Jaschke v Johnsen Quality Bakeries Pty Ltd

[2016] FWC 1120

[2016] FWC 1120

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Stefanie Jaschke
v
Johnsen Quality Bakeries Pty Ltd T/A Australind Bakery
(U2015/14845)
COMMISSIONER BISSETT	MELBOURNE, 24 FEBRUARY 2016

Application for relief from unfair dismissal – small business – not employed for at least 12

months – application dismissed

[1]        Ms Stefanie Jaschke was employed by Johnsen Quality Bakeries Pty Ltd T/A

Australind Bakery (Australind). She commenced employment on 25 March 2015 and her

employment was terminated on Friday 6 November 2015. Ms Jaschke was, therefore,

employed for just over 7 months.

[2]        Ms Jaschke has made an application to the Fair Work Commission (the Commission)

seeking relief from unfair dismissal.

[3]        Australind says the Commission does not have jurisdiction to deal with the application

as it is a small business and had 14 employees (including Ms Jaschke) at the time her

employment was terminated. This objection was dealt with by hearing on 17 February 2015.

Legislation

[4]        The Fair Work Act 2009 (the Act) states:

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;

[2016] FWC 1120

(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.

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]        Given the provisions of the Act the Commission does not have power to hear Ms

Jaschke’s application if Australind is a small business as Ms Jaschke was employed for a

period of less than 12 months.

Submissions and evidence

[6]        The parties do not disagree on the names of the 14 employees Australind says it had at

the time Ms Jaschke’s employment was terminated.

[7]        However, Ms Jaschke said that there was one more employee at the time her

employment was terminated named Shane Rickwood.

[8]        Ms Jaschke worked an evening/nightshift at Australind. On Thursday 5 November

2015, the day before her employment was terminated, Ms Jaschke commenced work at

9.00pm. She says that Mr Rickman was at work when she started but at about 11.00pm he

walked out and never returned. She says that at first she thought he had gone out for a

cigarette break but he did not return.

[9]        Ms Jaschke attended work the following evening on Friday 6 November 2015. Mr

Rickman was not at work, she does not know where he was. Her employment was terminated

that evening.

[10]      Mr Johnsen, the owner the company, says that Mr Rickman had commenced work on

about 24 October 2015 (which accords with the evidence given by Mr Chad Miller). He

worked the full first week. The second week he worked on Sunday and Monday, 1 and

2 November 2015. He came to work on Tuesday 3 November 2015 but walked out at about

11.00pm and never returned.

[11] Mr Johnsen produced copies of Mr Rickman’s pay slips. He says (and it was not

disputed) that the pay week is from Monday to Sunday with payday on the Monday. Mr
[2016] FWC 1120

Rickman’s first pay slip shows he worked a full week and was paid on 2 November 2015. He

was paid $989.62, gross, for the week’s work.

[12]      The second pay slip for Mr Rickman shows that the pay period (the period for which

he was paid) was 2-3 November 2015 and that the payment date was 3 November 2015 (the

Wednesday). This documentary evidence supports Mr Johnsen’s claim that Mr Rickman

walked out on the Tuesday and did not return. Having left he was paid for the period he did

work.

[13]      Ms Jaschke suggested that Mr Rickman had worked more days (until Thursday

5 November 2015 when she says he walked out) without being paid. Mr Miller, in his

evidence, said Mr Rickman had been seen at the bakery after 2 November 2015 although he

had no direct evidence of this and only knew it because Ms Jaschke had told him. Mr Miller

further says that an ex-employee of Australind saw Mr Rickman at the bakery when he

delivered some flour but Mr Miller could not say when this was.

Findings and conclusion

[14]      I am satisfied that, at the time Ms Jaschke’s employment was terminated, Australind

had 14 employees.

[15]      I have reached this conclusion on the basis of the documentary evidence, which I have

accepted, produced by Mr Johnsen of Mr Rickman’s payslips. This evidence supports the

conclusion that Mr Rickman only worked two days in the week commencing 1 November

2015 and was paid for those two days.

[16]      The evidence of Mr Rickman as to what an ex-employee saw, is of no assistance to me

in resolving this matter. Mr Miller did not know when Mr Rickman had been seen and, in any

event, the evidence is hearsay and of no probative value. Whilst I do not dispute Mr Miller’s

evidence as to what Ms Jaschke may have told him of when Mr Rickman was at work, this is

not evidence that Mr Rickman was actually at the bakery on the Thursday evening.

[17]      Even if I was to accept the evidence of Ms Jaschke that Mr Rickman worked on

Thursday 5 November 2015 she says that he walked out that night at around 11.00 pm and

never returned. If it is the case that he abandoned his employment on 5 November 2015 it

would strongly suggest that he was not employed on 6 November 2015, the day Ms Jaschke

was dismissed. On the date of her dismissal Australian therefore only employed 14

employees.

[18]      The legislative requirements that must be met to make an application to the Fair Work

Commission for relief from unfair dismissal are clear. If the person works for a small business

the person must have completed 12 months employment to be eligible to make such an

application. Ms Jaschke does not meet this requirement. Her application is therefore outside

the jurisdiction of the Commission and must be dismissed.

[19] In reaching this decision I make no comment on the merits or otherwise of Ms

Jaschke’s claim for unfair dismissal.
[2016] FWC 1120

[20]      An order PR577270 reflecting this decision has been issued in conjunction with this

decision.

COMMISSIONER

Appearances:

S Jaschke the applicant.

J Miller for the applicant.

R Johnsen and A Johnsen from Johnson Quality Bakeries Pty Ltd T/A Australind Bakery.

Hearing details:

2016.

Melbourne:

17 February

Final written submissions:

Respondent, Wednesday 17 February 2016.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR577238>