Julia Grinblat v Dynasty Global Pty Ltd

[2013] FWC 3810

[2013] FWC 3810

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Julia Grinblat
v
Dynasty Global Pty Ltd
(U2012/15121)

COMMISSIONER JOHNS MELBOURNE, 14 JUNE 2013

Application for unfair dismissal remedy - Jurisdiction - Minimum employment period - Small Business Employer.

Introduction

[1] On 16 November 2012 Julia Grinblat (Applicant) made an application pursuant to section 394 of the Fair Work Act 2009 (Act) for a remedy for unfair dismissal.

[2] Dynasty Global Pty Ltd (Respondent) is the respondent in this matter. It is a recruitment company and provider of skilled migrants to Australian companies. The Australian Securities & Investments Commission (ASIC) records that the Respondent was registered on 6 September 2012. The Respondent has one director, Andrew James Sackl.

[3] Having considered the application in this matter and taking into account the wishes of the Applicant as to the way in which the Fair Work Commission (Commission) should:

• consider her application; and



• inform itself in relation to the application,

the Commission decided to determine the application by way of an Arbitration Conference under section 398 of the Act.

[4] An Arbitration Conference was conducted by the Commission on 10 May 2013 and 11 June 2013. The Respondent did not participate in the Arbitration Conference.

Attempts made to contact the Respondent

[5] On 21 November 2012 the matter was listed for conciliation by telephone to be conducted on 5 December 2012. The Notice of Listing was sent to the Respondent’s Principal Place of Business address notified to ASIC.

[6] No representative for the Respondent participated in the conciliation. Neither the Conciliator nor other members of the Commission staff were able to make contact with Mr Sackl.

[7] On 8 January 2013 Commission staff sent an email (to the email address of Mr Sackl provided by the Applicant) noting that the Respondent had not filed an Employer’s Response and providing it with an opportunity to do so. In addition Mr Sackl was advised,

“if I have not received this information from you by 15 January 2013, I will proceed to list the matter for an arbitration.”

[8] The email from the Commission received an “undeliverable” reply message.

[9] On 11 January 2013 the matter was listed for hearing. The Notice of Listing was sent by:

• express post to the Respondent’s Principal Place of Business address notified to ASIC; and



• email to the email address of Mr Sackl provided by the Applicant.

[10] On 15 February 2013 the Applicant confirmed with the Commission that she had served a copy of her submissions on the Respondent by email.

[11] On 6 March 2013 Commission staff sent an email to the email address of Mr Sackl provided by the Applicant. The Commission staff member wrote,

“Could you please call the Fair Work Commission ... in relation to your submissions which were due on Monday, 4 March 2013.”

[12] The email from the Commission received an “undeliverable” reply message.

[13] On 3 April 2013 an Amended Notice of Listing was sent to the Respondent again by post and by email to Mr Sackl.

[14] On 22 April 2013 a Further Amended Notice of Listing was sent by:

• express post to the Respondent’s Principal Place of Business address notified to ASIC; and



• email to email address of Mr Sackl provided by the Applicant.

[15] Australia Post records show that the Notice of Listing sent on 22 April 2013 was delivered on 23 April 2013.

[16] On 7 May 2013 the Commission requested that another search be undertaken of the ASIC database. That search revealed that the Respondent continues to be a registered company. Mr Sackl continues to be its sole director.

[17] The Registered Address of the Respondent is that of a firm of Certified Practising Accountants. On 7 May 2013 my Associate made contact with the firm and was provided with an alternate postal address and email address for Mr Sackl.

[18] On 7 May 2013 the Commission wrote to Mr Sackl by post and by email to the addresses provided by the Certified Practising Accountants in the following terms:

“An application has been made to the Fair Work Commission for an unfair dismissal remedy against Punk Jobs Pty Ltd trading as Dynasty Global Pty Ltd.

The application was made by Ms Julia Grinblat on 16 November 2012 and lists you as a contact for Dynasty Global Pty Ltd.

The Fair Work Commission has made several attempts to contact you in relation to this matter without success.

The matter is currently listed to be heard by way of an Arbitration Conference at 10.00 am on Friday, 10 May 2013. I have attached the Notice of Listing to this letter for your reference.

If you, or another representative of Dynasty Global Pty Ltd, wish to have this matter adjourned to a later date or provide submissions for me to consider as part of this determinative conference, please contact chambers as soon as possible on [phone] or by email to [email protected].

If you do not contact chambers prior to the commencement of the determinative conference, the matter will proceed and I will make a decision on the materials available to me at that time.

This means that, if there is no attendance by Dynasty Global Pty Ltd on Friday orders, may be made against it in its absence.”

[19] The Arbitration Conference commenced on 10 May 2013. The Applicant attended in person and was not represented. There was no attendance on behalf of the Respondent or by Mr Sackl.

[20] During the course of the Arbitration Conference on 10 May 2013 the Commission invited the Applicant to make an application to the Commission for an Order Requiring a Person to Attend under subsection 509(2)(a) of the Act directed to Mr Sackl. The Applicant made such an application. An Order was issued on 10 May 2012 (Order) and the Arbitration Conference was adjourned to 12 June 2013 to allow the Applicant adequate time to effect service of the Order.

[21] The Arbitration Conference resumed on 11 June 2013. The Applicant attended in person. There was no attendance on behalf of the Respondent or by Mr Sackl

[22] The Applicant gave evidence that between 10 May 2013 and 12 June 2013 she had made various attempts to contact Mr Sackl, without success. Further, the Applicant tendered an Affidavit of Service from a process server swearing to the personal service of the Order on Mr Sackl “on Friday, 31 May 2013 at 7:12 PM.” [Exhibit JG17]

[23] Section 600 of the Act enables the Commission to determine a matter in the absence of a party required to attend before it, so long as it does not dispense with the need to observe natural justice.

[24] The Commission decided to determine the matter in the absence of the Respondent. It was appropriate to do so having regard to the history of the attempts made to make contact with the Respondent and its sole director, Mr Sackl, (in particular his failure to attend the Commission pursuant to the Order).

Material before the Commission

[25] The Applicant filed written submissions in the Commission on 11 February 2013 [Exhibit JG1]. In breach of the Directions made by the Commission on 22 January 2013, the Respondent did not file written submission.

[26] The Applicant filed a witness statement [Exhibit JG2] and gave evidence on her own behalf. The Applicant also filed witness statements from two witnesses:

• Jennifer Malloch [Exhibit JG3] - the Respondent’s bookkeeper in either a contractor or employee capacity between about April and 4 October 2012; and



• Leonard Greenan [Exhibit JG4] - the Respondent’s General Manager until 9 November 2012.

[27] Ms Malloch also attended at the Arbitration Conference to give evidence on the Applicant’s behalf. Mr Greenan did not attend and the Applicant advised the Commission that she no longer sought to rely upon his evidence.

[28] No evidence was given on behalf of the Respondent.

Background to employment

[29] On 26 March 2012 the Applicant received a Letter of Offer of Employment on the letterhead of “Punk Jobs” [Exhibit JG5]. The Applicant was offered a position as a Reception and Administrative Officer commencing on 27 March 2012. The Applicant was to be paid $39,000 per annum plus superannuation.

[30] A payslip tendered by the Applicant [Exhibit JG6] indicates that, by 5 July 2012, Punk Jobs Pty Ltd had increased the Applicant’s annual salary to $46,800 per annum.

[31] ASIC records that Punk Jobs Pty Ltd:

• was registered in September 2009;



• it has a director and secretary other than Mr Sackl;



• Mr Sackl ceased to be a director of Punk Jobs Pty Ltd on 30 June 2012.

[32] The Applicant gave evidence that,

“in July 2012 [Punk Jobs] was rolled over and began trading as Dynasty Global Pty Ltd. Shortly after the rollover I was promoted to the position of recruitment consultant...”

[33] Another payslip tendered by the Applicant dated 9 August 2012 [Exhibit JG7] confirms that, at least from that date, the Respondent was paying the Applicant an annual salary of $46,800 per annum (although exhibit JG7 continues to record the Applicant’s classification as “Receptionist and Administration Officer”).

[34] The Commission notes that a bundle of the Applicant’s bank statements tendered by the Applicant [Exhibit JG8] record that, at least up until 8 November 2012, the Applicant was paid by Punk Jobs Pty Ltd. It was the evidence of Ms Malloch that, despite what the bank statements recorded, from July 2012 the payer of the Applicant’s salary was the Respondent.

[35] The Applicant gave evidence that on 9 November 2012 she was told by Respondent’s General Manager, Mr Greenan, that her employment was terminated with immediate effect. The Applicant says she was,

“told [the termination] was due to a lack of funds with which to pay [her] salary and impending backruptcy. However, the day of my termination a new member of staff introduced herself to us as a new recruitment consultant, the same position I had held.”

Protection from Unfair Dismissal

[36] An order for reinstatement or compensation may only be issued where the Commission is satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.

[37] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal. One of the requirements is that “the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period” (subsection 382(a)).

[38] The “meaning of minimum employment period” is dealt with in section 383 of the Act. Different periods apply depending on whether the employer is a “small business employer”. If the employer is a small business then the minimum employment period is one year (subsection 383(b)).

[39] The “meaning of small business employer” is dealt with in section 23 of the Act. In short, a small business employer “employs fewer than 15 employees” (subsection 23(1)).

[40] During the course of the Arbitration Conference it became apparent that a jurisdictional question arose as to whether the Respondent was a small business employer.

[41] It was the evidence of:

• Ms Malloch that the Respondent employed between 6 to 8 employees; and



• the Applicant that the Respondent employed between 8 to 14 employees. However, the further evidence of the Applicant was that employees had been leaving the Respondent’s employ over a period of time and that immediately before her dismissal the Respondent employed 8 employees (including herself).

[42] Consequently, the Commission is satisfied that:

• when the Applicant’s employment was terminated on 9 November 2012 the Respondent employed less than 15 employees; and



• the Respondent was a small business employer as at the time of the termination of the Applicant.

[43] Therefore, in accordance with section 383 of the Act, the minimum employment period in order for the Applicant to access an unfair dismissal remedy was one year.

What was the Applicant’s period of employment?

[44] The Applicant’s period of employment was:

• just over 7 months if the Applicant’s service with Punk Jobs Pty Ltd counts as service with the Respondent; or



• around 4 months if the Applicant’s service with Punk Jobs Pty does not count as service with the Respondent.

[45] In either case the Applicant’s employment was less than one year. Accordingly, it is not necessary to determine whether the Applicant’s service with Punk Jobs Pty Ltd is included as continuous service with the Respondent. A determination of the issue would not assist the Applicant overcome the jurisdictional hurdle to the continuation of her application, which may have otherwise had merit if the Commission were required to determine whether the Applicant’s dismissal was unfair.

[46] Accordingly, the application for relief must be dismissed.

[47] An Order [PR537858] will be issued with this Decision.

COMMISSIONER

Hearing details:

2013

Melbourne

10 May

11 June

Printed by authority of the Commonwealth Government Printer

<Price code C, PR537855>