Kate Scott v Buttar Enterprises Pty Ltd

[2023] FWC 1515

[2023] FWC 1515

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kate Scott
v

Buttar Enterprises Pty Ltd

(U2023/3667)

DEPUTY PRESIDENT BELL MELBOURNE, 28 JUNE 2023

Application for an unfair dismissal remedy - jurisdiction objection - minimum employment period – no more than 4 employees - jurisdiction objection upheld - application dismissed.

1. Ms Kate Scott (Ms Scott) made an application for an unfair dismissal remedy on 28 April 2023. The Respondent, Buttar Enterprises Pty Ltd[1] (Respondent) denies the dismissal was unfair but, relevantly for this decision, stated that Ms Scott had not completed the ‘minimum employment period’ required by s 382(a) of the Fair Work Act 2009 (Act) and that she was therefore not ‘protected from unfair dismissal’.

1. In her ‘Form F2’ application, Ms Scott states that her employment with the Respondent started on 9 May 2022 and she was given notice of her dismissal on 28 April 2023, which took effect on the same day. The Respondent, in its ‘Form F3’ response provided the same dates. I accept these dates. Ms Scott was therefore employed for a period less than one year at the time immediately before her dismissal.

1. A person cannot obtain a remedy for unfair dismissal unless they were ‘protected from unfair dismissal’ at the time they were dismissed: 390(1). An employee is not ‘protected from unfair dismissal’ unless, at the time they were dismissed, they had completed a period of employment with his or her employer of at least the minimum employment period: s 382(a).

1. The ‘minimum employment period’ is defined in s 383 as follows (emphasis added):

“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.”

1. A ‘small business employer’ is defined in s 23 of the Act as follows:

“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, the employee is a regular casual employee of the employer.

(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.”

1. On 29 May 2023, I issued directions for the filing of evidence and submissions by the parties on the question of whether Ms Scott had completed the minimum employment period, as well as listing the matter to be heard on 28 June 2023. Following a mention hearing on 5 June 2023, those directions were amended to allow Ms Scott to consider if she pressed her claim.

1. At the same mention hearing, the Respondent stated that its business was a sub-contractor delivery company for a larger freight-forwarding / delivery business (which it was unrelated to). It was also made clear Ms Scott’s dismissal arose because the Respondent’s principal was no longer going to permit Ms Scott to perform work in relation to the principal’s deliveries. While Ms Scott did not indicate that the Respondent in fact had more than 4 employees in total, after further communications with Ms Scott, she nonetheless pressed her claim and, accordingly, the listing on 28 June 2023 proceeded.

1. The Respondent filed brief material on 15 June 2023 by its director and half shareholder (the other being his brother), Mr Gurpreet Gill. Mr Gill’s evidence was that aside from himself (as an ‘owner/driver’) and two other individual sub-contractors, there was only one other person that worked for the Respondent, who was Ms Scott. Ms Scott filed no evidence and Mr Gill’s evidence was not challenged. I have no doubt that Mr Gill’s evidence was correct and I accept it.

1. Mr Gill also confirmed in his oral evidence (and there was no evidence to suggest otherwise) the Respondent was not in any way related to the freight-forwarding company which it sub-contracted to, nor that it otherwise had any related or associated entities, with or without employees. I accept that evidence.

1. In short, the Respondent is clearly a ‘small business employer’, as it employed at most between 1 and 4 employees at the relevant time – and clearly fewer than 15 employees.

1. For Ms Scott to be ‘protected from unfair dismissal’, the ‘minimum employment period’ that she was required to complete was one year ending 28 April 2023. As Ms Scott started her employment on 9 May 2022, she had not completed that year at the time she was dismissed on 28 April 2023.

1. As Ms Scott has not completed the required minimum employment period under the Act, her application is dismissed. An Order[2] to this effect will be issued in conjunction with this decision.

DEPUTY PRESIDENT

Appearances:

K. Scott on her own behalf
G. Gill from the Respondent

Determinative conference details:

2023.
Melbourne (by video link via Microsoft Teams):

June 28.

[1]     As a matter of administration under s.586(a), I amended the name of the Respondent to “Buttar Enterprises Pty Ltd”, from “Buttar Enterprises” as was listed in Ms Scott’s Form F2 application. The amendment is consistent with the documentary material filed by the Respondent and a company search.

[2] PR763545

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<PR763544>