Mr Alan Jones v Mary YSD Enterprises Pty Ltd

[2016] FWC 4057

[2016] FWC 4057

FAIR WORK COMMISSION

DECISION

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

Mr Alan Jones
v
Mary YSD Enterprises Pty Ltd
(U2016/1853)

COMMISSIONER HUNT BRISBANE, 21 JUNE 2016

Application for relief from unfair dismissal – jurisdiction – small business employer – application dismissed.

[1] On 21 April 2016, Mr Alan Jones lodged an application pursuant to s.394 of the Fair Work Act2009 (the Act) for an unfair dismissal remedy in respect to the ending of his employment from Mary YSD Enterprises Pty Ltd trading as 7-Eleven Maudsland (YSD Enterprises) on 2 April 2016.

[2] YSD Enterprisesobjects to the application being heard on the basis that YSD Enterprises is a small business as defined in the Act and Mr Jones had less than 12 months’ service. A further objection is that Mr Jones resigned his employment by text message on 2 April 2016, and there has not been a dismissal at the initiative of YSD Enterprises. Accordingly, YSD Enterprises contends that Mr Jones is not a person protected from the unfair dismissal provisions of the Act.

[3] The matter came before me for hearing on 21 June 2016. Mr Jones was self-represented. YSD Enterprises was granted leave to be represented by Ms Elaine Tran of Employee Relations Strategies Pty Ltd, a paid agent.

[4] Mr Jones gave evidence during the hearing. Mr Yosri Khela, Director of YSD Enterprises also gave evidence.

Background

[5] YSD Enterprises is the franchisee entity of the 7-Eleven service station at Maudsland, Queensland.

[6] Mr Jones was employed as a console operator for a period of approximately 7 months.

[7] Mr Jones sent to Mr Khela a text message on 2 April 2016 to the following effect (with typographical errors omitted):

“Absolutely disgusted with your attitude of nothing’s permanent. I quit and will be informing 711 and fair work ombudsman. Appreciate all your time and effort however I cannot work under these conditions.”

[8] Mr Jones contends that there are a number of issues relating to his former employment that resulted in him sending the text message. In Mr Jones’ application for unfair dismissal he submits that he had no other choice but to leave the employment.

Contentions - Is the respondent a small business?

[9] At the time of completing the F3 Employer’s Response, YSD Enterprisescontended that as of 2 April 2016, it employed 11 employees, including Mr Jones. Accordingly, YSD Enterprises contends that Mr Jones is not a person protected from the unfair dismissal provisions of the Act.

[10] Mr Jones contends that YSD Enterprises employed 15 or more employees on the relevant date.

Relevant Legislative Provisions

[11] The jurisdictional objection has been made in relation to the Division 2 of the Act. Section 382 of the Act provides as follows:

“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”.

[12] Section 383 of the Act provides the meaning of minimum employment period:

“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.”

[13] Section 384 of the Act defines the meaning of an employee’s period of employment:

“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.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”

[14] Section 23 of the Act defines the meaning of small business employer:

“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, 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.”

Number of employees

[15] In the weeks leading up to the hearing there was substantial correspondence between Mr Jones and my Chambers with respect to the relevant employees necessary to determine if YSD Enterprises is a small business employer.

[16] Mr Jones made application for the production of relevant material from YSD Enterprises. The information requested was provided on a voluntary basis by YSD Enterprises.

[17] A further application was made by Mr Jones, seeking to direct a number of current and former employees of YSD Enterprises to attend and give evidence at the hearing, and requiring YSD Enterprises to provide further documents relevant to the application. I did not make orders sought by Mr Jones. My Associate sent the following communication to the parties on 20 June 2016:

“Dear parties,

I refer to U2016/1853 – Jones v Mary YSD Enterprises Pty Ltd and previous correspondence in the matter.

Commissioner Hunt advises that the hearing listed for tomorrow, 21 June 2016 will be proceeding. The Commissioner intends to deal with the matters related to the Applicant’s requests for orders requiring persons to attend and order for production at the commencement of the hearing. Should the Commissioner determine that the issuing of such orders in the matter is appropriate, the hearing may be adjourned to allow for this to occur.”

[18] During the hearing I read to the parties a list of nominated employees (including Mr Jones), and sought agreement that the 12 employees’ names read by me were employees on the relevant date. The parties were in agreement.

[19] The following named individuals constituted the contested employees:

● Mr Khela

● Sylvia

● Tayla

● Mya

● Blake

● Adam

[20] Mr Khela had provided evidence to the Commission that he did not consider himself to be an employee of YSD Enterprises for the purposes of s.23 of the Act. However, when giving evidence at the hearing, Mr Khela freely volunteered that he does, indeed, consider himself to be an employee and draws a salary from the business. I find that Mr Khela’s evidence at the hearing was genuine, and no adverse inference should be drawn from the incorrect material earlier submitted to the Commission.

[21] With respect to the employee named Sylvia, the evidence of YSD Enterprises is that she resigned her employment by telephone to Mr Khela on or around 27 March 2016. She did not perform any work on or after 2 April 2016. Sylvia is a 16 year old female.

[22] Mr Jones submitted that I should find that because annual leave payments on termination were made by YSD Enterprises to Sylvia on or after 2 April 2016 that I should consider her to be an employee on the relevant date. I do not accept Mr Jones’ submission and I have decided not to include Sylvia in the number of employees employed on 2 April 2016.

[23] Mr Jones became aware that employees Tayla and Mya commenced employment on or around 4 April 2016. The employee forms completed by Tayla evidence that Mr Khela nominated a start date of 4 April 2016. Tayla signed the form on 5 April 2016.

[24] Mr Khela nominated a start date for Mya as 4 April 2016. Mya signed the form on the same day. Mr Jones acknowledged that he had not ever worked with Tayla or Mya, and accordingly, I conclude that Tayla and Mya were not employees of YSD Enterprises on 2 April 2016.

[25] It is evident that an employee named Blake commenced casual employment with YSD Enterprises on 1 April 2016 and had worked one shift by 2 April 2016. Blake resigned his casual employment by text message to Mr Khela on 14 April 2016 with the following message:

“Hey Yos, I’m sorry to do this but I got to leave its not for me thank you again I’ve left [name] on his own. Don’t pay me for this shift I don’t deserve it. Regards Blake.”

[26] An employee named Adam commenced casual employment on 31 March 2016 and had completed one shift by 2 April 2016. Adam continues to be employed as a casual employee by YSD Enterprises.

[27] Having concluded that Mr Khela is to be included in the number of employees relevant for the purposes of the small business employer, the uncontested number of employees is 13. Mr Jones submitted that I should include Sylvia, Tayla, Mya, Blake and Adam. I have earlier decided that I cannot include Sylvia, Tayla and Mya in the calculations.

[28] What then of Blake and Adam? Both casual employees had commenced employment one and two days before 2 April 2016, and both had completed one casual shift.

Regular and systematic

[29] In this matter the meaning of the term ‘regular and systematic’ is of importance because if casual employees Blake and Adam are determined to be casual employees employed on a regular and systematic basis, then they are to be counted towards the number of employees, and YSD Enterprises would be found to be employing 15 employees on the relevant date. Accordingly, they would not be a small business. In such a circumstance, Mr Jones’ employment, being greater than 6 months would count towards his period of employment and he would be a person protected from unfair dismissal.

[30] It is a relevant consideration to note that the test for inclusion of a casual employee for the purposes of s.384 and s.23 are different. For the purpose of s.23 it is necessary only to determine if the casual employee (in this case Blake and Adam) was employed on a regular and systematic basis at that time. [emphasis added].

[31] For the purpose of s.384, establishing whether a period of employment of a casual employee counts towards that employee’s period of employment requires consideration of whether the casual employee was employed on a regular and systematic basis and had a reasonable expectation of continuing employment on a regular and systematic basis. [emphasis added].

Legal precedent

[32] In the Federal Court Barker J said in Williams v MacMahon 1:

‘It was open to the Federal magistrate to find that Mr Williams was not a “casual employee” under the general law and therefore for the purposes of the WR Act. His engagement was not for the performance of work on an intermittent or irregular basis. The future was provided for. The nature of the work required of the employee was stipulated. A roster was in place which made clear the regularity of the employment. Travel arrangements were organised to facilitate it. All this suggests that this was an employment arrangement far beyond that of casual employment.’

Consideration

[33] It is not contested by the parties that there were at least 13 employees employed on 2 April 2016.

[34] Having determined that I am unable to include Sylvia, Tayla or Mya in the calculations, it is only necessary for me to determine if Blake and Adam were, on 2 April 2016, casual employees employed on a regular and systematic basis. I am not required to determine if Blake and Adam had a reasonable expectation of continuing employment.

[35] Both men had only worked one casual shift. There was no evidence before me that rosters were planned well in advance and the long-term future accommodated. Rosters are issued on a week-by-week basis. Mr Jones’ dissatisfaction with the irregularity of the work, even as a part-time employee is evidence of there being no long-term commitment beyond one week to employees of hours to be worked.

[36] I find that Blake and Adam were casual employees employed on 2 April 2016, but they were not employed on a regular and systematic basis. Accordingly, they are not to be counted in determining whether YSD Enterprises is a small business employer in terms of the Act.

Conclusion

[37] I have considered the submissions and evidence in this matter and I conclude that YSD Enterprises had 13 relevant employees at the time of Mr Jones’ cessation of employment and is therefore a small business employer pursuant to the Act. Since Mr Jones had less than 12 months’ employment, he is not a person who is protected from unfair dismissal pursuant to s.396 of the Act.

[38] The application is dismissed.

COMMISSIONER

Appearances:

A Jones, the Applicant

E Tran, Graduate Employee Relations Consultant with Employee Relations Strategies Pty Ltd with D. Price

Hearing details:

2016.

Brisbane/Sydney (Videolink):

June 21.

 1   Williams v MacMahon Mining Services Pty Ltd [2010] FCA 1321

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