Monique Bonnici v S.M.P Business Solutions Pty Ltd

[2015] FWC 5750

[2015] FWC 5750

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Monique Bonnici
v
S.M.P Business Solutions Pty Ltd
(U2015/7878)

COMMISSIONER GREGORY MELBOURNE, 9 SEPTEMBER 2015

Application for relief from unfair dismissal – Minimum employment period (Small Business).

Introduction

[1] Ms Monique Bonnici began working for S.M.P Business Solutions Pty Ltd (“SMP”) in October last year. She worked as a cleaner and was located at the Mt Eliza Business School. However, Ms Bonnici was dismissed from her employment in May and subsequently lodged an unfair dismissal application.

[2] SMP has raised a jurisdictional objection in response to the application, based on two grounds. It submits, firstly, it is a “small business employer,” as it employs less than 15 employees, and therefore Ms Bonnici has not completed the requisite 12 month qualifying period prior to making her application. It submits, in the alternative, that if it is not found to be a small business employer Ms Bonnici was employed in two the separate periods of employment from 29 October until 12 December 2014, and from 24 January until she was dismissed on 4 May 2015. Therefore, she has not completed the requisite six month qualifying period. This decision deals with those jurisdictional objections.

[3] Mr M. Minucci of Counsel was granted permission to appear on behalf of Ms Bonnici under s.596(2)(a) on the basis that the issues to do with the jurisdictional objections involved a degree of complexity. Permission was only granted at this time in regard to the determination of the jurisdictional objections. Mr S. Papandreou, a Director of SMP, appeared on its behalf.

The Issue to Be Decided

[4] Section 382 of the Fair Work Act 2009 (Cth) (“the Act”) provides that a person is protected from unfair dismissal at a time if the person is “an employee who has completed a period of employment with his or her employer of at least the minimum employment period.” 1

[5] Section 383 continues to provide that:

“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.” 2

[6] Section 23 sets out the meaning of “small business employer.” It states:

“(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, at that time, 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.” 3

[7] Therefore:

1. Was SMP a “small business employer,” as defined in the Act, at the time it dismissed Ms Bonnicci in May this year?

2. If the Commission finds SMP was not a small business employer at the time it dismissed Ms Bonnicci, had she been employed for the minimum employment period of six months at the time she was dismissed?

The Evidence and Submissions

Small business employer – less than the 15 employees

[8] SMP submits that at the time Ms Bonnici was dismissed on 4 May 2015 it employed a total of 13 employees, and was therefore a “small business employer” within the meaning of s.23 of the Act.

[9] Mr Papandreou is a Director of SMP. His evidence is that on 4 May 2015 SMP employed a total of 13 employees, including Ms Bonnici. His witness statement attached a document with the SMP Business Solutions Pty Ltd letterhead and the heading “Payroll Activity (Summary),” indicating it was created on 1 June 2015 in respect of the period from 1 April 2015 to 1 May 2015. Ms Bonnici’s name was on that list, together with an additional 12 names.

[10] Mr Papandreou submits this evidence confirms SMP is a small business employer with a total of 13 employees. He also said he is the only Director of the business, but is not an employee. He also indicated his wife is not employed by the business.

[11] His evidence is that the business carries out work pursuant to a contract with the Mt Eliza Business School at its sites at Mt Eliza and Carlton. In his submission the Carlton campus requires a night crew of five cleaners, plus one additional cleaner during the day. The remaining employees work at the Mt Eliza site, although two employees work at both locations on occasions.

[12] Mr Papandreou rejected the suggestion put to him in cross-examination that the business had more than 13 employees at the time Ms Bonnici was dismissed. He also indicated the business operates as a separate entity and has no relationship with any other business.

[13] Ms Bonnici denies SMP had only 13 employees at the time she was dismissed. Her witness statement foreshadowed the possibility of further evidence being forthcoming in support of this denial, but no such evidence was ultimately provided.

[14] She also made reference in her evidence in chief to estimates about the number of employees that would be required to run a housekeeping suite, and the various casual employees she had seen at the Mt Eliza site. She concluded:

“So on our site alone there was roughly around 10 from my knowledge and I can only assume that another site of a similar size would have the same amount or slightly less but it would be roughly around 15.” 4

[15] She also said she had not worked at the Carlton site and was not familiar with the employees working at that location. She also said Mr Papandreou’s wife and business partner were not listed on the payroll record attached to his witness statement, and she understood they were also employed by the business. She also suggested separate accounts might exist for each site.

[16] She also agreed in cross-examination that the payroll activity statement attached to Mr Papandreou’s witness statement contained a list of 13 names, including hers.

The Period of Employment

[17] SMP submits Ms Bonnici commenced employment on 29 October 2014, but was then terminated on 12 December 2014, as the Business School closed down during the Christmas/New Year period. It submits she was then employed again on 9 February 2015 until she was again terminated on 4 May due to issues to do with her work performance.

[18] Mr Papandreou’s evidence is that Ms Bonnici was originally employed on the recommendation of a Job Placement Agency and worked as a cleaner at the Mt Eliza Business School. She was initially employed to work for 30 hours each week, but this was reduced to 25 hours per week in late November. Mr Papandreou said he spoke with Ms Bonnici sometime during the early part of December and explained the Business School would be closing over the Christmas/New Year period, but there might be work available again in the New Year, although there were no guarantees. He said Ms Bonnici responded by asking him to “keep her posted.” 5 He then advised the Agency that Ms Bonnici would not be required after 12 December. He said the Business School then closed down from 14 December until 13 January.

[19] Mr Papandreou’s evidence is that he then engaged another employee, Mr Donald Brown, to work as a cleaner at the Business School in the role that had been previously carried out prior to Christmas by Ms Bonnici. Mr Brown was employed on 22 January and commenced work on 2 February, but resigned two days later after telling Mr Papandreou the work was not for him.

[20] Mr Papandreou said he then spoke again with the Job Placement Agency, who said SMP could re-employ Ms Bonnici on the basis that her probation period would commence again from the date of re-employment. Mr Papandreou said he then contacted Ms Bonnici to offer her further employment. She accepted that offer and commenced work on 9 February 2015. He also asked her whether she still had a set of keys to the Business School as it was auditing and reconciling all keys that had been issued.

[21] SMP also submits it understood Ms Bonnici was employed on a part-time basis during the initial period of employment in 2014, but was then employed on a casual basis in 2015. It also understood she obtained employment elsewhere during the period when she was not employed by SMP.

[22] Ms Bonnici denies she was terminated in December 2014 when the Business School closed and submits instead she was told she was being stood down during the closedown period and her employment would continue when the Business School resumed operation.

[23] Ms Bonnici’s evidence is that she was told by Mr Papandreou in December there was going to be a shutdown period and was asked whether that would “be OK”. 6 She said she responded by indicating “that should be fine,” and she would pick up some interim casual work in the meantime.7 She said she then worked until 12 December, and on that day sent a text message to Mr Papandreou indicating “see you on the 26th,” confirming her understanding that she would resume work on 26 January.8

[24] However, she also indicated in her examination in chief that she then received a phone call a few days later from the Job Placement Agency indicating Mr Papandreou had told the Agency he did not want her back. She indicated that she accepted this situation, given her understanding that the job only involved a casual position. However, she then received a voice message from Mr Papandreou on 9 February indicating the business was now back up and running and again offering her work. She said she immediately contacted the Job Placement Agency indicating she was confused because she thought she had been terminated. However, after speaking with Mr Papandreou she then returned to work, working the same hours she had worked previously.

[25] Ms Bonnici indicated in cross-examination she was told by the Job Placement Agency that her employment at SMP had been terminated, however, she was not told by Mr Papandreou that she had been dismissed. She also acknowledged she had done some cleaning work on a casual basis for another business during the time she was not working for SMP. She also confirmed she signed a job placement declaration form provided to her by the Job Placement Agency indicating she was accepting a new position as a casual cleaner. However, she understood this was required to facilitate a wage subsidy being provided.

Consideration

Small business employer – less than 15 employees

[26] As indicated, SMP has raised the jurisdictional objection that Ms Bonnici had not completed the minimum employment period at the time of her dismissal because SMP came within the definition of a small business employer, as it employed less than 15 employees at the time she was dismissed.

[27] SMP relies on the evidence of its Director, Mr Papandreou, about the number of employees it employed, and he provided additional detail about the number of employees engaged to work as cleaners at the two locations SMP services under its contract with the Business School. That evidence indicated six employees work at the Carlton site, with a similar number at the Mt Eliza site. Two employees also work at both sites on occasions. SMP also relies on the evidence of a Payroll Activity statement, dated 1 June 2015, which it submits details the 13 employees employed by SMP, including Ms Bonnici, at the time she was dismissed.

[28] Ms Bonnici rejects this evidence, but provided little or no evidence in response. She indicated she understood Mr Papandreou had a business partner, who also worked in the business, and she believed his wife was also employed. She estimated that the business employs “roughly around 15” employees, but acknowledged she had not worked at the Carlton site, and was not aware of how many employees were engaged at that location.

[29] Given the evidence before the Commission in this matter and I refer, in particular, to the evidence of Mr Papandreou and the Payroll Activity (Summary) attached to his witness statement, 9 I am satisfied that the only conclusion that can be arrived at, based on the evidence, is that at the time of Ms Bonnici’s dismissal in May SMP employed a total of 13 employees.

[30] SMP was, therefore, a small business employer at the time Ms Bonnici was dismissed, being a business that employed less than the 15 employees. Therefore, it follows under s.382 that Ms Bonnici was not a person protected from unfair dismissal at the time she was dismissed because she had not completed the requisite minimum employment period of one year. Her application must therefore be dismissed.

The Period of Employment

[31] Having come to this decision it follows that it is not necessary to determine whether Ms Bonnici had been employed for the requisite period of six months if SMP was not a small business employer. However, without definitively determining the matter this appears unlikely, based on the evidence and submissions.

[32] While Ms Bonnici appears to have been of the view that further work would be provided to her at some point in the future at the time of the Christmas/New Year closedown in mid-December, the evidence indicates she was then told by the Job Placement Agency, that facilitated her employment with SMP, that her job had been terminated. She appears to have accepted this situation and subsequently obtained casual work with another business.

[33] SMP then engaged another employee to carry out the work previously performed by Ms Bonnici, and it was only when this employee decided he no longer wanted to continue in employment with SMP that Mr Papandreou made contact with Ms Bonnici and again offered her work. This offer apparently involved casual work, rather than the part-time position in which she had been previously employed. This evidence makes it difficult to conclude Ms Bonnici was in a continuous employment relationship with SMP from October 2014, when she was first employed, until May 2015 when she was finally dismissed.

COMMISSIONER

Appearances:

Mr M. Minucci of counsel appeared with Mr M. Tomisich from Hymans Solicitors on behalf of the Applicant.

Mr S. Papandreou appeared on behalf of the Respondent.

Hearing details:

2015.

Melbourne:

17 July.

 1   Fair Work Act 2009 (Cth) at s.382(a)

 2   Ibid at s.383

 3   Ibid at s.23

 4   Transcript at PN184

 5   Exhibit SMP2 at para 8

 6   Transcript at PN168

 7   Ibid

 8   Ibid at PN157

 9   Above n.v at annexure SP1

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