John Bai-Kanu v YCA Recycling Company

[2020] FWC 402

[2020] FWC 402

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Bai-Kanu
v
YCA RECYCLING COMPANY
(U2019/10924)

COMMISSIONER PLATT ADELAIDE, 30 JANUARY 2020

Application for an unfair dismissal remedy.

[1] Mr John Bai-Kanu has lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) in relation to the termination of his employment with YCA RECYCLING COMPANY (YCA or the Respondent).

[2] On 10 October 2019, YCA filed a form F3 Employer Response which advised that it had 8 employees and that the Applicant had commenced employment on 27 February 2019 and ceased employment on 19 September 2019. This decision only deals with the minimum employment period issue.

[3] A Determinative Conference was conducted on 24 January 2020. Mr Bai-Kanu appeared on his own behalf and Mr Hau appeared on behalf of YCA. The following decision, now edited, was delivered at the conclusion of the Determinative Conference on 24 January 2020.

[4] Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period:

“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.”

[5] Section 383 of the Act sets out the minimum employment period:

“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.”

[6] Section 23 of the Act defines a small business employer as a national system employer who employs fewer than 15 employees at a particular time.

[7] The Respondent provided the following documents:

•  Payroll Activity Summary for the period of 1 September 2019 to 30 September 2019;

•  Business Activity Statement for September 2019; and

•  An outline of submissions.

[8] Despite the Respondent stating in its form F3 Employer Response that the Applicant commenced employment on 27 February 2019, it was agreed at the Determinative Conference that the commencement date was 16 February 2019. Mr Bai-Kanu alleged that he was dismissed on 21 September 2019 and the Respondent alleged that it dismissed Mr Bai-Kanu on 19 September 2019.

[9] Having considered the documents and the oral evidence of Mr Bai-Kanu and Mr Hau, I find that Mr Bai-Kanu was employed with the Respondent for a period of just over 7 months.

[10] It was contended by YCA that at the date of dismissal, 19 September 2019, it employed 11 persons, including the Applicant, as per the Payroll Activity Summary and Business Activity Statement for the period of September 2019. Mr Bai-Kanu contended that there may have been an additional person not included on the list but conceded that that person was terminated in the month of September 2019. Mr Bai-Kanu accepted that there were 11 persons, including himself, employed by YCA at the date of dismissal.

[11] On 13 January 2019, I requested that the Respondent also provide details of any businesses associated with YCA. No details were provided. During the Determinative Conference, Mr Hau gave evidence that there were no other related entities. Mr Bai-Kanu disputed this but could not provide any evidence or details of other related entities.

[12] On the basis of the evidence before me, I find that there are no other related entities, YCA is a small business employer as defined by s.23 of the Act and that at the time of dismissal, 11 persons were employed by YCA.

[13] The relevant minimum employment period, for the purposes of s.382 of the Act, is therefore 12 months.

[14] I find that Mr Bai-Kanu’s length of service is insufficient to complete the minimum employment period and as a result he is not protected by unfair dismissal and this application must be dismissed.

[15] An Order 1 reflecting this Decision will be issued.

COMMISSIONER

Appearances:

J.Bai-Kanu the Applicant.

K.Hau on behalf of the Respondent.

Hearing details:

2020.
Adelaide:
January 24

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