Mark Jurga v SMP Solutions Pty Ltd or X Site Group

[2021] FWC 169

[2021] FWC 169

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mark Jurga
v
SMP Solutions PTY LTD or X Site Group
(U2020/12363)

Andrew DeWitt
v
Xsite Services Pty Ltd
(U2020/12554)

COMMISSIONER CAMBRIDGE SYDNEY, 19 JANUARY 2021

Unfair dismissal applications - jurisdictional objection - s. 382 (a) - whether applicants had completed minimum employment period - whether employer was a small business - s. 23 meaning of small business employer - 15 or more employees - employer not a small business.

[1] This Decision resolves contested jurisdictional objections that were raised in respect of two applications for unfair dismissal remedy that were made pursuant to s. 394 of the Fair Work Act 2009 (the Act).

[2] The first application (U2020/12363) was lodged at Sydney on 15 September 2020. The first application was made by Mark Jurga (Jurga or the first applicant), and the respondent employer in that matter has been identified to be SMP Solutions PTY LTD or X Site Group. Relevantly, SMP SOLUTIONS PTY LTD has been clarified to be a Company withan ABN: 95 139 706 184 (SMP).

[3] The second application (U2020/12554) was lodged at Sydney on 18 September 2020. The second application was made by Andrew DeWitt (DeWitt or the second applicant), and the respondent employer in that matter has been identified to be XSITE SERVICES PTY LTD which has an ABN:16 146 704 618 (Xsite Services). The second applicant has been represented by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).

[4] Both the first and second applications indicated that the employment of the respective applicants commenced in January 2020, and the date that each of the applicants’ dismissals took effect was 28 August 2020. Consequently, both the first and second applications were made within the 21 day time limit prescribed by subsection 394 (2) of the Act. Further, the applications indicated that the applicants had each been employed for more than 6 months but less than 12 months.

[5] On 29 September 2020, J.S. Pinto Solicitors & Barristers provided an employer's response (the SMP Form F3) to the first application. The SMP Form F3 was provided by Peter Bouzanis who was named as the representative for SMP. On 2 October 2020, PADE Consulting Pty Ltd provided an employer's response (the Xsite Services Form F3) to the second application. The Xsite Services Form F3 was provided by Peter Bouzanis who was named as the representative for Xsite Services.

[6] Both the SMP Form F3 and the Xsite Services Form F3 confirmed that the respective applicants had each been employed for between 6 to 12 months. Further, the employers’ responses that were advanced on behalf of both SMP and Xsite Services (collectively the employers) raised jurisdictional objections on the basis that: 1; the respective applicants’ employment did not meet the minimum employment period (the minimum employment period objection), and 2; the employer is a small business and the dismissal of the respective applicants was consistent with the Small Business Fair Dismissal Code (the SBFD Code objection). The SMP Form F3 at paragraph 1.7, stated that the employer had 10 employees at the time the applicant was dismissed. The Xsite Services Form F3 at paragraph 1.7, stated that the employer had 14 employees “including employees of associated entities” at the time the applicant was dismissed.

[7] Both the first and second applications were listed for conciliation proceedings at different times. The respective conciliation proceedings were cancelled upon requests that were recorded to have been made by Mr Bouzanis in each instance, and whereby the employers advised that they did not wish to participate in conciliation and instead sought to have their jurisdictional objections determined. On 14 October 2020, Catanzariti VP of the Fair Work Commission (the Commission) sent letters to the first and second applicants which inter alia, required each of the applicants to provide a statement together with documents or evidence to support their respective claim that they had each served the minimum employment period.

[8] On 22 October 2020, the CEPU, acting for the second applicant, sent a response to Catanzariti VP which inter alia, provided a witness statement of DeWitt dated 22 October 2020 which included 17 names of people who were asserted to be employees of Xsite Services at the time that the second applicant was dismissed. On 25 October 2020, the first applicant sent a response to Catanzariti VP which inter alia, included 16 names of people, excluding himself, who were asserted to be employees of SMP at the time that the first applicant was dismissed.

[9] On 23 October 2020, the second application was allocated to the Commission as currently constituted for determination of the contested issue as to whether DeWitt had completed the minimum employment period. On 25 October 2020, the first application was allocated to the Commission as currently constituted for determination of the contested issue as to whether Jurga had completed the minimum employment period.

[10] On 27 October 2020, the first and second applications were concurrently listed for Pre-Hearing Conference/Conciliation by telephone at 2 pm on 5 November 2020. At 11:28 am on 5 November 2020, Mr Bouzanis sent an email communication to the Commission which attached an Authority to Act dated 2 October 2020, together with a document described as the Respondent’s Written Submissions. The Respondent’s Written Submissions document had been made in respect of both the first and second applications, it was dated 4 November 2020, and signed by Stoyan Kiceec in the capacity of Sole Director/Secretary of Xsite Services.

[11] At the proceedings held on 5 November, the Parties confirmed that the minimum employment period objection would require determination to be made of the number of employees of the employers at the time of the dismissals of the applicants. On 5 November, Mr Bouzanis appeared for the employers together with Ms Sandra Kiceec who was described as a Director of the Xsite Group of Companies. Mr Bouzanis advised that the minimum employment period objection was advanced by and relied upon the Respondent’s Written Submissions dated 4 November 2020, which had been filed and served earlier that day. Consequently, the applicants were Directed to provide any further evidence and submissions in opposition to the employer’s assertion that it was a small business employer at the time of the dismissals of the applicants.

[12] On 19 November 2020, the first applicant provided additional material and associated documentation in opposition to the minimum employment period objection. At 8:42 am on 23 November 2020, the CEPU provided an outline of submissions in reply on behalf of the second applicant, together with an unsigned witness statement of the first applicant dated 20 November 2020. At 9:48 am on 23 November 2020, Mr Bouzanis provided the Commission with a copy of an email that he had sent to the CEPU which relevantly stated; “Xsite Services Pty Ltd objects to the Commission reading the unsigned statement of Mark Jurga.”

[13] As will become apparent, the determination of the minimum employment period objection has been made without any requirement for the Commission to consider the witness statement of Mark Jurga dated 20 November 2020. Accordingly, this Decision has been confined to the determination of the employer’s minimum employment period objection, and it has been made upon examination and consideration of the documentary material that has been filed by the Parties excluding the witness statement in reply of Mark Jurga dated 20 November 2020.

[14] Importantly, the minimum employment period objection has been capable of determination upon consideration of the Respondent’s Written Submissions dated 4 November 2020. The determination of the employers’ minimum employment period objection has involved a requirement to make a finding as to the number of employees of the employers at the time of the dismissals of the applicants for the purposes of any satisfaction of the meaning of small business employer as stipulated by s. 23 of the Act.

The Employers’ Case

[15] The material provided by the employers in support of their minimum employment period objection comprised the Authority to Act dated 2 October 2020, and the Respondent’s Written Submissions document dated 4 November 2020, with attachments. This material contained various factual assertions together with supporting documentary annexures, and submissions.

[16] In summary, the materials provided by the employers asserted that at the time of the dismissals of the applicants, the employers and any associated entities of the employers, employed 14 named individuals who included all full-time, part-time and casual employees who were employed on a regular basis. Consequently, according to the Respondent’s Written Submissions, the employers were small business employers pursuant to the Act.

The Applicants’ Case

[17] The first applicant sought to rely upon the response material that he provided to Catanzariti VP on 25 October 2020, and his further response material provided on 19 November 2020, and additionally, the CEPU unsuccessfully sought to introduce his witness statement in reply of 20 November 2020. The second applicant advanced his opposition to the employers’ minimum employment period objection with reliance upon the witness statement of DeWitt dated 22 October 2020, together with an Outline of Submissions document provided by the CEPU and dated 20 November 2020.

[18] The various materials provided by and on behalf of the first and second applicants have asserted that at the time of the dismissals of the applicants, the employers had 15 or more employees and were not small business employers. As the consideration of these matters will reveal, it has been unnecessary to make any detailed recorded examination of the material provided by the first and second applicants in opposition to the employers’ minimum employment period objection.

Consideration

[19] The minimum employment period objection taken by the employers in this instance has required determination of the issue of whether the applicants were each a person protected from unfair dismissal. This issue arises from subsection 382 (a) of the Act.

[20] Section 382 of the Act is in the following terms:

“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.”

[21] Section 383 of the Act provides a meaning of minimum employment period and is in the following terms:

“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] In this case there was no dispute that the applicants’ periods of employment were more than 6 months but less than 12 months. Therefore, the determination of the minimum employment period objection has been confined to a determination as to whether the employers were small business employers at the time that the applicants have asserted that they were unfairly dismissed, 28 August 2020.

[23] Section 23 of the Act provides a meaning of small business employer and is in the following terms:

“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.”

[24] The material that was provided by the employers in the form of the Respondent’s Written Submissions dated 4 November 2020, has provided an appropriate presentation of the number of employees of the employers as at 28 August 2020. There was no dispute that SMP and Xsite Services were associated entities that were to be taken as one entity in accordance with subsection 23 (3) of the Act. Further it is clear that subsection 23 (1) of the Act establishes that if 15 or more individuals are identified as employees of the entity, the employers are not small business employers.

[25] The following extract is taken from the Respondent’s Written Submissions dated 4 November 2020:

“The Respondent concedes that the Applicants were dismissed on 28 August 2020.

The Respondent further concedes that the following persons were employed by the Respondent or the Respondent’s associated entities, either on a full-time or casual basis on 28 August 2020 or were dismissed by the Respondent or the Respondent’s associated entities on 28 August 2020:

•  Andrew DeWitt

•  Jose Guavera

•  Melvin Mediana

•  Richard Street

•  Luca Turccolo

•  Sandra Kiceec

•  Stoyan Kiceec

•  Paul Kiceec

•  Suzannah Kiceec

•  Alex Souris

•  David Moorefield

•  Dennis Van Ham

•  Damian Arteaga

•  Chaz Petza

The Respondent contends that the Respondent and/or the Respondent’s associated entities employed no other persons as of 28 August 2020.”

[26] Somewhat unfortunately for the employers, the list of names included in the Respondent’s Written Submissions dated 4 November 2020, overlooked the first applicant, Mark Jurga. When the first applicant is added to the list of names of employees identified by the employers there are 15 identified individuals.

[27] On the evidence that has been provided by the Parties, the Commission is satisfied to make a finding that as at the date of the applicants’ alleged unfair dismissals, 28 August 2020, the employers had at least 15 employees. Therefore, by virtue of the operation of subsection 23 (3) of the Act, the employers had at least 15 employees at the time of the dismissals of the first and second applicants.

[28] Consequently, for the purposes of s. 23 of the Act, at the time of the alleged unfair dismissals of the applicants, 28 August 2020, the employers were not small business employers and as the applicants had completed the relevant minimum employment period of 6 months, each of the applicants was a person protected from unfair dismissal. The minimum employment period objection raised by the employers must be rejected, the SBFD Code objection must fail, and the applications for unfair dismissal remedy must be permitted to proceed.

[29] The matters will be listed for further proceedings by way of Mention and Directions fixed for 12:00 noon on 11 February 2021.

COMMISSIONER

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