Lisa Gardner v Elliott Australia Group Pty Ltd T/A Elliott Insurance Brokers

[2019] FWC 1004

[2019] FWC 1004

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lisa Gardner
v
Elliott Australia Group Pty Ltd T/A Elliott Insurance Brokers
(U2018/9844)

COMMISSIONER WILLIAMS PERTH, 19 FEBRUARY 2019

[1] This matter involves an application made on 22 September 2018 by Ms Lisa Gardner (Ms Gardner or the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Elliott Australia Group Pty Ltd T/A Elliott Insurance Brokers (the Respondent).

[2] The Respondent filed a form F3-Employer’s Response to Unfair Dismissal Application (the Employer’s Response) on 8 October 2018.

[3] The Employer’s Response raised a number of jurisdictional objections including that the Applicant’s employment does not meet the minimum employment period.

[4] This application was allocated to myself on 19 October 2018.

[5] The Commission wrote to the parties on 22 October 2018 directing both parties to provide information regarding the minimum employment jurisdictional objection raised by the Respondent.

[6] On 5 November 2018 the Respondent filed written materials and served these on Ms Gardner and her representative which included copies of Payroll Employee Summaries for the month of September 2018 and October 2018 which listed 13 employees, including the Applicant, for September 2018 and 12 employees in October 2018. The materials noted that Ms Rachael Burnell (Ms Burnell) undertakes financial management functions for the Respondent through her own company.

[7] In reply the Applicant’s representative filed a witness statement dated 19 November 2018 which stated that she had observed Ms Burnell working in the office and she did not appear to be any different to other employees and is described on the website as the CFO and Business Manager and that the Founder and Director of the Respondent, Mr John Elliott (Mr Elliot), was also employed in the business.

[8] In light of the conflict in evidence between the parties on the number of employees the parties were notified of a hearing to be held on 17 December 2018 which subsequently was amended to 14 February 2019 due to unavailability of the parties.

[9] On 7 February 2019 by email the parties were requested to advise who their witnesses would be that would be attending the hearing. On 12 February the Respondent’s representative advised that they would have two witnesses Mr Garth Krasinski (Mr Krasinski) CEO and Ms Burnell and this correspondence was forwarded to the Applicant’s representative the same day.

[10] On 12 February 2019 the Applicant’s representative acknowledged the Commission’s emails regarding the identity of the witnesses and advised that he had not been able to contact Ms Gardner and advised he would have to withdraw unless he heard from her by the following morning.

[11] On 13 February 2019 the Applicant’s representative emailed the Commission advising that he had not been able to contact the Applicant and so was without instructions for the hearing the next day and was therefore lodging a form F54-Notice of Representative Ceasing to Act.

[12] The same day at 1:02 p.m. my associate emailed the Applicant referring to the fact her representative has ceased to act for her and confirming that the hearing as listed would proceed at 10:00 a.m. the next day and advising if she did not attend the hearing the matter would be determined by the Commission having regard for the evidence given by the Respondent’s witnesses and the written materials that had previously been filed by both parties.

[13] On Thursday, 14 February 2019 the hearing proceeded. The Applicant did not attend the hearing. There had been no contact from the Applicant regarding the hearing and consequently the hearing proceeded in her absence. The Applicant, as at the date of this decision, has not contacted the Commission further regarding this matter.

[14] At the hearing evidence was given by both Mr Krasinski and Ms Burnell.

Findings of fact

[15] The application states that Ms Gardner began working for the Respondent on 17 October 2017 and her dismissal took effect on 10 September 2018. The Respondent’s response states the dismissal took effect on 16 September 2018.

[16] Therefore I find that Ms Gardner’s period of employment was less than one year both at the time she was given notice of her dismissal and immediately before the dismissal.

[17] I have had regard for the witness statement of the Applicant that had previously been filed in this matter and the witness statements of Mr Krasinski and Ms Burnell which they both confirmed at hearing under oath and the other written materials previously filed including the Payroll Employee Summaries for September 2018 and October 2018.

[18] I accept the evidence of Mr Krasinski that Mr Elliott is not an employee of the Respondent.

[19] I accept the evidence of Mr Krasinski and Ms Burnell that Ms Burnell is not an employee of the Respondent but is engaged by the Respondent as a contractor to provide various financial and business support services.

[20] Therefore I find that the Respondent was a small business employer both at the time the Applicant was given notice of her dismissal and immediately before her dismissal.

Consideration

[21] Sections 382 and 383 of the Act, set out below, prescribes that a person is protected from unfair dismissal if the person is an employee who has completed a period of employment with her employer of at least the minimum employment period and that for a small business employee the minimum employment period is one year.

“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.

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.”

[22] The Commission under section 390(1)(a) of the Act, as set out below, is only empowered to order a remedy where a person has been unfairly dismissed if it is satisfied that the person was protected from unfair dismissal at the time of being dismissed.

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[23] Given the facts above I am satisfied that the Applicant had not, neither at the time she was given notice of her dismissal nor immediately before her dismissal, completed a period of employment of at least the minimum employment period as required by section 382 of the Act. Consequently the Applicant was not a person protected from unfair dismissal and was not able to make this application.

[24] Accordingly this application will be dismissed and an order [PR704997] to that effect will now be issued in conjunction with this decision.

Appearances:

No appearance on behalf of the Applicant.

R Jones representative for the Respondent.

Hearing details:

2019.

Perth:

February 14.

Final written submissions:

Applicant, 19 November 2019.

Respondent, 5 November 2019.

Printed by authority of the Commonwealth Government Printer

<PR704995>