Matthew Robbins v Oscars of Essendon Pty Ltd T/A Oscars of Essendon

[2013] FWC 5401

[2013] FWC 5401

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Robbins
v
Oscars of Essendon Pty Ltd T/A Oscars of Essendon
(U2013/7410)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 6 AUGUST 2013

Application for Relief from Unfair Dismissal - Jurisdictional Objection - Small Business - Jurisdictional Objection dismissed..

[1] Mr Matthew Robbins (the Applicant) was employed by Oscar’s of Essendon Pty Ltd (the Respondent) from 5 August 2012 until his employment was terminated on 21 February 2013.

[2] The Applicant lodged an application for relief pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging that he was unfairly dismissed.

[3] At the hearing of this matter the Applicant appeared for himself and Mr John Sampson, the director of the Respondent appeared for the Respondent.

[4] The Respondent objected to the application on the grounds that it was a small business 1 and the Applicant had not been employed for 12 months.2

[5] The Respondent submitted that it employed, at the time the Applicant’s employment was terminated, 14 employees.

[6] The Applicant contended that there were five additional employees of the Respondent not included on the Respondent’s list of employees namely;

● Mr John Sampson;

● Ms Ann-Marie Carmichael;

● Ms Vicki Cox;

● Mr Matthew Cooney; and

● Ms Amy Jane Daly.

[7] The Applicant accepted that he had no evidentiary basis for his allegation that Mr Sampson, the Respondent’s director, was an employee of the Respondent.

[8] Ms Ann-Marie Carmichael provided a witness statement to the Fair Work Commission but as she was not available to be cross examined her witness statement was not tendered. However the Applicant accepted that he had no evidentiary basis for his allegation that she was an employee of the Respondent.

[9] The Applicant accepted that Mr Matthew Cooney worked one shift for the Respondent. Mr David Liszt, the manager of the business, gave uncontested evidence to this effect. The Applicant accepted that Mr Cooney was not employed on a regular and systematic basis.

[10] The Applicant submitted that Ms Vicki Cox was still on the books of the Respondent at the time of the termination of his employment. Ms Cox prepared a statement for these proceedings but as she was not available to be cross examined, it was not tendered. However, Mr Liszt gave evidence that Ms Cox last worked with the Respondent on 20 December 2012. The Applicant accepted that Ms Cox took up employment with another employer and was not available after December 2012 for regular shifts. However he submitted that she should be included in the count of employees as she had been approached after December 2012 to work occasional shifts.

[11] Ms Amy Jane Daly gave evidence that she commenced employment with the Respondent in September 2012. After one week’s training, she left on holidays but returned to work in October 2012. In December 2012, she advised Mr Liszt that she wished to take holidays in February 2013. It was her evidence that she was overseas in February 2013 and that she returned to work after her holidays. She did not consider that her employment had been terminated. It was her view that she was on leave without pay.

[12] Mr Liszt gave evidence that he had a conversation with Ms Daly prior to her going on holidays in February, in which he made it clear to Ms Daly that by going on holidays her employment would end but she should call them on her return to see if there was work available. Ms Daly did not recall this conversation.

[13] Ms Daly accepted that the Respondent employed someone to do her work while she was away. Ms Daly in fact returned to work after her holidays and continued to work for the Respondent on a regular and systematic basis until she again went overseas in June 2013. At that time she was told by Mr Sampson and Mr Liszt that her employment would come to an end but that she could call them upon her return and she would be reemployed if there was work available. It was put to Ms Daly that, at that meeting in June, she agreed that this is what happened in February 2013. Ms Daly could not recall that part of the conversation.

[14] The Respondent submitted that at the date of the termination of the Applicant’s employment Ms Daly was not in fact employed by the Respondent.

[15] The Applicant tended rosters for February 2013. Those roster included Ms Daly. For each day the notation “n/a” appeared next to Ms Daly’s name. There was also a notation that she is not available until “10 March”. Mr Liszt said that this was a mistake However, if Ms Daly had simply been inadvertently left on the roster there would have been no notation as to her expected date of return.

[16] I do not accept that Ms Daly’s employment was terminated in February 2013. She advised her manager in December 2012 that she wanted to take leave in February 2013. Unlike what occurred in June 2013 where Mr Sampson and Mr Listz make if clear that her employment would be terminated, I do not accept that Ms Daly was told that her employment was terminated. While I accept that she understood that another employee would have to be employed to work while she was away, that was no different to what occurred when she took leave at the commencement of her employment. I accept Ms Daley’s evidence that she was on leave without pay. She had a legitimate expectation that upon her return from holidays she would again be offered shifts by the Respondent.

[17] The Applicant also submitted that Mr Sampson was a director of another company which had employees. No evidence was called and no submissions made to support the contention that the other company was an associated entity 3 and that the employees of this company should count in determining the number of employees of the Respondent.

[18] The Respondent accepted that it had 14 employees who were either full time or regular and systematic casual employees.

[19] There is no evidence to support a conclusion that Mr Sampson or Ms Carmichael are employees of the Respondent. Further, even though Ms Cox may have been able to be called on to work an occasional shift from December 2012, she was not a regular and systematic casual when the Applicant’s employment was terminated. Mr Cooney having worked one shift was never employed as a regular and systematic casual.

[20] However at the time of the termination of the Applicant’s employment, Ms Daly was employed as a casual employee by the Respondent and her employment was regular and systematic.

[21] If a casual employee with the consent of his or her employer takes a fixed period of time off work she or he does not cease to be employed on a regular and systematic basis. While I accept that Ms Daly knew that another casual employee had been employed to do her work that by itself does not mean that her employment was terminated.

[22] I therefore conclude that the Respondent had 15 employees at the date of the termination of the Applicant’s employment and therefore the jurisdictional objection is dismissed. The Applicant is protected from unfair dismissal and the merits of the Applicant can now be heard and determined.

DEPUTY PRESIDENT

Appearances:

Mr M Robbins - Applicant

Mr J Sampson - Respondent

Hearing details:

2013

Melbourne

August 5

 1   See section 23

 2   See section 382 and 383

 3 See section 23(3) and s50AAA of the Corporations Act 2001

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