Michelle Hansen v Compendium Australia Pty Ltd T/A Compendium

[2021] FWC 3335

[2021] FWC 3335

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michelle Hansen
v
Compendium Australia Pty Ltd T/A Compendium
(U2020/15503)

COMMISSIONER WILLIAMS PERTH, 9 JUNE 2021

Application for an unfair dismissal remedy - minimum employment period.

[1] This decision concerns an application made by Ms Michelle Hansen (Ms Hansen or the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The application was lodged on 2 December 2020. The respondent is Compendium Australia Pty Ltd T/A Compendium (the Respondent).

[2] The Respondent objects to the application on the grounds that the Applicant’s employment does not meet the minimum employment period, the dismissal was a case of genuine redundancy and the Respondent, as a small business, complied with the Small Business Fair Dismissal Code.

[3] At the hearing of this matter Ms Hansen was represented by a lawyer. The Respondent was self-represented.

[4] Evidence was given by Ms Hansen, the Applicant and by Ms Sharlene Toister (Ms Toister) for the Respondent.

Evidence and factual findings

[5] The Respondent had four employees. I am satisfied that at all relevant times the Respondent employed less than 15 employees and so was a small business employer. 1

[6] The Applicant was employed on 8 October 2019 in a part-time front office role.

[7] The Applicant was employed through Edge Employment Solutions (Edge). Edge is an employment agency that assists persons with disabilities gain employment.

[8] As part of the arrangements with Edge, the Respondent was obliged every week to send them through a copy of Ms Hansen’s payslip. Ms Toister’s understanding was that she was responsible to let Edge know what was happening. 2

[9] Due to a drastic downturn in business due to COVID-19, Ms Toister’s evidence is that on 23 March 2020 she advised Ms Hansen that she was laid off. Ms Toister explains that she advised Ms Hansen’s that her termination would take effect at the end of that week. 3

[10] The same day 23 March 2020 she sent an email to Edge which read as follows,

“Unfortunately today I had to lay Michelle off – I just don’t have the work for her right now because our businesses really taken a hit….”

[11] Subsequently Edge advised Ms Toister that having received her email they re-registered Ms Hansen with Centrelink as they understood she had been laid off and they put Ms Hansen back on their books as a job seeker and actively looked for employment for her. 4

[12] Ms Toister says she herself took over the work of Ms Hansen’s position and has been carrying out those duties ever since. 5

[13] When sometime later the JobKeeper scheme was announced, Ms Toister registered herself and three other employees but did not register Ms Hansen as she had already been laid off.  6

[14] Next in June 2020, there were a few small tasks that Ms Toister needed doing and she spoke to Ms Hansen and offered to re-employ her on a casual basis to do these. Ms Hansen in her prior part-time employment was earning a $25 an hour but as a casual Ms Toister paid her $30 an hour as was agreed. 7

[15] On 11 June 2020, Ms Toister emailed Edge and amongst other things said,

“In regards to Michelle, she’s in at work today. I’ve spoken to her and let her know that although at the moment I don’t have her ‘old job’ available for her (and I have no idea when that will be), I’d like to re-employ her on a casual basis and call her in as needed. She’s really happy with that, so I just wanted to let you know – and also check whether that’s ok?”

[16] On 17 June 2020, Ms Toister sent an email to Edge which attached Ms Hansen’s payslip and stated,

“Michelle is now employed on a casual basis.”

[17] The same day she also emailed Ms Hansen with a copy of her payslip and stated,

“As discussed, I have changed your employment status from Part Time to Casual, and have adjusted your hourly rate to $30 an hour.”

[18] On 18 November 2020, Ms Toister emailed Ms Hansen as a courtesy to let her know that Ms Toister was going to continue to do the front office role and that position would not be available in future.

[19] Ms Toister’s evidence was that at this stage she realised she had not paid Ms Hansen her accrued annual leave back in March 2020 when she had laid her off. She then arranged to pay Ms Hansen this pay in lieu of annual leave owed to her from the part-time role. 8

[20] Under cross-examination by Ms Hansen’s lawyer, Ms Toister was adamant that on 23 March 2020 she advised Ms Hansen that she was being laid off and did not say she was being stood down. 9

[21] Ms Toister denies it was understood that Ms Hansen was to still be employed in the intervening period. 10

[22] Ms Toister pointed out that in the email she sent to Edge that same day, 23 March 2020, she states that she has had to lay Ms Hansen off. 11

[23] Ms Toister agrees that she had on occasion told Ms Hansen that when things picked up in the business in terms of sales she could come back to her job.

[24] Ms Toister openly acknowledges that she is not familiar with “...Fair Work guidelines, with employment guidelines...” and has been working with a HR consultant recently to better understand these. 12

[25] Relevantly the Applicant’s evidence was that on 23 March 2020 Ms Toister phoned her and advised that from 26 March 2020 she was being stood down due to the COVID-19 pandemic and when sales picked up she could come back to work.

[26] The Applicant’s evidence was that she did not say her role was redundant or that her employment was terminated. She was not given a separation certificate. She was not given any notice or outstanding leave entitlements or any indication that those entitlements would be paid.

[27] On 8 June 2020, Ms Toister sent a text message offering her some casual work. Ms Toister told the Applicant her old job was not yet available as things had not yet returned to normal. On 17 June 2020, Ms Toister sent at text message which says she had changed the Applicant’s employment status from part-time to casual.

[28] On 18 November 2020, the Applicant received an email from Ms Toister which read as follows,

“Unfortunately due to the difficult climate we still find ourselves in, after much deliberation I have made the decision to make the position of Front Office Reception/Administration redundant and continue to take on these responsibilities myself.

You have 11.915 hours leave accrued, and I will organise for this to be paid to you.

This decision has left me feeling so sad, as you were such a joy to have in our workplace. Please let me know if you need a reference from me for future employment opportunities, and please feel free to pass on my details if anybody would like to talk to me in person.”

[29] On 2 December 2020, the Applicant made this application.

[30] The Respondent did not cross-examine the Applicant.

[31] Importantly the two witnesses differ as to what was said by Ms Toister to Ms Hansen on the phone on 23 March 2020.

[32] Having considered the evidence of the witnesses I find that on 23 March 2020 Ms Toister told Ms Hansen that she had to lay her off, as is reflected in Ms Toister’s email to Edge the same day. I further find that Ms Toister did not say to Ms Hansen that she was being stood down and there was no understanding that the Applicant was still employed. 13

Submissions

[33] The Respondent objects to the application arguing that the Applicant was dismissed from her employment on 23 March 2020 rather than having been stood down. If that was the case, given the Respondent is a small business, the Applicant has not completed the 12-month minimum employment which is a prerequisite for her to have made this application. Therefore, it is submitted the application should be dismissed by the Commission.

[34] For the Applicant it is submitted that she denies she was told by the Respondent on 23 March 2020 that her employment was to be terminated on 26 March 2020. On 26 March 2020, the Applicant was stood down and consistent with this, no notice was provided to her that her employment was being terminated, no separation certificate was provided and no payment of outstanding leave entitlements was made.

[35] It is submitted on behalf of the Applicant that she was employed from October 2019 through to 18 November 2020. She was stood down between 26 March 2020 and 18 November 2020 and on that basis the Commission has jurisdiction to consider her application for an unfair dismissal remedy.

Consideration

[36] The central issue to be determined in this matter is whether the Applicant was dismissed on 26 March 2020 rather stood down on that date.

[37] Section 386 of the Act prescribes when a person has been dismissed. This is set out below.

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[38] Ms Hansen was dismissed if her employment was terminated on the Respondent’s initiative.

[39] In this case based on the evidence I am satisfied that Ms Toister terminated Ms Hansen’s employment when she told Ms Hansen that she was being laid off and that this would take effect on 26 March 2020.

[40] Ms Hansen was notified of her dismissal on 23 March 2020 and her dismissal took effect on Thursday, 26 March 2020.

[41] Whilst this was communicated to Ms Hansen it is possible she did not understand what Ms Toister had told her about her employment. Misunderstandings and miscommunications in the workplace are far from uncommon. However, I have no doubt the employer in this instance, on its initiative terminated Ms Hansen’s employment.

[42] Section 382 of the Act says that a person is protected from unfair dismissal if they have completed a period of employment with their employer of at least the minimum employment period.

[43] Section 383 of the Act prescribes that if the employer is a small business employer the minimum employment period is one year.

[44] Section 23 of the Act prescribes that a national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

[45] The evidence is that it all times the Respondent employed fewer than 15 employees and so was a small business employer.

[46] Consequently, the minimum employment period applicable to the Applicant was one year.

[47] The Applicant was first employed on 8 October 2019 and her employment ended on 26 March 2020.

[48] The Applicant’s period of continuous service completed with the Respondent in this instance was less than one year. 14

[49] Consequently, the Applicant had not completed the minimum period of employment that was a pre-requisite for her to make this unfair dismissal remedy application.

[50] This application is not properly before the Commission and will be dismissed. An Order [PR730599] to that effect will now be issued.

Appearances:

Mr A. Primeof MDS Legal for the Applicant.
Ms S. Toister on behalf of the Respondent.

Hearing details:

2021.
Perth:
March 11.

Printed by authority of the Commonwealth Government Printer

<PR730598>

 1   Transcript at PN157 and PN158.

 2   Ibid., at PN156.

 3   Exhibit R1 at paragraph 1.

 4   Ibid., at paragraph 3 and Transcript at PN60, PN61, PN127, PN136 and PN137.

 5   Exhibit R1 at paragraph 4.

 6   Ibid., at paragraph 5.

 7   Ibid., at paragraph 6 and Exhibit A1 at paragraph 7.

 8   Transcript at PN104 and PN111.

 9   Ibid., at PN48, PN50, PN51, PN64 and PN65.

 10   Ibid., at PN67.

 11   Ibid., at PN51.

 12   Ibid., at PN126.

 13   Ibid., at PN51 and PN67.

 14 See s.384 of the Fair Work Act 2009 (Cth).