Mei Tian Ep Clech v The Trustee for Czarina Fashion Group Trust

[2022] FWC 577

[2022] FWC 577

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mei Tian Ep Clech
v

The Trustee For Czarina Fashion Group Trust

(U2021/10274)

COMMISSIONER MCKINNON SYDNEY, 17 MARCH 2022

Application for unfair dismissal remedy – jurisdictional objection – minimum employment period – whether small business employer – application dismissed.

1. Ms Mei Tian Ep Clech was employed as a Wholesale Account Manager by the Trustee for Czarina Fashion Group Trust (Czarina), a retail clothing business. She was employed from 6 April 2021 until her dismissal on 1 November 2021. On 15 November 2021, Ms Clech applied for an unfair dismissal remedy. She also sought compensation for claimed underpayment of employment entitlements.

1. Czarina objected to the application, asserting that it was a small business employer at the time of dismissal. On this basis, it said that Ms Clech did not meet the minimum employment period of one year and was not a person protected from unfair dismissal.

1. The actual period of employment was not in dispute. It was also not in dispute that Czarina had an associated entity, The Trustee for Sanjana Fashion Trust (Sanjana). I refer to the businesses together as “the business”. The question for decision was whether the business was a small business employer at the time of dismissal on 1 November 2021.

1. On 14 March 2022, I found that the business was a small business employer at the relevant time and dismissed the application by Ms Clech. This is an edited version of the decision given orally at the hearing.

How many employees did Czarina have?

1. There were 16 individuals named by Ms Clech as potential employees of Czarina and Sanjana. There was no dispute that the following individuals were employees of the business:

1. Alexander Ben

2. Imogen Reece

3. Ludmila Svetlov

4. Ms Clech

5. Mingmin Lu, also known as Zedd Luk

6. Shivom Juneja

7. Koviljka Markanovic

8. Kristine Ward

9. Liza Odonoghue

10. At PN119 and PN141 of the transcript respectively, I made the following findings:

10.Daiwei Yin, also known as Peter

“On the basis of the email provided by Ms Clech, I find that Daiwei Yin was employed at the time of dismissal on 1 November 2021.”

11.Nidhi Bagadia

“I'm prepared to accept that she's an employee of the business, because she's carrying on work for the benefit of the business and has responsibilities.  All I have from the company about her status is a denial that she drew wages, without any evidence to demonstrate the nature of her relationship with the business. So I find on balance that she was an employee.”

1. At PN127 and PN134 of the transcript respectively, I made the following findings:

12.Juliana de Cass Ribeiro

“I find based on the invoices provided that Juliana was a contractor.”

13.Akira Amitayus

“Based on the invoice evidence, and having heard from you both, I am satisfied that Akira is a freelance contractor and not an employee.”

1. At PN250, I made a finding in relation to another potential employee named Jody:

“The other Jody, I find that allegation not established because there's no evidence to satisfy me one way or the other that there's another Jody to Jodie Tillia.”

1. Also at PN250 of the transcript, I made findings about the number of employees employed by the business, including two further “potential employees” identified as Natalie Weinhold and Elvira Anger:

“So that gives us a total of 11 employees and two potential employees.  Even if those two additional people are employees the number in total is 13.  That is not enough to change the nature of the business from a small business employer to an employer that is not a small business.

So I find that there were 11 employees of the business, potentially two more employees but overall that the business of Czarina Trust and Sanjana Trust had together less than 15 employees.  Given that finding, Mr Mahat, and despite my earlier comments about providing further information I don't require you to provide that information because it wouldn't change the outcome.  It wouldn't mean that the number increased to 15 or more.  So those are my findings in relation to the number of employees and such.”

Conclusion and disposition

1. At PN254-PN255 of the transcript, I made the following findings and observations, speaking directly to Ms Clech:

“Given my finding that Czarina was a small business employer I now must make the finding that you didn't meet the minimum employment period of 12 months in relation to your employment with Czarina.  That means you are not protected from unfair dismissal under the current rules and that the application must be dismissed.

But I would say this as well.  Just because you are not eligible for unfair dismissal does not mean you cannot make a claim for your underpayment of wages.  If you are still owed money by the company you can seek to recover that money.  You can make a complaint to the Fair Work Ombudsman or you can make a claim under the small claims procedure and you have a number of options.  You can make the claim in the New South Wales Local Court, in the Chief Industrial Magistrate's Court or the Federal Circuit Court.”

1. At PN257 of the transcript, I made a recommendation to the business:

“Mr Mahat if there are entitlements due to Ms Clech I would strongly recommend that you audit her employment, undertake a review and if there are moneys owed that they be paid within seven days.”

1. At PN259 of the transcript, I dismissed the application.

COMMISSIONER

Appearances:

M Clech for herself.
S Mahat on behalf of Czarina Fashion Group Trust.

Hearing details:

2022.
Sydney (by video):
March 14.
Printed by authority of the Commonwealth Government Printer

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