Mr Andrew P Walsh v Reol Pty Ltd T/A Reol Central
[2011] FWA 8902
•21 DECEMBER 2011
[2011] FWA 8902 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Andrew P Walsh
v
Reol Pty Ltd T/A Reol Central
(U2011/10448)
COMMISSIONER LEE | MELBOURNE, 21 DECEMBER 2011 |
Application for unfair dismissal remedy.
[1] This matter was listed for hearing before me on Wednesday 14 December 2011 in Brisbane. At the conclusion of that hearing I made an ex tempore decision. What follows is a revised and edited version of that decision.
[2] This is an application pursuant to section 394 of the Fair Work Act 2009 (the Act). I note that neither the applicant nor the respondent appeared at the hearing. I have established that the applicant in this matter, Mr Andrew Walsh, was advised of the time of the listing. Further, my Associate made numerous attempts prior to the hearing to contact Mr Walsh without success.
[3] The respondent in this matter is Reol Proprietary Limited trading as Reol Central. Mr Mahon, the managing director of the respondent, corresponded most recently with my Chambers on Tuesday, 13 December 2011. In that correspondence Mr Mahon indicated a number of things, including that he regrets not being able to attend the hearing at Fair Work Australia at the nominated time, despite the fact that it should be deemed completely unnecessary. In light of that correspondence, I was not expecting an appearance from the respondent at the hearing.
[4] In the absence of any appearances, I have determined this matter based on the material that I have before me.
[5] This matter was listed for hearing on jurisdiction. The jurisdictional point to be determined is whether the applicant is a person protected from unfair dismissal.
[6] Section 382 of the Act provides as follows:
“Section 382 When a person is protected from unfair dismissal
382 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.”
[7] The meaning of minimum employment period is provided at section 383 of the Act.
“Section 383 Meaning of Minimum Employment Period
383 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 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. “
[8] Section 23 of the Act sets out the meaning of a small business employer;
“Section 23 Meaning of small business employer
23(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. “
[9] The relevant consideration in these proceedings is whether or not section 382(a) of the Act is satisfied. If the respondent was at the time of the dismissal a small business within the meaning of section 23 and the applicant was employed by the respondent for less than 12 months then section 382(a) of the Act will not be satisfied and the application will not be able to proceed.
[10] It has been contended by the respondent by way of the filing of a Fair Work Australia Form F4 Objection to Application for Unfair Dismissal Remedy, that the applicant was employed for less than 12 months and that the respondent is a small business.
[11] Further, in the Fair Work Australia Form F3 Employer’s Response to Application for Unfair Dismissal Remedy, the respondent states, in answer to the question, "What was the applicant's period of employment?";
Date employed: 1/11/2010;
Date notified of dismissal: 01/08/2011
Date dismissal took effect: 01/08/2011.
[12] This indicates a period of employment of less than one year.
[13] The respondent also states in that same Form F3, in answer to the question, "How many employees did you have at the earlier or either time: the time when the employer was given notice of the dismissal or the time immediately before the dismissal?" The answer given is 9 employees.
[14] The period of employment that is stated by the applicant in his Form F2 Application for Unfair Dismissal Remedy lodged with Fair Work Australia, is that he was employed in November 2010, that he was notified of the dismissal on 1 August 2011, and date dismissal took affect was on 1 August 2011.
[15] Therefore, there is no difference of opinion between the applicant and respondent about the period of employment being less than a period of one year.
[16] However, there is nothing in the Form F2 lodged by the applicant or in any other material that has been provided by the applicant in respect of this matter which indicates whether or not the respondent employed less than 15 employees.
[17] The respondent in this matter provided to Fair Work Australia a letter from Dignan Stephens Accountants and that letter was forwarded to Fair Work Australia by email by Ms Jodie Sinclair, the office manager of the respondent's business. The letter is dated 9 December.
[18] The letter is addressed “To Whom it May Concern” and states as follows:
“We act as accountants for the above named and can confirm that REOL Central Proprietary Limited was operating as a small business and employed fewer than 15 employees. According to our records, Andrew Walsh was employed for less than 12 months. If you require any further information please do not hesitate to contact me.”
[19] The letter is signed by Annette Bedford, a director of Dignan Stephens Accountants.
[20] Based on the material that I have before me, it would appear that the respondent in this matter was a small business employer as defined by Section 23 of the Act. As the respondent is a small business employer and the applicant was employed for less than 12 months, the applicant is not a person protected from unfair dismissal pursuant to the Act. Therefore, there is no jurisdiction for this matter to proceed and the matter is dismissed.
COMMISSIONER
Hearing details:
2011
Brisbane
December 14
Printed by authority of the Commonwealth Government Printer
<Price code A, PR518082>
0
0
0