Michelle Thomas v Jeannette Anne Crawford

[2014] FWC 8452

[2014] FWC 8452

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michelle Thomas
v
Jeannette Anne Crawford
(U2014/11444)

DEPUTY PRESIDENT MCCARTHY PERTH, 28 NOVEMBER 2014

Application for relief from unfair dismissal - jurisdictional objection.

[1] This matter concerns an application lodged by Ms Michelle Thomas (the Applicant) who lodged an application for an Unfair Dismissal Remedy (the Application). The Application named “ENJO” as the Respondent and Ms Jeannette Crawford as the contact person for the Respondent.

[2] An Employer Response to Unfair Dismissal Application (the Employer Response) was lodged by Ms Crawford. It objected to the Application on three jurisdictional grounds being:

● the Applicant was employed by Ms Crawford who is not a national system employer;
● the Applicant does not meet the minimum employment period; and
● the dismissal was a case of a genuine redundancy.

[3] More specifically Ms Crawford stated:

“The Applicant has listed ENJO as her employer which is not correct. The Applicant is employed by Jeannette Crawford. Jeannette Crawford is not an employee of ENJO. The Applicant was employed by Jeannette Crawford in her individual and personal capacity.

The Respondent, Jeannette Crawford, is a sole trader and not a National System Employer under the definition of section 14 of the Act.

The Applicant is the only employee of Jeannette Crawford who, if she had been a National System Employer, would be a Small Business. The Applicant had been employed by Jeannette Crawford for less than 12 months. Had Jeannette Crawford been a National system Employer, the Respondent would be protected from an unfair dismissal under section 382 of the Act.

If Jeannette Crawford had been a National System Employer, the dismissal would not have been an unfair dismissal under section 385 of the Act as it was a genuine redundancy as defined in section 389 of the Act. Jeannette Crawford complied with the obligations of consultation, and provided greater than the minimum notice period.”

[4] I issued Directions on 27 August 2014 which required submissions and supporting material to be provided by the Respondent and also for the Applicant to provide any submissions or supporting material.

[5] On 16 September 2014, Ms Crawford provided material including a witness statement and supporting documentation that:

● Ms Crawford employed the Applicant.

● Ms Crawford is not a national system employer.

● Ms Crawford, even if she were a national system employer she would be a small business employer.

● The Applicant was employed by Ms Crawford for less than 12 months.

[6] A contract in the form of an Individual Flexibility Agreement identified the parties to the agreement as Ms Crawford and the Applicant. A printout showing an Australian Business Number for Ms Crawford was produced which also identified Ms Jeannette Anne Crawford as an individual/sole trader registered from 1 July 2000. The statement provided by Ms Crawford stated that:

“12. As a result of some very successful sales within my business and amongst the other ENJOprenuers whom 1 support, ENJO provided me with additional funding to employ a person for sales administrative support.

13. The plans for this occurred in around October or November 2013.

14. I Identified Michelle Thomas, as a suitable candidate.

15. As part of the process for selection, Michelle Thomas was interviewed by some ENJO staff at ENJO offices at Booragoon.

16. This assistance was provided to me by ENJO as part of their overall support for me although the decision on who to employ was entirely mine.

17. ENJO also provided me with a template contract that I could use for the contract of employment with Michelle Thomas.

18. I offered Michelle Thomas the position of Sales Administrator which she accepted.

19. I provided her with a contract which she signed and returned to me. Attached and marked as Annexure C is a copy of her signed employment contract.

20. Michelle Thomas commenced employment for me on 18 November 2013.

21. I operate my business from home, although I spend a lot of time away from my home office doing demonstrations for ENJO products.

22. Michelle Thomas worked for me from my home.

23. Michelle Thomas was my only employee.”

[7] The Applicant provided a statement which stated:

● she had been interviewed at ENJO head office for a Sales Administration role supporting Ms Crawford;
● the hours of work the Applicant worked; and
● entitlements she believed she was due.

[8] I wrote to the Applicant again on 17 October 2014 and requested that she address the jurisdictional objections raised by Ms Crawford. The Applicant responded on 24 October 2014 stating that:

● Ms Crawford has shown her an email that stated that ENJO would no longer be prepared to pay for her services;

● “When I was in her employ ...” trying to establish Ms Crawford did not want ENJO to know of some of the work she was doing; and

● There were monthly emails from ENJO requesting information in order that Ms Crawford could be reimbursed for the Applicant’s salary.

[9] The majority of the further information provided by the Applicant dealt with issues surrounding her dismissal and redundancy.

[10] The detail the Applicant appears to rely on does not adequately address two of the primary issues here, namely whether she was employed by Ms Crawford and, if she was, whether she completed the minimum qualifying period. Indeed some of the information provided confirms the nature of her relationship with Ms Crawford and of that between Ms Crawford and ENJO. For example the Applicant states “when I was in her [Ms Crawford’s] employ”. Further she states that ENJO needed to get details to “reimburse” Ms Crawford for her salary. She also stated that Ms Crawford employed her on duties other than ENJO duties. Each of these matters confirms rather than conflicts with the nature of the relationship between the Applicant and Ms Crawford.

[11] Furthermore, the Applicant has provided no material whatsoever that disputes the nature of the evidence of Ms Crawford repeated above in paragraph [6] nor the contract produced which clearly shows Ms Crawford as the employer.

[12] Arising from the above I have decided to dismiss the Application as I find it has no reasonable prospects of success. It is abundantly clear that the employer was Ms Crawford and thus not a national system employer, and the Applicant has provided no material that detracts from that, nor is there any indication or information, whatsoever, that suggests that she could provide that information or indeed that the employer was someone other than Ms Crawford.

[13] Pursuant to s.587(1) of the Fair Work Act 2009 the application is dismissed.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 24 October 2014.

Respondent, 16 September 2014.

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