Kyran Jones v Daleair Pty Ltd

[2020] FWC 5541

[2020] FWC 5541

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kyran Jones
v
Daleair Pty Ltd
(U2020/12072)

DEPUTY PRESIDENT MASSON MELBOURNE, 22 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] On 8 September 2020, Mr Kyran Jones (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Daleair Pty Ltd (Respondent). The Applicant seeks reinstatement.

[2] The Respondent objects to the application on the basis that it complied with the Small Business Fair Dismissal Code (the Code). It was also apparent on review of the Form F2 and Form F3 filed respectively by the Applicant and Respondent that a question arose as to whether the Applicant had completed the minimum employment period of 12 months at the time of his dismissal as required under s 383(b) of the Act.

[3] Determination of the jurisdictional requirement in respect of the minimum employment period having been served was set down for a hearing/conference on 22 October 2020. Mr Stephen Dale (Mr Dale), who is the Managing Director of the Respondent, appeared for the Respondent. The Applicant did not appear and sent an email to my chambers at 10.01am on the morning of the hearing and advised as follows;

“The link you provided does not work for me and I would also like to not go ahead with this because there is no point.”

[4] Following receipt of the email from the Applicant my Associate immediately sought to contact the Applicant on my instructions to clarify whether he wished to participate by telephone or whether he wished to discontinue his application. The Applicant did not answer his telephone and in those circumstances, I decided to proceed with the hearing as listed as I did not regard his email as constituting a formal discontinuance of his application.

Background and evidence

[5] On the basis of the Form F2 filed by the Applicant and the evidence of Mr Dale, it was not in dispute that the Applicant commenced employment with the Respondent on 11 November 2019 as a first year apprentice plumber and gas fitter. He was employed under the terms of the Plumbing and Fire Sprinklers Award 2010 1 (the Award) and was in receipt of an annual wage of $27,710.98.

[6] The Applicant was dismissed by the Respondent for alleged performance and conduct shortcomings, the dismissal taking effect from 8 September 2020. 2

[7] It was not in dispute that at the time of the Applicant’s dismissal the Respondent employed 12 employees. Mr Dale also gave evidence that there were 2 associated entities, one of those being Unitess of which Mr Dale had a 50% shareholding in and was sole director and which provided air-conditioning services. According to Mr Dale, Unitess employed 1 person. The other associated entity was a caravan park which was owned by a company called Celtic Union in which Mr Dale also had a 50% shareholding. Mr Dale gave further evidence that Celtic Union did not employ any staff but sub-contracted the management and operation of the caravan park to another independent company.

Statutory Provisions

[8] Before considering the merits of the Applicant’s unfair dismissal application the Commission is required by s.396 to decide certain matters. Section 396 provides as follows:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[9] It is not contested, and I am satisfied that the application was filed within the 21-day statutory timeframe specified in s.394(2) of the Act. Therefore, the next issue that must be determined is whether the Applicant is a person protected from unfair dismissal (s.396(b)). The question to be answered in respect of s.396(b) is that found at s 382(a) which relevantly states as follows;

“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 his employer of at least the minimum employment period; and

…………………………”

[10] The minimum employment period is one year for a small business employer and six months for other than small business employers, as provided by s.383 of the Act which states as follows:

“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.”

[11] Section 23 of the Act relevantly defines a small business 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, he or she has been employed by the employer on a regular and systematic basis.

(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.”

Consideration

[12] It was not contested that the Applicant was employed by the Respondent for approximately 10 months, from 11 November 2019 until 8 September 2020. Consequently, it follows that if the Respondent was a small business employer at the time of the Applicant’s dismissal, then he is not protected from unfair dismissal because he had not completed the minimum employment period of twelve months at the time of his dismissal.

[13] I am satisfied that there were associated entities of the Respondent within the meaning of s 50AAA of the Corporations Act 2001 (Cth) and that one of those associated entities, Unitess, employed 1 person. Therefore, it will be those employees engaged by the Respondent (12 employees) and Unitess (1 employee) that are relevant for the purpose of calculating the number of employees, that total number being 13 employees.

[14] I am further satisfied that the Respondent and its associated entities employed less than 15 employees at the time of the Applicant’s dismissal. Consequently, I am satisfied that the Respondent was a small business employer at the time of the Applicant’s termination of employment.

Conclusion

[15] Having found that the Respondent was a small business employer at the time of the Applicant’s dismissal, the Applicant has not completed the minimum employment period of 12 months with the Respondent at the time of his dismissal (s 382(a) of the Act). Therefore, the jurisdictional pre-requisite concerning the minimum employment period having been served by the Applicant has not been met. The Applicant’s unfair dismissal application is dismissed. An Order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

S. Dale for the Respondent

Hearing details:

2020
Melbourne
22 October

Printed by authority of the Commonwealth Government Printer

<PR723637>

 1   MA000036

 2   Exhibit R1, Letter of Termination - Mr Kyran Jones, dated 8 September 2020