Miss Vanessa Lacey v Nesrine Armanious and Sam Aziz T/A Ava Maria Dental

[2012] FWA 4198

[2012] FWA 4198

FAIR WORK AUSTRALIA

DECISION

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

Miss Vanessa Lacey
v
Nesrine Armanious and Sam Aziz T/A Ava Maria Dental
(U2012/5589)

COMMISSIONER JONES MELBOURNE, 21 MAY 2012

Jurisdictional Objection - small business - minimum period of employment

Introduction

[1] On 1 March 2012 an application was lodged under s.394 of the Fair Work Act 2009 (the Act) for relief from unfair dismissal by Ms Vanessa Lacey (the Applicant).

[2] In its Response to the Application for Unfair Dismissal Remedy (Form F3), Nesrine Armanious and Sam Aziz T/A Ava Maria Dental, (the Respondent) advised that it had jurisdictional objections; namely that it was a small business and the Applicant had worked less than one year. The Respondent also raised an objection that the Applicant was on a traineeship. This decision deals with the Respondent’s objection that the Applicant has not served the required minimum employment period and is therefore not a person protected from unfair dismissal.

[3] The relevant sections of the Act for the purposes of the Respondent’s jurisdictional objections are ss.22, 23, 382, 383 and 384 of the Act.

[4] Section 382 of the Act relevantly 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.

Section 383 of the Act provides:

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.

Section 384 of the Act relatively provides:

384 Period of employment

(1) 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.

.....................................

Section 22 of the Act relevantly provides:

22 Meanings of service and continuous service

General meaning

(1) 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).

(2) The following periods do not count as service:

(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or
(ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or
(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) 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.
(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.

Section 23 of the Act relevantly provides:

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.

.......................................................

Background

[5] In its submissions filed in compliance with directions issued by Fair Work Australia (FWA), the Respondent stated:

“Sam Aziz and Nesrine Armanious (the employers) and trustees of the Aziz Group Family Trust T/A Ava Maria Dental, dispute the jurisdiction of Fair Work Australia to consider unfair dismissal in this matter due to the following two reasons:

● We are a small employer of less than 5 employees; and

● Ms Lacey was employed by us for less than 12 months at the time of her dismissal.”

[6] In her application for Unfair Dismissal Remedy (Form F2), the Applicant recorded that she commenced employment with the Respondent on “06/2011” and that she was notified of her dismissal on 20 February 2012 and the dismissal took effect on 18 February 2012. The Respondent, in its Form F3, recorded that the Applicant was employed from 20 July 2011 to 18 February 2012.

[7] The Applicant was requested by correspondence to advise whether she agreed or disagreed with the Respondent’s submission set out at [5] above.

[8] By email to my Chambers, dated 9 May 2012, the Applicant responded as follows:

“I agree with these statements, I was not working there for over a year.

At the time of my ‘dismissal’ there were only two employees including myself, although prior to this there were 4 employees including myself and 3 dentists one of which is considered a contractor, the other two I not quite sure.”

[9] Subsequently, both the Applicant and the Respondent were requested to advise whether they agreed to the Respondent’s jurisdictional objection being determined on the papers without the necessity of a hearing. Both the Applicant and the Respondent advised my Chambers that they consented to the jurisdictional objection being determined on the papers 1.

Consideration

[10] Having regard to the documentary material, Submissions and correspondence referred to at [5], [6] and [8] above I am satisfied that:

● The Respondent employed fewer than 15 employees at the time of the Applicant’s dismissal and is therefore a small business within the meaning of s.23 of the Act; and

● The Applicant’s period of employment with the Respondent was less than 12 months.

[11] Consequently, I am satisfied that the Applicant has not served the requisite minimum employment period (being 12 months) under s.383 of the Act and is, therefore, not a person who is protected from unfair dismissal under s.394 of the Act.

[12] The Applicant’s application for relief from unfair dismissal is dismissed. An Order to this effect will be issued today.

COMMISSIONER

 1  The Respondent advised of its consent by email on 9 May 2012, and the Applicant advised her consent by email dated 15 May 2012

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