Miss Kelly Petts v Jaibendam Pty Ltd T/A At the Top of the Town

[2013] FWC 638

[2013] FWC 638

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Miss Kelly Petts
v
Jaibendam Pty Ltd T/A At The Top of the Town
(U2012/13052)

COMMISSIONER CRIBB MELBOURNE, 29 JANUARY 2013

Application for unfair dismissal remedy – jurisdiction - small business employer- minimum employment period - objection upheld.

[1] Ms Kelly Petts (the applicant) has lodged an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). It is alleged that her dismissal by Jaibendam Pty Ltd T/A At The Top of The Town (the respondent or the company or At the Top of the Town) was harsh, unjust or unreasonable.

[2] The respondent has objected to Ms Petts’ application on the ground that the employer is a small business employer and that the applicant did not have the requisite one years’ service at the relevant time. Further, the respondent’s view was that Ms Petts had, in effect, resigned when she went off to have her baby and that she had not been dismissed by the respondent.

[3] The company also objected to Ms Petts being granted an extension of time to allow for proper lodgement of her application. The application was received by Fair Work Australia on 7 September 2012. This is outside the prescribed 14 day period which ended on Monday 3 September 2012 based on Ms Petts’ contention that she was dismissed on 20 August 2012.

[4] A formal hearing was held on Friday 23 November 2012 to deal firstly with the company’s jurisdictional objection. The extension of time application by Ms Petts would be heard after that, if required.

Small Business Employer

[5] During the hearing, the issue arose as to whether or not the respondent was a small business employer. 1 Directions were issued to the company to provide evidence of the number of employees as at 25 March 2012 - the date Ms Petts left to have her baby. Ms Petts was given the opportunity to respond to this material.

[6] Mr McDowall, on behalf of the company, filed a statutory declaration on 29 November 2012 and Ms Petts’ response was filed on 7 December 2012. As a result of Ms Petts’ submissions, the Tribunal sought clarification from Mr McDowall on 12 December 2012. Mr McDowall responded by email on 20 December 2012.

[7] The initial material provided by Mr McDowall indicated that, as at March 2012, there were five full-time employees, five casual employees with an expectation of ongoing employment and one employee who was in training to replace one of the full-time employees. This comes to a total of 11 employees. There were also four casuals with no expectation of ongoing employment. 2

[8] For her part, Ms Petts queried as to whether three of the casuals with no expectation of ongoing employment had no such expectation. This was on the basis that these employees worked the same shifts as the five casuals with expectations of ongoing employment. Ms Petts also asked if Mr McDowall, his wife and Mr Murdock were employees. 3

[9] Mr McDowall’s reply was that neither he nor his wife nor Mr Murdock were employees of the company. Further, he outlined the circumstances of the three employees raised by Ms Petts. He indicated that, for different reasons, none of the three employees had any expectation of ongoing employment. 4

[10] Section 23 (1) of the Fair Work Act 2009 defines “small business employer” as:

“A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.”

[11] On the basis of the material before me, I am satisfied that there were 11 employees at the time Ms Petts left to have her baby. Therefore, I find that At the Top of the Town is a small business employer as set out in section 23 of the Fair Work Act 2009.

Minimum employment period

[12] A preliminary issue arose with respect to the commencement date of Ms Petts’ employment with the company. Ms Petts and Mr McDowall held different views as to when Ms Petts commenced employment. Ms Petts believed that she had begun work with At the Top of the Town approximately 6 years ago. 5 Mr McDowall stated that he became the owner of the business on 18 April 2011 and that Ms Petts’ employment commenced on that date. He said that the previous owner had paid out all of the employees’ accrued entitlements.6 It was confirmed by Ms Petts that her entitlements had been paid out by the previous owner.7

[13] On this basis, during the hearing, the Tribunal found that the date Ms Petts commenced employment with the respondent was 18 April 2011. 8

[14] Having established the commencement date of Ms Petts’ employment with the company, the next matter to be determined is whether Ms Petts had been employed by the respondent for one year as at the time of her dismissal (section 383 of the Act). The answer to this question turns on whether or not the period between March 2012 and August 2012 is counted as part of Ms Petts’ period of employment with the respondent.

[15] It was common ground that Ms Petts left work in March 2012 to have her baby. It was also agreed that, at that point in time, Ms Petts’ had 11 months’ service with the company. What is not agreed is whether or not Ms Petts was on parental leave until she sought to return to work towards the end of August 2012 and, therefore, whether this period counts as service for the ‘minimum employment period’.

[16] The Tribunal is required to make a finding about whether the period from March 2012 to August 2012 counts as service for the "minimum employment period" with a small business employer (one year - section 383 (3) (b) of the Act). If it is counted, Ms Petts would have had more than one years’ service with the company at the time her employment ended. Therefore, the respondent’s jurisdictional objection would be dismissed. If this period is not included, Ms Petts would only have had 11 months’ service with the respondent which is less than the requisite one year.

[17] Section 382 (1) of the Act provides that a person is protected from unfair dismissal if:

“(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....”

[18] "Minimum employment period" is defined in section 383 (b) of the Act as:

“(b) if the employer is a small business employer - one year ending at that time.”

[19] Section 384 (1) of the Act defines “period of employment” as:

“An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.”

[20] The meaning of “service” is set out in section 22 (1) of the Act as:

“A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer but does not include any period (an excluded period) that does not count as service because of subsection (2).”

[21] A number of periods do not count as “service”, as set out in section 22(2) of the Act:

“(a) any period of unauthorised absence;

(b) any period of unpaid leave or unpaid authorised absence.....”

[22] Further, section 22 (3) of the Act states that:

“An excluded period does not break a national system employee’s continuous service with his or her national system employer but does not count towards the length of the employee’s continuous service.”

[23] As Ms Petts had less than 12 months’ employment with the company when she left to have her baby, she was not entitled under the National Employment Standards to take parental leave in March 2012. It is noted that the respondent did not advise Ms Petts that this was the situation despite being sent an email by Ms Petts setting out the dates of her parental leave. 9

[24] Therefore, I find that the period from March 2012 to August 2012 was a period of unpaid leave or unpaid authorised absence (section 22(2)(b)). This period, therefore, does not count towards the length of Ms Petts’ service with the respondent (section 22(2) and (3)).

[25] Accordingly, as at 20 August 2012, Ms Petts did not have a period of one year’s employment with the respondent. Therefore, Ms Petts is unable to make an application under section 394 of the Act for an unfair dismissal remedy.

[26] The respondent’s jurisdictional objection is upheld and the application is dismissed. An order 10 to this effect will be issued separately.

COMMISSIONER

Appearances:

Ms Kelly Petts representing himself

Mr McDowell from the respondent

Hearing details:

2012.

Melbourne:

November 23.

Further information provided:

Respondent, 29 November 2012

Applicant, 7 December 2012

Respondent, 20 December 2012

 1   Transcript PN 87 - 119

 2   Statutory declaration by Mr McDowall dated 29 November 2012

 3   Ms Petts’ response - email dated 7 December 2012

 4   Email from Mr McDowall dated 20 December 2012

 5   Witness statement of Ms Petts dated 9 November 2012 at paragraph 1

 6   Statement by Mr McDowall dated 16 November 2012 and Transcript PN 16

 7   Transcript PN 25 - 28 and 39 - 40

 8   Ibid PN 25 - 44 and 127

 9   Ibid PN 48 - 56 and 78 - 82

 10   PR533595

Printed by authority of the Commonwealth Government Printer

<Price code A, PR533589>