Laura Keyte v Ambd Pty Ltd T/A Local Blue Pages

[2011] FWA 8804

[2011] FWA 8804

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Laura Keyte
v
AMBD Pty Ltd T/A Local Blue Pages
(U2011/10803)

COMMISSIONER BISSETT MELBOURNE, 14 DECEMBER 2011

Jurisdictional objection.

[1] This is an application by Ms Laura Keyte for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Keyte commenced employment with AMBD Pty Ltd t/as Local Blue Pages (Local Blue Pages) on 31 January 2011. She was dismissed from her employment on 12 August 2011.

[3] Local Blue Pages lodged a jurisdictional objection to the application made by Ms Keyte on the grounds that Local Blue Pages employed fewer than 15 employees at the time Ms Keyte was dismissed and Ms Keyte had been employed for less than 12 months. This decision deals with the jurisdictional objection.

[4] On 28 September 2011 directions were issued for the filing and serving of witness statements and submissions in relation to the jurisdictional objection. Local Blue Pages was required to comply by 13 October 2011 and Ms Keyte was required to file and serve her material by 26 October 2011. Local Blue Pages filed its material as required. Ms Keyte failed to file any material in accordance with the directions.

[5] The jurisdictional objection was listed for hearing on 4 November 2011. On 3 November 2011 my chambers received a request from Ms Keyte to have the matter adjourned until some (unspecified) date in 2012. Ms Keyte was advised that her request was considered by me and rejected and that the hearing would proceed on 4 November 2011. At 8.00am on 4 November 2011 my chambers received an email from Ms Keyte advising that she was unable to attend the hearing due to medical reasons. A medical certificate stating that Ms Keyte was unwell was attached to the email. On this basis the matter was adjourned and re-scheduled for 21 November 2011. Ms Keyte was also directed to file and serve any witness statements and submissions by 16 November 2011. Ms Keyte did not lodge any written material in accordance with these directions

[6] At the hearing on 21 November 2011 Ms Keyte appeared on her own behalf. Mr Papas, of Local Blue Pages, failed to appear at the designated time. My associate contacted Mr Papas’ office where staff indicated that he was on his way. I proceeded to hear from Ms Keyte and advised her that I would provide transcript to Mr Papas to enable him to reply to the submissions of Ms Keyte. Mr Papas subsequently arrived at the Tribunal an hour after the listed commencement time, having misread the notice of listing. By this time the hearing had finished. Mr Papas was subsequently provided with the transcript of the hearing to which he provided a written response.

Submissions

[7] Local Blue Pages provided documentary evidence, including a staff list as at 1 August 2011 and a WorkSafe Insurance Declaration as at 30 June 2011, both of which indicated that Local Blue Pages employed fewer than 15 employees at the relevant dates.

[8] Ms Keyte submitted that there were in fact more employees of Local Blue Pages than those submitted by Mr Papas. In particular Ms Keyte submitted that there were at least seven sales people not listed on the staff list provided by Mr Papas.

[9] Following the hearing I had the transcript sent to Mr Papas with a requirement that he respond by 30 November 2011. Mr Papas advised that the additional persons named by Ms Keyte were not employees of Local Blue Pages but contractors to the company. He further clarified the employee list provided by him in response to the initial directions, indicating that two of the employees on the list were incorrectly shown as being employed at the time Ms Keyte was dismissed. Mr Papas indicated that he was prepared to provide, on a confidential basis, taxation and service contracts to further support his submission as to the number of employees of Local Blue Pages.

[10] This material was provided to Ms Keyte who advised that she ‘know[s] he has more salesman’ but ‘cannot prove it.’

Consideration

[11] The Act states:

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 her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Note: High income threshold indexed to $118,100 from 1 July 2011

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.

[12] Small business is defined at s.23 of the Act:

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.

[13] On the basis of the material before me I am satisfied that at the time Ms Keyte was dismissed she had been employed for a period of less than one year. I am also satisfied that at the time Ms Keyte was dismissed Local Blue Pages employed fewer than 15 employees, including Ms Keyte.

[14] Ms Keyte is therefore not protected from unfair dismissal pursuant to s.382 of the Act.

[15] Ms Keyte’s application fails for want of jurisdiction. Her application is therefore dismissed. An order to this effect will issue concurrent with this decision.

COMMISSIONER

Appearances:

Ms Keyte on her own behalf

Hearing details:

2011.
Melbourne:
November 21.

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