Mohamed Hassan v New Concept Homes Pty Ltd T/A Construction

[2020] FWC 3189

[2020] FWC 3189

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mohamed Hassan
v
New Concept Homes Pty Ltd T/A Construction
(U2020/2448)

COMMISSIONER BISSETT MELBOURNE, 18 JUNE 2020

Application for an unfair dismissal remedy.

[1] Mr Mohamed Hassan has made an application pursuant to s.394 of the Fair Work Act 2009 (FW Act) seeking relief from unfair dismissal. Mr Hassan was employed by New Concept Homes Pty Ltd (the Respondent) as a site supervisor.

[2] Mr Hassan commenced employment with the Respondent on 2 June 2019. He says that his employment was terminated on 13 February 2020 with an effective date of dismissal of 29 February 2020. The Respondent says that the effective date of dismissal was 31 January 2020. Mr Hassan made his application to the Commission on 3 March 2020. Dependent on the actual effective date of the termination of his employment Mr Hassan’s application may be outside the 21 day time limit required by s.394(2) of the FW Act.

[3] For the reasons given below I have found that Mr Hassan had not served the minimum employment period necessary to enable him to make an application to the Commission for relief from unfair dismissal. For this reason I do not need to determine Mr Hassan’s effective date of dismissal or consider if an extension of time within which to make his application is warranted.

Permission to be represented

[4] At the commencement of the hearing of the application, being satisfied that the Respondent could not represent itself effectively, I exercised my discretion to grant permission to the Respondent to be represented in proceedings.

Size of the Respondent’s business

[5] Dependent on the size of the Respondent’s business, it may be that Mr Hassan has not served the minimum employment period necessary to be protected from unfair dismissal.

[6] In the Form F3 – Employer response to application for unfair dismissal, the Respondent indicated that it had 1 employee (including Mr Hassan) at the time Mr Hassan’s employment was terminated.

[7] Mr Mekkya of the Respondent gave evidence that he builds new homes. He said that he does not directly employ those actually building the houses but that this work is subcontracted. He said that he employed Mr Hassan as a site supervisor and that in this role Mr Hassan attended the building sites, co-ordinated health and safety matters, conducted reporting, arranged deliveries and generally acted as a link between the sites and the Respondent.

[8] Mr Mekkya also gave evidence that he is the sole Director of the Respondent. He said that there are other businesses that he is a Director of but, even if employees of those other businesses were counted, he does not have more the 15 employees. Of the other companies of which he is a Director, Mr Mekkya says that 1 of those is not a related entity in the sense of the Corporations Act 2001.

[9] At the conclusion of the hearing I requested that the Respondent provide details of all companies that are employing entities of which Mr Mekkya is a Director and the details of each person that is employed by those Companies.

[10] This information was provided by Mr Mekkya through the Respondent’s representative and provided in a slightly redacted form to the Applicant. That information indicates that, combined, all companies of which Mr Mekkya is a Director employed fewer than 15 employees.

[11] Mr Hassan gave evidence as to the period of his employment with the Respondent. Further, he said that there were others who were employed by New Concept Homes and that he had seen “10-15 people in the office” of the Respondent. In particular Mr Hassan named “Kelly” and “Aqil” as people employed by the Respondent.

[12] At the conclusion of the hearing I gave Mr Hassan an opportunity to provide me with further information in relation to employees of the Respondent. Mr Hassan provided to the Commission information from a previous employee of the Respondent who indicated that he worked for the Respondent until April 2018 and, at that time, “Mr Aghil Jadri” worked for the Respondent.

[13] Mr Hassan provided no other evidence of any employees of the Respondent.

[14] In his further submissions Mr Hassan suggests that Mr Mekkya is not a person of credibility and I should not accept his evidence. Beyond a passing reference to other proceedings in court nothing is provided to support this submission.

Protection from unfair dismissal

[15] Section 382 of the FW Act states:

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.”

[16] If Mr Hassan has not worked the minimum employment period he is not protected from unfair dismissal and his application must, therefore, be dismissed.

[17] The minimum employment period is specified in s.383 of the FW Act:

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.

[18] If the Respondent is, in fact, a small business Mr Hassan must have been employed for at least 12 months to have served the necessary minimum employment period and hence to be eligible to make an application for unfair dismissal.

Findings

[19] I am satisfied on the basis of the evidence before me that the Respondent is a small business within the meaning of the FW Act. Mr Mekkya has willingly provided information to the Commission which clearly indicates that the Respondent is small business. I have no reason to doubt the evidence presented to me.

[20] Whilst Mr Hassan has made a number of assertions as to the number of employees of the Respondent, he has not been able to provide any information to support this such as the names of employees or work they may have performed. Further, Mr Hassan has made claims as to the credibility of Mr Mekkya as a witness but has provided nothing to support this. Speculation and a lack of basic details do not help Mr Hassan’s case. Further, that Mr Aqil does not show up on the Respondent’s pay records provided to the Commission does not support a conclusion that Mr Mekkya’s statement as to the basis of Mr Aqil’s employment was not correct.

[21] I find no reason not to accept the evidence of Mr Mekkya in relation to the number of employees of the Respondent.

[22] What is required to determine if the Respondent is a small business is the number of employees (including Mr Hassan) at the time Mr Hassan was dismissed. If Mr Aqil works from time to time for the Respondent, this does not suggest that he was paid in the period for which the Respondent provided pay records. However, even if Mr Aqil was included as an employee it does not support a conclusion that the Respondent was anything but a small business. Nor does it raise credibility issues as to the evidence of Mr Mekkya.

Conclusion

[23] For these reasons I am satisfied that the Respondent is a small business within the meaning of the FW Act.

[24] There is no dispute, and I am satisfied, that Mr Hassan was employed for at best 8 months. Mr Hassan therefore does not meet the minimum employment period required to enable his to make an application for unfair dismissal. He is therefore not protected from unfair dismissal and is not eligible to make an application for unfair dismissal.

[25] Mr Hassan’s application must fail for this reason.

[26] Given this finding I do not need to determine if Mr Hassan should be granted an extension of time within which to make his application.

[27] Mr Hassan suggests in some of his correspondence that a concern of his goes to the payment of outstanding monies to him. Mr Hassan may wish to contact the Fair Work Ombudsman in relation to his queries.

[28] For the reasons given above, the application of Mr Hassan is dismissed as he is not protected from unfair dismissal, having not served the minimum employment period necessary.

COMMISSIONER

Appearances:

M. Hassan on his own behalf.

O. El-Hissi of NOH Legal for the Respondent.

Hearing details:

2020.
Melbourne by telephone.
June 5.

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