Kable and Secretary, Attorney General's Department

This matter concerned an application for an advance under the Fair Work Entitlements Guarantee Act (FEG Act) by an employee of POB Constructions, who sought redundancy payments following the termination of her employment. The Secretary, Attorney-General's Department, was the respondent. The dispute centred on whether POB Constructions qualified as a "small business employer" under the Fair Work Act (FW Act) at the time of the applicant's termination, which would impact her entitlement to redundancy pay.

The primary legal issue before the Tribunal was to determine whether POB Constructions was a small business employer immediately before the applicant's employment was terminated. This determination hinged on whether the company had fewer than 15 employees at that specific time, as defined by section 23 of the FW Act. The Tribunal was required to ascertain the correct date for assessing the number of employees and apply the relevant provisions of the FW Act, particularly section 121 which excludes redundancy pay obligations for small business employers.

The Tribunal found that the applicant's employment was terminated on 10 August 2017. On that date, POB Constructions had 9 employees. The Tribunal noted that the company had begun shedding employees from 7 July 2017, and by 15 July 2017, the number of employees had fallen to 14. Consequently, POB Constructions met the definition of a small business employer from 15 July 2017 onwards. As the applicant's termination occurred when POB Constructions was a small business employer, she was not entitled to redundancy pay under section 119 of the FW Act. The Tribunal emphasised that it had no discretion to select an earlier date, such as 7 July 2017, for the calculation of benefits, and was bound to consider the actual date of termination.

Accordingly, the Tribunal affirmed the decision under review, concluding that the applicant's redundancy entitlement for the purposes of the FEG Act was nil.