Mr Brodie Dickson v The Gillies Group T/A Masterglass & Aluminium

[2013] FWC 613

[2013] FWC 613

FAIR WORK COMMISSION

DECISION

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

Mr Brodie Dickson
v
The Gillies Group T/A Masterglass & Aluminium
(U2012/14205)

COMMISSIONER ROE MELBOURNE, 25 JANUARY 2013

Termination of employment- jurisdiction- minimum employment period - small business.

[1] The matter arises from an application filed on 15 October 2012 under s 394 of the Fair Work Act 2009 (the Act) by Mr Brodie Dickson (the Applicant) for relief in respect to the termination of his employment from The Gillies Group Pty Ltd T/A Masterglass & Aluminium (the Respondent).

[2] The Applicant was employed by the Respondent as an apprentice from 4 January 2012 until 28 September 2012. The Applicant was dismissed allegedly for reasons of redundancy. The Respondent advised in a letter of 28 September 2012 that the Applicant was redundant effective that day and “there is no other job function within the company that we can offer you.” The Applicant was paid one week in lieu of notice. The Applicant has more than six months but less than twelve months continuous service. Therefore if the Respondent is a small business the Applicant is not protected from unfair dismissal whilst if the Respondent is not a small business the Applicant is protected from unfair dismissal.

[3] In the event that the Respondent is not a small business the issue as to whether or not the redundancy is a genuine redundancy would have to be determined. The Applicant argues, but the Respondent does not concede, that there was no consultation about the redundancy and that another apprentice was hired two weeks after his termination.

[4] The Applicant’s apprenticeship contract was signed by the Respondent, the Gillies Group Pty Ltd, on 18 January 2012 and was registered on 25 January 2012. The contract at question 36 provided that the total number of people employed by the firm was 15, the Applicant was the only apprentice and that there were 7 employees who had the competencies available to supervise or train the Applicant.

[5] The matter to be determined is whether or not the Respondent, including in any associated entities, employed 15 or more employees at 28 September 2012 (including the Applicant and any other employees also dismissed on that date).

[6] The Act provides as follows:

“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.”

[7] At the hearing on 25 January 2013 in response to my question Mr Jamie Gillies conceded that the Respondent employed 16 employees at 28 September 2012 if associated companies were included.

[8] I am satisfied that the Respondent is not a small business employer and that the Applicant is therefore protected from unfair dismissal.

COMMISSIONER

Appearances:

The Applicant appeared for himself.

The Respondent was represented by Mr Don Blanksby of Glass & Glazing Association Victoria Inc.

Hearing details:

2013

Melbourne

January 25

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