Justin Keane v Brittania on William T/A Brittania on William

[2019] FWC 433

[2019] FWC 433

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Justin Keane
v
Brittania On William T/A Brittania On William
(U2018/10019)

DEPUTY PRESIDENT BINET PERTH, 24 JANUARY 2019

Application for an unfair dismissal remedy - jurisdictional objection – minimum employment period – no jurisdiction – application dismissed.

[1] On 27 September 2018, Mr Justin Keane (Mr Keane) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Brittania On William T/A Brittania On William (Brittania) on 15 September 2018.

[2] On 30 October 2018, Brittania filed a response to the Application asserting that Mr Keane commenced employment with Brittania on 30 October 2017, and that Brittania is a small business for the purposes of FW Act.

[3] Brittania’s response raised two jurisdictional objections to the Application. The first of these objections being that Mr Keane’s duration of employment does not satisfy the minimum employment period for employees of small businesses (First Jurisdictional Objection). The second objection being that the dismissal was consistent with the Small Business Fair Dismissal Code (Second Jurisdictional Objection).

[4] Brittania declined to participate in conciliation in relation to either jurisdictional objection and/or the merit of the Application. In light of this, the Application was listed for a hearing at 2pm on Monday 17 December 2018, for the determination of the First Jurisdictional Objection.

[5] At the Hearing Mr Keane represented himself and gave evidence on his own behalf. Britannia were granted permission to be represented by a lawyer pursuant to section 596(2)(a) of the FW Act on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.

[6] Mr James Leslie of Zafra Legal appeared on behalf of Britannia and called Mr Michael Scivolo, the accountant for Brittania and Mr Ron Williams, the hostel manager (Mr Williams) as witnesses.

[7] It was agreed by parties that Mr Keane commenced employment on 30 October 2017, and was dismissed from his employment on 15 September 2018. Mr Keane was therefore employed for a period of 10 months,2 weeks and 2 days. 1

[8] A business is a small business employer for the purposes of the FW Act if immediately before the dismissal, or at the time notice of dismissal was given, whichever is the earlier, the business employed less than 15 employees, including the Applicant and any casuals employed on a regular and systematic basis.

[9] Mr Williams gave evidence that in his position as Hostel Manager he was responsible for managing employment of staff for Britannia. According to Mr Williams, in evidence which he gave under oath, on the date Mr Keane was dismissed Brittania employed 10 employees including himself. 2 As evidence of this Mr Keane tendered a copy of the payment summary for the day in question and the payment slip and timesheet for each of the 10 employees he says were employed on that date.3

[10] Mr Keane asserts that there were other individuals performing work for Brittania who were not recorded in the company’s pay records. According to Mr Keane a number of these individuals were back-packers who were given free board rather than paid wages. Mr Williams conceded that Britannia did from time to time employ back-packers for short periods of time, however he denies that there were any other individuals employed by Britannia on the date Mr Keane was dismissed other than the 10 he identified in his witness statement.

[11] Mr Keane did not call any witnesses in support of his assertion that there were more than 15 employees employed by Britannia on the date he was dismissed. He was able to name only one employee which he says he observed working on the date he was dismissed who was not included in the list provided by Mr Williams. He conceded that he had no other evidence with respect to who was employed on the day he was dismissed.

[12] Mr Keane did seek to produce a document from June 2017, in which staff recorded handover notes between shifts. Mr Keane says that these notes make reference to cleaners and other roles which indicate that there were numerous people employed in the business. Mr Keane conceded that the notes related to a period which did not include the date on which he was dismissed. He also conceded that the identity and number of employees employed by Britannia changed often. Therefore, this evidence is of little probative value with respect to the number of employees employed on the date he was dismissed. 4

[13] In the materials in which he filed and the evidence which he gave orally at the Hearing, Mr Keane made a number of allegations about workplace bullying and award non-compliance. However, as I explained to Mr Keane at the Hearing, and my Associate endeavoured to explain to him prior to the Hearing, these are not matters which could be considered at a hearing to determine a jurisdictional objection to his application for an unfair dismissal remedy.

Conclusion

[14] Based on my findings above, I conclude that Britannia is a small business employer and that Mr Keane has not completed the required one year minimum employment period. For this reason his application for a remedy for unfair dismissal is dismissed.An order to this effect will be issued with this decision in [PR704268].

DEPUTY PRESIDENT

Appearances:

J Keane, Applicant.

J Leslie, appearing for the Respondent.

Hearing details:

2018.

Perth.

December.

Printed by authority of the Commonwealth Government Printer

<PR704267>

 1   Exhibit R1.

 2   Exhibit R4.

 3   Exhibit R5.

 4   Exhibit A1.