant’s dismissal was 13 November 2019. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act. Further, the application indicated that the applicant had been employed for more than 6 months but less than 12 months.

[3] The employer provided an employer's response to the application for unfair dismissal remedy which confirmed that the applicant had been employed for between 6 and 12 months. Further, the employer’s response raised jurisdictional objections on the basis that: 1; the applicant was not dismissed, (the no dismissal objection), and 2; the applicant’s employment did not meet the minimum employment period, (the minimum employment period objection), and 3; the employer is a small business and the dismissal of the applicant was consistent with the Small Business Fair Dismissal Code (the small business objection). Curiously, the employer’s response at paragraph 1.7, stated that the employer had 15 employees at the time the applicant was dismissed.

[4] Following unsuccessful conciliation of the claim, Catanzariti VP of the Fair Work Commission (the Commission) sent a letter to the applicant and SCB which inter alia, required the applicant to provide a statement together with documents or evidence to support his claim that he had served the minimum employment period. The correspondence from Catanzariti VP did not require the applicant to address either the no dismissal objection or the small business objection.

[5] On 3 January 2020, SCB sent a response to Catanzariti VP which provided 16 first names of people who were asserted to be employees of the employer at the time that the applicant was dismissed. The correspondence from SCB relevantly stated, “…the Commission can be satisfied that there were 15 employees at the time Mr Battersby was terminated. Therefore, the requisite length of time for employment is 6 months, not 12 months.”

[6] On 6 January 2020, the employer provided an email to the Commission which challenged the list of names of employees contained in the correspondence of 3 January 2020 from SCB, as being inaccurate, and included names that “…are made up and have never been on our payroll.” Subsequently, I have been allocated the matter to determine the contested issue as to whether the applicant had completed the minimum employment period.

[7] The matter was listed for Pre-Hearing Conference/Conciliation on 9 January 2020. At the proceedings held on 9 January, the Parties confirmed that the minimum employment period objection would require determination to be made of the number of employees of the employer at the time of the dismissal of the applicant which for the purposes of the unfair dismissal claim, was 13 November 2019. Directions were made for the employer to provide evidence and submissions to support its minimum employment period objection, and upon which it would rely as basis to establish that it was a small business employer. The applicant was Directed to provide any evidence and submissions in opposition to the employer’s assertion that it was a small business employer at the time of the dismissal of the applicant.

[8] Subsequently, the Parties have provided documentary material in support of their respective positions on the minimum employment period objection. The documentary material provided by the Parties has included respective affidavits that have represented evidence of the contest as to the number of employees of the employer at the time of the dismissal of the applicant, and upon which it was agreed that the Commission could determine the minimum employment period objection without the requirement for any Hearing.

[9] Accordingly, this Decision has been confined to the determination of the employer’s minimum employment period objection, and it has been made upon examination and consideration of the documentary material that has been filed by the Parties.

The Employer’s Case

[10] Coutts Solicitors & Conveyancers (Coutts) provided written submissions on behalf of the employer which referred to and relied upon an affidavit of Melissa Romel sworn on 24 January 2020. In summary, the submissions made on behalf of the employer asserted that as at 13 November 2019, the employer employed 14 personnel including full-time, part-time and casual employees who were employed on a regular basis. Consequently, according to the employer’s submissions, the employer was a small business employer pursuant to the Act.

[11] The employer’s submissions also referred to the engagement of a casual employee identified to be Trevor Mitchell (Mitchell). It was asserted that Mr Mitchell was engaged as a casual employee on 11 November 2019 and he was not employed on a regular basis. The submissions made on behalf of the employer acknowledged that Mr Mitchell did work for four weeks but that his engagement was “… on a needs only basis with no regular contract hours of work”.

[12] Coutts made further submissions which referred to s. 383 of the Act and contended that as the employer had provided evidence upon which to establish that it was a small business employer, the applicant did not meet the relevant minimum employment period of 12 months. The employer’s submissions stated inter alia, that “Small Business employees cannot make a claim for unfair dismissal in the first 12 months following their engagement.”

[13] The submissions made on behalf of the employer further stated that the application was “not available and the matter should be dismissed with costs.”

The Applicant’s Case

[14] SCB made submissions on behalf of the applicant which relied upon material provided in the correspondence to Catanzariti VP on 3 January 2020. SCB also provided an affidavit of the applicant that was sworn on 14 February 2020, in which it was asserted inter alia, that the 16 first names set out in “Annex “A”” including the applicant, were employees of the employer at the time of the applicant’s termination on 13 November 2019.

[15] Further submissions made by SCB referred to the engagement of Mr Mitchell, (aka Trevor), and it was noted that “Trevor who was employed on a need’s basis however, continued to work to work [sic] on an ongoing basis from 11 November 2019. Given the separation certificate states the Applicant’s date of termination as 28 November 2019, those employed up until this date must be taken into account and therefore on the Respondent’s own admissions, Trevor was employed on an ongoing basis from 11 November 2019 (4 weeks straight).” SCB submitted that the Commission can be satisfied that there were 15 employees at the time the Applicant was terminated.

Consideration

[16] The minimum employment period objection taken by the employer in this instance has required determination of the issue of whether the applicant is a person protected from unfair dismissal. This issue arises from subsection 382 (a) of the Act.

[17] Section 382 of the Act is in the following terms:

“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.”

[18] Section 383 of the Act provides a meaning of minimum employment period and is in the following terms:

“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.”

[19] In this case there was no dispute that the applicant's period of employment was more than 6 months but less than 12 months. Therefore, the determination of the minimum employment period objection was confined to a determination as to whether the employer was a small business employer at the time that the applicant asserted that he was unfairly dismissed, 13 November 2019.

[20] Section 23 of the Act provides a meaning of small business employer and is in the following terms:

“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.”

[21] The evidence that was provided by the employer in the form of the affidavit of Melissa Romel (Romel) sworn on 24 January 2020, has represented the most accurate presentation of the number of employees of the employer as at 13 November 2019. Interestingly however, the Romel affidavit is somewhat oxymoronic as it contains an important contradiction.

[22] Ms Romel is the employer’s Account Manager and at paragraph 4 of her affidavit she stated: “As at 13 November 2019, the total number of people who were employed by BRM was 14 as set out below:…” The Romel affidavit then set out in table form the full name, start date and employment basis of 14 individuals. Paragraph 5 of the affidavit of Ms Romel then stated: “Mr Trevor Mitchell commenced employment on 11 November 2019 as a casual. He was on a needs only basis. Trevor was casually brought in to assist for one week from 11 November 2019 to 15 November 2019 as the yard was busy but as Mr Battersby did not return to work Trevor worked for 4 weeks.”

[23] Consequently, paragraph 5 of the Romel affidavit contradicts paragraph 4 because Mr Mitchell’s name does not appear as one of the 14 individuals named in the table within paragraph 4, yet on 13 November 2019, Mr Mitchell was clearly an employee albeit a recently engaged casual. Therefore, there were 15 employees of the employer on 13 November 2019, and this number accords with the answer provided in paragraph 1.7 of the employer’s response to the unfair dismissal application.

[24] On the evidence that has been provided by the Parties, the Commission is satisfied to make a finding that as at the date of the applicant’s alleged unfair dismissal, 13 November 2019, the employer had 15 employees. However, one of those 15 employees was Mr Mitchell, who was engaged as a casual employee and he had commenced employment only two days earlier. Mr Mitchell’s employment circumstances have become vital to the determination of whether the employer was a small business employer at the time of the applicant’s alleged unfair dismissal.

[25] Importantly, subsection (2) (b) of section 23 of the Act operates in respect to the employment circumstances of Mr Mitchell in this instance wherein it states; “(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.”

[26] By application of the well-established principles for determination of whether employment was regular and systematic, as can be found in the recent Full Bench Decision in Chandler v Bed Bath N’ Table  1, the employment of Mr Mitchell as a casual working his third engagement, could not provide for a finding that he had been employed by the employer on a regular and systematic basis. Therefore, by virtue of the operation of subsection 23 (2) (b) of the Act, Mr Mitchell cannot be counted as an employee for the purposes of establishing whether the employer was or was not a small business employer at the time of the applicant’s alleged unfair dismissal.

[27] Consequently, for the purposes of s. 23 of the Act, at the time of the alleged unfair dismissal of the applicant, 13 November 2019, the employer employed fewer than 15 employees because Mr Mitchell was a casual employee who had not been employed by the employer on a regular and systematic basis at that time, and he therefore cannot be counted for the purposes of determining whether the employer satisfied the meaning of a small business employer. Therefore, the employer was a small business employer at the time of the applicant’s alleged unfair dismissal, and as the applicant had not completed the relevant minimum employment period of one year, he was not a person protected from unfair dismissal. The minimum employment period objection raised by the employer must be upheld, and the application for unfair dismissal remedy must be dismissed.

[28] An Order dismissing the application in accordance with this Decision shall be issued separately.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR717206>

 1   Angele Chandler v Bed Bath N’ Table Pty Ltd [2020] FWCFB 306.