Lida Yuan v Victorian Education and Training Group Pty Ltd
[2021] FWC 4007
•9 JULY 2021
| [2021] FWC 4007 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lida Yuan
v
Victorian Education and Training Group Pty Ltd
(U2021/654)
COMMISSIONER YILMAZ | MELBOURNE, 9 JULY 2021 |
Application for an unfair dismissal remedy.
[1] Ms Lida Yuan (the Applicant) has applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in relation to her termination of employment by Victorian Education and Training Group Pty Ltd T/A International College of Victoria (ICV). She claims to have been unfairly dismissed on 16 December 2020. At the time of her dismissal, she was employed as a full-time Administration/enrolment officer. ICV is a private registered training organisation providing training programs to international students.
[2] ICV oppose the application and submit that the Commission has no jurisdiction to hear the substantive application as Ms Yuan was not dismissed, and if she was, that it was a small business with less than 15 employees, and therefore Ms Yuan had not met the minimum employment period of 12 months. In addition, ICV submit that even if I do not find that it is a small business employer, that Ms Yuan had not met the 6-month minimum employment period because the period from her commencement of employment until the alleged termination of employment on 16 December 2020 is less than 6 months employment. 1 Finally, ICV submit that the third jurisdictional objection is that Ms Yuan resigned by email in January 2021 and that resignation was accepted. It is submitted that the resignation is not a dismissal even though Ms Yuan argues it was a forced resignation.2
[3] Ms Yuan submits that she had resigned due to medical reasons but did so after she was dismissed by ICV. Further Ms Yuan disputes that ICV was a small business employer, and she submits that she had met the six-month minimum employment period to enliven the unfair dismissal protection provisions.
[4] It is not contested that Ms Yuan commenced employment on 22 June 2020.
[5] ICV was granted leave to be legally represented.
[6] Ms Lida Yuan was self-represented and gave evidence. Mr Khurram Ali Sheikh, Director/ CEO gave evidence for ICV.
[7] Both parties filed submissions and witness statements as directed.
[8] This decision deals firstly with the question whether ICV is a small business employer within the meaning of s.23 of the Act. If I find ICV to be a small business employer, then Ms Yuan could not have met the 12 months minimum employment period.
Was ICV a small business employer?
[9] Section 23 of the Act defines a small business employer as one that employs fewer than 15 employees. Casual employees are not counted unless they are employed by the employer on a regular and systematic basis. Associated entities are to be taken as one entity and the dismissed employee is to be included in the count of total employees at the time of the dismissal. There was no evidence of any associated entity however, ASIC shows the existence of a now cancelled busines name.
[10] Mr Sheikh gave evidence concerning the employment status of employees and whether to be counted in the total number of employees at the time of Ms Yuan’s termination of employment. Evidence tendered by ICV includes contracts of employment issued by the Victorian Education and Training Group T/A International College of Victoria and for the 2 employees that commenced in 2017, the business was Victorian Education and Training Group T/A Zain International College Pty Ltd. Both have the same ACN number, the same CEO and the 2 employees in question are existing employees with ICV.
[11] The parties agree that 6 employees were full-time. Ms Yuan disputes that one other employee was not employed as a casual but a full-time employee and submits that the casuals should be included in the count as they were, on her evidence, engaged on a regular and systematic basis.
[12] Among those whose employment status is in dispute between the parties in terms of whether they should be included in the count includes those that have been classified as casual. Section 23 defines a small employer as one that “employs fewer than 15 employees at that time”, and 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.” The determination if the employment of the casual is to be included in the total number count is if their engagement is regular and systematic and not the hours worked by the employee. 3 Based on the evidence of Mr Sheikh and ICVs tendered evidence, I find that the following individuals are engaged on a regular and systematic basis and should be added to the total count for the purposes of s.23:
(a) Ms Puri - regularly engaged since 2017 and since January 2021 became a full-time employee. Ms Puri was expected to come into work each week 4, albeit her days of work may vary5 and her contract of employment contained clauses akin to a weekly employee including restraint of trade.
(b) Ms Behnam - the contract of employment confirms casual engagement on 2 regular days per week with an assessment of her performance half yearly. The evidence supports regular and systematic engagement. 6 Mr Sheikh gave evidence that she was paid additionally for days involving work placement of students for 240 hours and their assessment in the workplace. All early learning programs last either 12 months for the certificate III program or 2 years for the diploma program.
(c) Ms Naeem worked regular and systematic hours over 3 days per week. 7
(d) Ms Misbah commenced in 2017 and her engagement has been regular and systematic as a trainer and in her subsequent role into assessment and a form of auditing of student records prior to graduation. 8
(e) Mr Elsaafin was engaged as a trainer and it was conceded that he was engaged as a regular and systematic casual. 9
(f) Ms Nabbout - an early childhood trainer, no records were tendered to show that she was not regularly and systematically engaged.
(g) Mr Callaway was a permanent casual trainer in carpentry. 10
[13] Individuals not counted which have sole trader status records, even though they appear to have been engaged regularly and systematically include:
(a) Mr Joel Goodall;
(b) Mr Jammal; and
(c) Ms Siddiq
[14] The Respondent raised the jurisdictional objection that ICV is a small business employer engaging less than 15 employees. The onus rests on ICV to demonstrate that it is a small business employer. While giving witness evidence Mr Sheikh stated that he engaged trainers in building and construction, early childhood and carpentry. In addition to the listed employees in the Respondent’s outline of submissions, Mr Sheikh referred to Karen, Camillo, Nasser and Michael. All of these individuals were either classified as casuals in the list or were not on the list, but from the evidence it is apparent that as trainers they were responsible for the delivery of training and assessment across 4 qualifications that were either 1 or 2-year programs. There was no evidence to support the contention that either of them were not regularly and systematically engaged.
[15] Having taken into account the 6 employees not in contention, the 7 regular and systematic employees identified in paragraph 12 and the further 4 referred to in paragraph 14, I do not find that ICV is a small employer as defined by s.23 of the Act.
Sections 382 and 383 of the Act – issues to be determined
[16] While the parties do not contest the commencement date being 22 June 2020, they do contest the “termination” date. On 16 December 2020, Ms Yuan met with the Director where she submits her employment was terminated with notice, while the Respondent submits that there was a discussion about her performance with a further review in January 2021.
[17] The Respondent submits that should I accept Ms Yuan’s submission that her employment was terminated with notice from 16 December 2021, then her application had not met the minimum 6-month employment period. This position ICV argues rests on s.383 which it says is “unambiguous in that it states that if the employer is not a small business, the minimum employment period is the earlier of the time when the person is given notice of the dismissal or immediately before the dismissal.” 11
[18] Before addressing the Respondent’s reliance on s.383 of the Act, that when Ms Yuan received notice of either 2 weeks or into January 2021, that from 22 June 2020 till 16 December 2020 the period falls short of the 6-month minimum employment period to enliven the unfair dismissal provisions, we need to consider s.382 of the Act.
[19] Relevantly s.382 of the Act provides:
“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.”
[20] The minimum employment period required to have been served to comply with s.382(a) is six months. Ms Yuan is required to have “at a time if, at that time” she has “completed a period of employment of at least the minimum employment period”. Section 383 provides:
“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.
[21] The six months referred to in the Act means calendar months and if Ms Yuan is correct that her employment was terminated on 16 December 2020, she had not completed 6 calendar months when notice was given of her dismissal. There is no contest that Ms Yuan’s period of employment is a period of continuous service, however, falling short of 6 months at the time she was allegedly given notice.
[22] Ms Yuan submits that her length of employment depends on the date the dismissal takes effect, and as her dismissal took effect on 8 January 2021, she had met the minimum employment period. 12 Ms Yuan’s submissions fail to take into effect that the requirement is that the minimum employment period as defined, and as provided in s.383, which provides that the measure of 6 months’ time when the notice is given or immediately before the dismissal, whichever is earlier.
[23] Consequently, the objection that Ms Yuan had not met the minimum employment period is sustained as the period in this instance is 6 months, and should I accept that Ms Yuan was given notice on 16 December 2020 she had not met the minimum employment period.
[24] Ms Yuan is adamant that her employment was terminated on 16 December 2020, while Mr Sheikh’s witness evidence contests that Ms Yuan was terminated on 16 December 2020. Witness evidence was highly contested and at times unclear; 13 however, it is of assistance that the Respondent tendered in evidence a series of emails exchanged between Ms Yuan and Mr Sheikh over 10 – 14 January 2021.14 These emails, which were not contested during the hearing, commence with Ms Yuan stating that Mr Sheikh informed her of her dismissal in mid-December 2020 giving 1-2 weeks’ notice and later stating to her that she can stay until January 2021. In the email Ms Yuan proposes that she does not stay that long and informs him that she quits immediately with her last day being 8 January 2021.15 The further emails do not contest the point raised by Ms Yuan that she was dismissed in December, rather the emails mainly centre around the period of notice, transition of work to another and Ms Yuan attached a medical certificate supporting her need to leave due to a medical condition.
[25] Having considered the witness evidence and group of email exchanges, on balance I find that the evidence favours the conclusion that Ms Yuan’s employment was dismissed by ICV. In any event the evidence on balance does not support a constructive dismissal actioned by Ms Yuan’s email of 10 January 2021. Should I accept that the meeting on 16 December 2020 was a performance meeting, this is not enough to support an argument of constructive dismissal and Ms Yuan argues that the 16 December 2020 meeting was not a performance meeting but a dismissal. 16
[26] Ms Yuan gave evidence that ICV had not paid her during an alleged unlawful standdown and raised concerns that she had not been paid her superannuation entitlements. This decision does not deal with either of these matters, and should Ms Yuan consider that she has any entitlement in this regard she may enquire with the Fair Work Ombudsman.
Conclusion
[27] I am not satisfied that ICV is a small business employer, therefore the minimum employment period to enliven the unfair dismissal protections is a period of 6 months. On balance of the evidence, I have found that Ms Yuan’s employment was terminated on 16 December 2020 with the giving of notice, and at that time Ms Yuan had not completed the minimum employment period of 6 months. Consequently, Ms Yuan is not a person protected by the unfair dismissal provisions and the application is dismissed. An order to this effect is issued in conjunction with the publication of this decision.
COMMISSIONER
Appearances:
Ms L. Yuan for the Applicant
Mr S. Ozturk for the Respondent
Hearing details:
2021
Melbourne
19 April
Printed by authority of the Commonwealth Government Printer
<PR731509>
1 Transcript at PN 21 – PN 23.
2 Transcript at PN 25.
3 Vidler v Brisbane City Council (2007) 166 IR 425.
4 Exhibit R4 payroll extract and contract of employment.
5 Transcript at PN 257 – PN267.
6 Transcript at PN 159 – PN 182 and Exhibit R5.
7 Transcript at PN 272 and Exhibit R6 contract of employment and payroll records.
8 Transcript at PN 282 and Exhibit R7.e.
9 Transcript at PN 202 – 206.
10 Transcript at PN193 – 196.
11 Outline of submissions of the Respondent filed on 18 April 2021 at [9].
12 Applicant’s outline of submissions merits of the Applicant filed 23 March 2021 at page 5.
13 Transcript at PN 445 – PN 453, PN 478 – PN 484, PN 637 – PN 654, PN 677 – PN 682.
14 Exhibit R3.
15 Email from Ms Yuan to Mr Sheikh on 10 January 2021 at 10:26am.
16 Transcript at PN 670.
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