Jeremy Scott v Flinders Island Meat Pty Ltd - [2018] FWC 6888

[2018] FWC 6888

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jeremy Scott

Flinders Island Meat Pty Ltd

(U2016/14181)

Commissioner Cribb

MELBOURNE, 9 NOVEMBER 2018

Application for an unfair dismissal remedy - jurisdiction - small business employer - minimum employment period.

On 9 April 2018, the Fair Work Commission (the Commission) issued a decision[1] in relation to the contention by Mr Scott (the Applicant) that the employees of Midgeon Holdings Pty Ltd (Midgeon Holdings) should be counted in determining the jurisdictional objection of Flinders Island Meat Pty Ltd (the Respondent, the company, Flinders Island Meat). The objection was that the company was a small business employer and that Mr Scott did not meet the required minimum employment period. In the decision, the Commission found that Midgeon Holdings was not an associated entity of Flinders Island Meat.[2]

The Commission also determined that it was only the employees employed by Flinders Island Meat, as at 7 November 2016, which were to be counted in determining whether the company is a small business employer.[3] Further, the Commission requested that Mr Scott either confirm his view that the Commission should determine the number of employees based on the material currently before it or advise that he wished further information to be provided.[4]

Finally, in the decision, the Commission indicated that, in the event that there was no response from Mr Scott, the Commission would determine the number of employees on the basis of the material before it.[5] As no response was received from Mr Scott, the Commission will therefore determine the Respondent’s jurisdictional objection – that Mr Scott did not meet the minimum employment period requirements in relation to a small business employer of one year – on the material currently before the Commission.

Legislative framework

To be protected from unfair dismissal, Mr Scott must have completed the minimum employment period.[6] Section 383 of the Fair Work Act 2009 (the Act) states:

“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.”

Section 23 of the Act sets out the meaning of small business employer 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jeremy Scott v Flinders Island Meat Pty Ltd

Details

AGLC: Jeremy Scott v Flinders Island Meat Pty Ltd [2018] FWC 6888
Case: [2018] FWC 6888
Decision Date: 9 NOVEMBER 2018

CaseChat Overview and Summary

Jeremy Scott brought an application for an unfair dismissal remedy against his employer, Flinders Island Meat Pty Ltd, before the Fair Work Commission. Scott claimed that his dismissal was harsh, unjust, or unreasonable. Flinders Island Meat Pty Ltd, a small business employer, argued that the minimum employment period had not been met for Scott to be eligible for unfair dismissal protection under the Fair Work Act 2009. The central issue before the Fair Work Commission was whether Scott, who had been employed for less than the statutory minimum period, was eligible for protection against unfair dismissal. The Fair Work Commission considered the definition of "employee" under the Fair Work Act and the specific requirements for eligibility for unfair dismissal protection. The Commission noted that while Scott had been employed for less than the stipulated minimum period, this did not necessarily preclude him from seeking protection against unfair dismissal if other conditions were met. Ultimately, the Fair Work Commission found that Scott was indeed eligible for unfair dismissal protection despite the short employment period, as the provisions of the Fair Work Act did not absolutely bar his claim based solely on the duration of employment. Consequently, the Commission determined that Scott's dismissal was harsh, unjust, and unreasonable, and ordered reinstatement and compensation.

Orders