Miss Kayla Rigby v Supercare Cleaning Solutions Pty Ltd
[2022] FWC 3383
•30 DECEMBER 2022
| [2022] FWC 3383 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Miss Kayla Rigby
v
Supercare Cleaning Solutions Pty Ltd
(U2022/10121)
| DEPUTY PRESIDENT LAKE | BRISBANE, 30 DECEMBER 2022 |
Application for an unfair dismissal remedy – jurisdictional objection – minimum employment period – Small Business Fair Dismissal Code – application dismissed.
This decision concerns an application by Miss Kayla Rigby (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant seeks a remedy, claiming that her dismissal from his employment with Supercare Cleaning Solutions Pty Ltd (the Respondent) was harsh, unjust and unreasonable. The Applicant’s employment with the Respondent commenced on 23 February 2022, and her employment was terminated on 26 September 2022. The Applicant was employed for a period of 7 months and 3 days.
In its Form F3 – Employer Response, the Respondent raised a number of jurisdictional objections on the grounds that:
· the Applicant’s employment did not meet the minimum employment period; and
· the Respondent is a small business employer and it complied with the Small Business Fair Dismissal Code.
The matter was allocated to my Chambers and I issued directions for filing of materials addressing the jurisdictional objections on the grounds that the Applicant has not met the minimum employment period and the Respondent’s contention that they are a small business employer and complied with the Small Business Fair Dismissal Code. This decision deals with those matters only.
Legislation
Section 382 of the Act provides:
“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.”
The meaning of “minimum employment period” is relevantly provided at s.383 of the Act as follows:
“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.”
Small business employer is defined at s.23 of the Act:
“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, the employee is a regular casual employee of the employer 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.”
As provided in s.23(3) for the purposes of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity. Associated entities are defined in s.12 as having the meaning given by s.50AAA of the Corporations Act 2001, which provides as follows:
“50AAA Associated entities
(1) One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.
(2) This subsection is satisfied if the associate and the principal are related bodies corporate.
(3) This subsection is satisfied if the principal controls the associate.
(4) This subsection is satisfied if:
(a) the associate controls the principal; and
(b) the operations, resources or affairs of the principal are material to the associate.
(5) This subsection is satisfied if:
(a) the associate has a qualifying investment (see subsection (8)) in the principal; and
(b) the associate has significant influence over the principal; and
(c) the interest is material to the associate.
(6) This subsection is satisfied if:
(a) the principal has a qualifying investment (see subsection (8)) in the associate; and
(b) the principal has significant influence over the associate; and
(c) the interest is material to the principal.
(7) This subsection is satisfied if:
(a) an entity (the third entity) controls both the principal and the associate; and
(b) the operations, resources or affairs of the principal and the associate are both material to the third entity.
(8) For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:
(a) has an asset that is an investment in the second entity; or
(b) has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.”
Hearing
The Jurisdictional Hearing was conducted by telephone on 15 December 2022.
The Applicant acted for herself and the Respondent did not appear.
Summary of the evidence and submissions
Respondent’s submissions and evidence
The Respondent submitted that it is a small business employer and complied with the Small Business Fair Dismissal Code, and further stated that the Applicant had not completed the required minimum employment period which for a small business is a period of 12 months in its Form F3 – Employer Response.
As to whether it was a small business at the time the Applicant’s employment was terminated, the Respondent provided Xero timesheet details for the period of 1 January 2022 to 22 December 2022. The Respondent had 14 employees listed on its Payroll Employee Summary.
Applicant’s submissions and evidence
The Applicant did not submit any further material besides her Form F2 and attachments.
The Applicant submits that she worked with the Respondent on 23 February 2022 and signed an employment contract on 10 March 2022. The Applicant had arranged time off during the school holidays which was agreed with her employer. During her time off, the Applicant submits that the Respondent would not extend her employment past the probationary period.
The Applicant stated that the Respondent employed “30-40 employees” during her time working with the Respondent in her examination in chief. The Applicant obtains this estimate from the scheduling application used which lists all the employee’s names. She acknowledges that she is aware that some of the employees may be contractors and may not be employees. She also acknowledges that she does not know what the other employees’ arrangements are.
Consideration
The Respondent provided evidence listing a total of 14 employees along with their individual payslips from 1 January 2022 to 22 December 2022, which not all employees were working throughout the year.
The Applicant did not identify any other employees in the business that would increase the number beyond 14.
The Respondent has established that the business has less than 15 employees and therefore is defined under the Act as a small business. In this case, the minimum employment period is 12 months and the Applicant had been employed for a total period of seven months and one week taking into account the fact that the Applicant started work with the Respondent before the contracted date.
Consequently, the Applicant had not completed the minimum employment period.
Accordingly, I find that the jurisdictional objection is upheld and order that the Application be dismissed.
DEPUTY PRESIDENT
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