Jennifer Gauci v Training for Work Pty Ltd T/A Training for Work
[2012] FWA 5393
•25 JUNE 2012
[2012] FWA 5393 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jennifer Gauci
v
Training for Work Pty Ltd T/A Training for Work
(U2011/2205)
COMMISSIONER RYAN | MELBOURNE, 25 JUNE 2012 |
Termination of employment - Jurisdictional Objection - small business - minimum period of employment.
[1] An application for an Unfair Dismissal Remedy was filed by the Applicant on 27 October 2011 in relation to her alleged dismissal on 17 October 2011 from her employer Training for Work Pty Ltd T/A Training for Work (the Respondent).
[2] The Respondent filed a Form F3 - Employer’s Response to Application for Unfair Dismissal Remedy and a F4 - Objection to Application for Unfair Dismissal Remedy on 16 November 2011. The Respondent raised two jurisdictional objections to the application. The first objection was that the Applicant had not served the minimum employment period specified in s.383(b) of the Act. The Respondent asserted that it was a small business employer within the meaning of s.23 of the Act and that the Applicant had not been employed by the Respondent for at least one year at the time of dismissal. The second objection was that the Applicant had not been dismissed within the meaning of s.386 as the Applicant had voluntarily resigned her employment.
[3] On 15 December 2011 Directions were issued to the parties and the first jurisdictional issue was listed for hearing on 8 February 2012. This was later amended to 7 February 2012. The first jurisdictional challenge was heard by me on 7 February 2012, 20 February 2012 and 8 March 2012 for the purpose of receiving evidence. Written submissions were then filed by the parties with the last written submissions being received on 16 April 2012.
[4] In the hearing of this matter the Applicant represented herself and was assisted by a support person, Dr Close. Neither the Applicant nor Dr Close are legally qualified. The Respondent was represented by legal counsel.
[5] This written decision only deals with the first jurisdictional challenge.
[6] The relevant provisions of the Act are s 383 and s.23 :
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.
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.
[7] It was conceded by the Applicant that her period of service with the Respondent was more than 6 months but less than one year. Thus the Applicant could only make the application if the Respondent is not a small business employer.
[8] The Respondent asserted that at the time of the termination of the Applicant’s employment, the Respondent only employed 12 persons. In addition the Respondent contended that it had another 5 persons who were listed on its website as being part of its training team but that each of these 5 persons were engaged as independent contractors and not as employees. Further, the Respondent contended that 2 of the 5 independent contractors had not provided services to the Respondent in the 12 month period prior to the date of termination of the Applicant. The Applicant contended that the true number of employees was in excess of 15 as each of the persons who formed part of the training team were employees of the Respondent and were not independent contractors.
[9] Evidence was given by Mr Brent Quill, the Respondent’s Managing Director and by 3 of the 5 persons who the Respondent contended were independent contractors.
[10] For the purpose of this decision I will refer to each of the 5 persons and where relevant the entity that entered the contract by an abbreviation as follows:
[name suppressed] is referred to as AA
[name suppressed] is referred to as BB
[name suppressed] is referred to as CC and [name suppressed] is referred to as CC P/L
[name suppressed] is referred to as DD and [name suppressed] is referred to as the DD Trust
[name suppressed] is referred to as EE.
[11] BB and EE were both referred to by Mr Quill in his evidence as persons who had not provided any work for the Respondent for the 12 months prior to the termination of the Applicant. Mr Quill in his evidence identified that BB had died in early 2012 and no other evidence of BB’s work for the Respondent was given by the Respondent. Evidence was given by CC, DD and EE. No evidence was given by AA although Mr Quill gave evidence about AA.
[12] I have considered that the language of each of the contracts under which AA, CC, DD and EE perform work are clearly structured as contracts for services rather than contracts of service and the invoice and payment system used by the Respondent is consistent with contracts for services. Against this however is the fact that each of the workers must identify with the business of the Respondent when performing work for the Respondent. Each of the workers identifies themselves with an email address @trainingforwork.com. Each worker is supplied with a mobile phone and a laptop when they perform work for the Respondent and the only means of accessing the Respondent’s IT system is through the supplied mobile phone or laptop. Each worker is supplied with business cards which identify the worker as part of the Respondent’s business.
[13] I have no doubt that each of the workers has been and may still be running their own businesses at different times. However, the question to be answered is: Is each of the workers a servant of another in that other’s business, or is each worker carrying on a trade or business of his or her own behalf? 1 The answer to that question in relation to each of AA, CC, DD and EE is found by “considering the totality of the relationship”,2 and the answer is unambiguously: Each of AA, CC, DD and EE was a servant of the Respondent in the business of the Respondent.
[14] Having considered all of the evidence in this matter and the submissions of the parties I consider that each of AA, CC, DD and EE are casual employees of the Respondent. The employees were not permanent full time nor would they meet the definition of part time employee. No detailed evidence was given by the Respondent as to the arrangements for work or the actual work of BB yet it appears that the Respondent had the capacity to do so through Mr Quill. In circumstances where the Applicant asserts that BB was an employee and in circumstances where the Respondent had the capacity to lead evidence in support of its contention that BB was not an employee I draw the inference that if such evidence had been led it would not have supported the Respondent. It is reasonable in the circumstances to conclude that BB was also a casual employee of the Respondent.
[15] Casual employees are to be counted for the purposes of ascertaining the total number of employees under s.23 only if the casual employee “has been employed by the employer on a regular and systematic basis” at the time of termination of the Applicant.
[16] On the evidence before me in this matter I conclude that CC and DD were both as at the termination date employed by the Respondent on a regular and systematic basis.
[17] I accept the unchallenged evidence of Mr Quill that BB had not performed any work for the Respondent for the 12 months period prior to the termination of the Applicant. Thus I conclude that BB had not as at the termination date ‘been employed by the employer on a regular and systematic basis”.
[18] The unchallenged evidence of Mr Quill in relation to AA shows that AA had performed a significant amount of work for the Respondent up to January 2011 and that AA performed no work for the Respondent between February and October 2011 and finally that AA performed some limited work for the Respondent in November and December 2011. Whilst AA was and is a casual employee of the Respondent the evidence discloses a pattern of work which is not regular and systematic. As at the termination date of the Applicant AA had not performed any work for the Respondent for at least 8 months. AA cannot be counted as a casual employee of the Respondent for the purposes of s.23 of the Act.
[19] EE’s evidence in this matter was that the last date EE performed work for the Respondent was October 2010 3 and that while EE was available to perform work for the Respondent as at 17 October 2011 (the termination date) EE had a number of constraints on her availability generally4. Whilst I am satisfied that EE was a casual employee and is still available for casual work when it fits in with EE’s other commitments it is clear that EE as at the termination date had not been employed on a regular and systematic basis by the Respondent.
[20] It is clear that as at the date that the Applicant’s employment was terminated the Respondent had 17 employees. However 5 of these employees were casuals and 3 of the 5 were not employed on a regular and systematic basis. For the purposes of s.23(2)(b) the 3 casual employees who were not employed on a regular and systematic basis as at the termination date cannot be counted in the total number of employees.
[21] This means that for the purposes of s.23 the Respondent had 14 employees as at the termination date of the Applicant.
[22] The Respondent is therefore a small business employer.
[23] As the Applicant had not been employed by the Respondent for a period of one year ending at the date the Applicant’s employment was terminated the Applicant has not met the minimum employment period under s.383 of the Act.
[24] The Applicant is not a person protected from unfair dismissal under s.382 of the Act.
[25] The application in this matter is dismissed.
COMMISSIONER
Appearances:
Ms J Gauci, on her own behalf together with Dr S Close
Ms E Scott, for the Respondent
Hearing details:
2012
Melbourne:
February 7, 20
March 8
1 Abdalla v Viewdaze P/L PR927971 at pn34
2 Ibid
3 Transcript at PN1202
4 Ibid at PN1203 - PN1214
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