Luke Field v Knight Frank Illawarra Pty Ltd
[2024] FWC 3111
•12 NOVEMBER 2024
| [2024] FWC 3111 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Luke Field
v
Knight Frank Illawarra Pty Ltd
(U2024/10445)
| COMMISSIONER CRAWFORD | SYDNEY, 12 NOVEMBER 2024 |
Unfair dismissal application – jurisdictional objection alleging minimum employment period not completed –– finding that employer had 14 employees at the time of dismissal – minimum employment period of 12 months not completed – jurisdictional objection upheld – application dismissed.
BACKGROUND
Knight Frank Illawarra Pty Ltd (Knight Frank Illawarra) operates a real estate business in Wollongong and surrounding areas. Luke Field commenced employment with Knight Frank Illawarra as an Executive, Leasing and Sales on 11 October 2023. Mr Field was dismissed by Knight Frank Illawarra on 16 August 2024 on the basis that his position was redundant. Mr Field filed an unfair dismissal application on 5 September 2024. Knight Frank Illawarra raised a jurisdictional objection to Mr Field’s application on the basis that it had less than 15 employees when Mr Field was dismissed and that Mr Field had not completed the minimum employment period of 12 months. There was no dispute that Mr Field had not completed 12 months of service, but Mr Field argued that Knight Frank Illawarra had 15 or more employees when he was dismissed. This decision concerns whether Knight Frank Illawarra had 15 or more employees when Mr Field was dismissed.
I issued directions for the filing of material regarding Knight Frank Illawarra’s jurisdictional objection and listed that issue for a determinative conference/hearing via Teams on 6 November 2024. Mr Field represented himself and Ben Mostyn (Managing Director) represented Knight Frank Illawarra. The parties agreed with my view that it was appropriate to conduct a determinative conference rather than a hearing.
MATERIAL FILED
Knight Frank Illawarra
Knight Frank Illawarra filed the following evidence in support of its argument that it had less than 15 employees when Mr Field was dismissed:
· A witness statement from Mr Mostyn dated 25 October 2024. The statement had ASIC records attached which demonstrate he is the director and secretary of Knight Frank Illawarra and that the shares in the business are owned by BJM RE Pty Ltd (BJM). Mr Mostyn also provided ASIC records to confirm he is the director and sole shareholder for BJM. Mr Mostyn gave evidence that BJM is the trustee for Mr Mostyn’s family trust. I marked Mr Mostyn’s statement Exhibit R1. Mr Mostyn provided evidence under an affirmation during the determinative conference.
· A statutory declaration from Allen Brooks dated 4 November 2024. Mr Brooks declared that he operates a business named Crown Property Solutions as a sole trader and his business provides facility management services to Knight Frank Illawarra. Mr Brooks attached a copy of an invoice issued to Knight Frank Illawarra to his declaration. Mr Brooks declared that he has never been employed by Knight Frank Illawarra and that he is an independent contractor. I marked Mr Brooks’ declaration Exhibit R2. Mr Brooks was not required for cross-examination.
· A statutory declaration from Bianca Trunzo dated 5 November 2024. Ms Trunzo declared that she is in a relationship with Mr Mostyn and is employed as a lawyer by Advantage Partnership Lawyers. Ms Trunzo declared that she has never been employed by Knight Frank Illawarra. I marked Ms Trunzo’s declaration Exhibit R3. Ms Trunzo was not required for cross-examination.
· A witness statement from Fei Gong dated 25 October 2024. Ms Gong has been Knight Frank Illawarra’s accountant since September 2023. Ms Gong processes the payroll for Knight Frank Illawarra. Ms Gong attached payroll records which indicate Knight Frank Illawarra had 13 employees when Mr Field was dismissed on 16 August 2024. Ms Gong also attached ASIC records for Knight Frank Illawarra and BJM to her statement. I marked Ms Gong’s statement Exhibit R4. Ms Gong was cross-examined by Mr Field during the determinative conference.
Knight Frank Illawarra filed written submissions and Mr Mostyn made oral submissions during the determinative conference.
Mr Field
Mr Field relied on an undated witness statement filed 2 November 2024. Mr Field provided evidence that the employment records provided by Frank Knight Illawarra should have included Mr Mostyn, Mr Brooks, and Ms Trunzo. Mr Field provided evidence of hearing about payments being made by Knight Frank Illawarra to all three people and that he had viewed bank transactions confirming payments had been made. Mr Field confirmed in his statement that the employment records provided by Knight Frank Illawarra were otherwise accurate. Mr Field was not required for cross-examination. I marked Mr Field’s statement Exhibit A1. I rejected Mr Mostyn’s argument that I should not consider Mr Field’s statement because it was filed a day late.
Mr Field provided written submissions and made oral submissions during the determinative conference.
CONSIDERATION
Mr Mostyn accepted during the determinative conference that he should be included in the count of Knight Frank Illawarra’s employees. That brings the non-contested total to 14 employees.
Mr Field argued that Mr Brooks and Ms Trunzo were employees of Knight Frank Illawarra when he was dismissed on 16 August 2024. If Mr Field is right about either Mr Brooks or Ms Trunzo being an employee, Knight Frank Illawarra would not have had less than 15 employees when Mr Field was dismissed and Mr Field would have completed the minimum employment for a non-small business, which is six months.
I cannot find on the evidence provided by the parties that Mr Brooks and Ms Trunzo were employees of Knight Frank Illawarra on 16 August 2024.
It is clear Mr Brooks is an independent contractor who provides services to Knight Frank Illawarra and is not an employee. That has been confirmed by Mr Brooks, Mr Mostyn, and Ms Gong. Mr Brooks has also provided an example of an invoice his business has issued to Knight Frank Illawarra.
Mr Field referred to hearing about payments being made to Ms Trunzo by Knight Frank Illawarra. Even if that is correct, that would not establish Ms Trunzo was an employee of Knight Frank Illawarra. I accept the evidence of Mr Mostyn, Ms Trunzo, and Ms Gong that Ms Trunzo has never been an employee of Knight Frank Illawarra.
Given I have determined Mr Brooks and Ms Trunzo were not employed by Knight Frank Illawarra on 16 August 2024, I find that Knight Frank Illawarra had 14 employees when Mr Field was dismissed.
I am satisfied based on Mr Mostyn’s uncontested evidence that there are no employees of associated entities of Knight Frank Illawarra that need to be considered.
Knight Frank Illawarra was a “small business employer” within the meaning of s.23 of the Fair Work Act 2009 (FW Act) when Mr Field was dismissed on 16 August 2024. Therefore, the minimum period of employment that Mr Field needed to have completed to be eligible to make an unfair dismissal application was 12 months.[1] Mr Field accepts that he was only employed by Knight Frank Illawarra for around 10 months.
Mr Field is not a person protected from unfair dismissal because he had not completed the minimum employment period.[2]
I uphold Knight Frank Illawarra’s jurisdictional objection.
Mr Field’s unfair dismissal application is dismissed.
COMMISSIONER
Appearances:
Mr Field representing himself.
Mr Mostyn representing Knight Frank Illawarra Pty Ltd.
Determinative conference details:
2024.
Sydney (by video via Microsoft Teams).
6 November.
[1] Section 383 of the FW Act.
[2] Section 382(a) of the FW Act.
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