Jeremy Scott v Flinders Island Meat Pty Ltd
[2018] FWC 6888
•9 NOVEMBER 2018
| [2018] FWC 6888 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jeremy Scott
v
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 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.”
Evidence and submissions
It was submitted by the company that, as at 7 November 2016, the company employed 11 employees including Mr Scott but excluding two directors.[7] A Payroll Employee Summary, from 4 November 2016 to 10 November 2016 was provided by the company.[8] Mr Scott provided a list of 10 employees, including himself but excluding Mr Madden (Director), who were alleged to have been employed at Oakley at the time he was dismissed.[9]
During the determinative conference, held on 16 March 2017, Mr Madden gave evidence in relation to each of the employees on the company’s list. The names on the company’s list were accepted by Mr Scott.[10]
However, Mr Scott disputed the company’s list on the basis that the list did not include all of the employees who were working for the company at the time of his dismissal. It was argued by Mr Scott that the company employed 15 or more employees and so was not a small business employer.[11] In his written submissions, Mr Scott referred to a number of articles in the press between April 2015 and June 2015 which indicated that the Respondent employed more than the alleged 11 employees.[12] In addition, Mr Scott argued that 11 employees were working at the Oakleigh site alone at the time of his dismissal.[13] Further, it was contended by Mr Scott that the Respondent’s business was located across three sites. These were the abattoir on Flinders Island, the butcher shop on Flinders Island and the head office/distribution centre at Oakleigh.[14] It was stated by Mr Madden that Flinders Island Meat owned the butcher’s shop which was leased to the butcher who employed his/her own employees.[15]
The evidence from Mr Madden was that there were three employees employed at the abattoir at the relevant time – AR, CK and DM.[16] In addition, there were said to have been three full time drivers at Oakleigh – Mr Scott, MH and RC.[17]
It was contended by Mr Scott that an employee (KR) should be included on the list of employees.[18] With respect to KR, it was confirmed by Mr Madden that KR had started one or two weeks before Mr Scott was dismissed. Mr Madden explained that KR was helping out in IT and deliveries in a casual manner and that he had invoiced the company for the work performed.[19] It was stated by Mr Madden that KR had “never been on the books” and that KR had always provided invoices as he had his own consultancy IT business.[20] A copy of an invoice from KR was provided to the Commission and to Mr Scott. Mr Scott highlighted the fact that the invoice did not have an ABN. In response, Mr Madden agreed that there was no ABN on the invoice but said that KR would certainly have one.[21] It was explained that KR did the overflow driving work and that two thirds of the time KR would be available and the other third he would be busy and unavailable.[22]
In relation to TW, it was argued by Mr Scott that TW was the abattoir manager and provided an article to support his view. Mr Madden agreed that, at the time of the article (7 July 2015), TW was a full-time employee. However, TW was said to no longer be working at the abattoir as he had resigned and was working elsewhere on the island.[23]
Mr Scott also contended that other employees were SN (meat packer), MB (shop assistant), DL (labour contractor at Flinders Island Meat since 2013), JR, MTK and KaR (butcher’s apprentice at Flinders Island Meat). Mr Madden indicated that he could not comment on the butcher’s shop as he did not have any knowledge of who the butcher employed.[24]
It was alleged by Mr Scott that, based on Facebook, SN started with the company on 28 January 2016 and that that person was still employed as a meat packer at the time of his dismissal.[25] Mr Madden stated that the names were not known to him and that, even if they had worked at the abattoir in the past, they were not employed on 7 November 2016.[26] With respect to the apprentice and the other non-butcher shop employees, Mr Madden said that they were not employees of the company at the relevant time.[27]
Mr Madden indicated that he was confident and could categorically say that there were no contractors involved in the actual workings of the abattoir (e.g. meat packing) who should have been classified as employees. The only contractors were those who were called in for machinery breakdowns and maintenance.[28]
Considerations and conclusion
The Respondent provided a list of 11 employees as at 7 November 2016 which was accepted by the Applicant. The issue for Mr Scott was that there were other employees of the company whose names should be added to the list. On the basis of the material before me, there is no evidence which supports the addition of any names to the company’s list. Therefore, I find that, as at 7 November 2016, the Respondent employed 11 employees. Accordingly, I am satisfied that the Respondent was a small business employer at the time of Mr Scott’s dismissal.
The minimum employment period required in relation to a small business employer is one year. Mr Scott commenced employment with the company on 7 March 2016 and was dismissed by the company on 7 November 2016 – a period of 8 months. As Mr Scott’s employment was for a period less than one year, Mr Scott does not meet the required minimum employment period.
Therefore, the Respondent’s jurisdictional objection is upheld and Mr Scott’s application is dismissed. An order[29] to this effect will be issued separately.
Appearances:
J Scott on his own behalf (determinative conference only)
J Madden from the Respondent
Hearing details:
2017.
Melbourne (determinative conference):
March 16.
2018.
Melbourne:
February 21.
<PR702166>
[1] [2018] FWC 1469
[2] Ibid at [36]
[3] Ibid
[4] Ibid at [37] – [39]
[5] Ibid at [40]
[6] See s.382 of the Fair Work Act 2009
[7] Exhibit R1 at paragraph 6 and Exhibit R2 at paragraph 5
[8] Exhibit R2 at Attachment A
[9] Exhibit A2 at paragraph 11
[10] Transcript PN 150
[11] Ibid PN 147 – 153, Exhibit A1 at paragraph 8 and Exhibit A2 at paragraph 13
[12] Exhibit A1 at paragraph 10(c) and Exhibit A2 at paragraph 13(c)
[13] Ibid at paragraph 10(d) and ibid at paragraph 11
[14] Ibid at paragraph 10 and ibid at paragraph 9
[15] Transcript PN 280 – 286
[16] Ibid PN 142 – 146
[17] Ibid PN 195 – 197
[18] Exhibit A2 at paragraph 13(b)
[19] Transcript PN 156 – 159
[20] Ibid PN 185, 213 and 225
[21] Ibid PN 191
[22] Ibid PN 219
[23] Ibid PN 263 – 278
[24] Ibid PN 279 – 286, 348 – 355 and 408 – 418
[25] Ibid PN 294 – 311
[26] Ibid PN 312
[27] Ibid PN 291 – 292
[28] Ibid PN 336 – 340 and 538
[29] PR702170
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