Mr Daniel Tenali v C.J. Eden Pty Ltd T/A Porter Republic
[2015] FWC 2854
•28 APRIL 2015
| [2015] FWC 2854 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Daniel Tenali
v
C.J. Eden Pty Ltd T/A Porter Republic
(U2015/2249)
COMMISSIONER WILSON | MELBOURNE, 28 APRIL 2015 |
Application for relief from unfair dismissal - jurisdictional objection - whether minimum employment period served.
[1] The following decision was given in transcript on Friday, 17 April 2015, and has been edited in certain grammatical and other respects.
[2] Mr Dircks, paid agent, was granted permission to appear for the Applicant in this matter for the reason I was satisfied the criteria within s.596 of the Fair Work Act 2009 (the Act) for the grant of permission for appearance of a paid agent or lawyer had been met.
[3] There was no attendance on behalf of the Respondent at the hearing of this matter. That the Respondent did not wish to appear and be heard was confirmed in an email from Ms Courtney Eden who is, I believe, the proprietor of the Respondent, C.J. Eden Pty Ltd T/A Porter Republic. The email, on 12 April 2015 was to Mr Tenali’s agent, and copied to the Fair Work Commission and advised that Ms Eden would not be attending the hearing, the reason being that she has a business to run. It was then further confirmed to my Associate in the course of a telephone call from him to her, on my instructions, on 16 April 2015, that Ms Eden did not wish to attend the hearing; that she did not wish to do so by telephone; and that she did not wish to have the matter adjourned so that she could attend, even by telephone at some later time. 1
[4] On this basis, and being satisfied that it was fair to do so, the hearing proceeded in the absence of the Respondent.
[5] The Applicant, Mr Daniel Tenali, by way of an application to the Fair Work Commission on 12 January 2015 seeks an application for an unfair dismissal remedy. The application discloses that there was a dismissal on the part of the employer on 3 January 2015. The evidence which was given by Mr Tenali at the hearing indicated that he commenced work with the business known as Porter Republic in February 2014. I note that the Form F3 - Employer Response which has been filed by the employer discloses also that the Applicant began working for the business in February 2014, and that the business is located in San Remo, Victoria. 2
[6] Mr Tenali’s application indicates, and his evidence confirmed this, that he was dismissed on 3 January 2015. In the course of the matter progressing through the Fair Work Commission, the Respondent has contested whether Mr Tenali is a person protected from unfair dismissal. That is an objection pursuant to the Fair Work Act 2009 (the Act), for the reason that the applicant has not met the requirements set out in s.382 and s.383 of the Act, which provide that a person is protected from unfair dismissal if they have completed at least the minimum employment period and one or more of the following apply;
- either a modern award covers a person
- an enterprise agreement applies to them, or
- their income is less than the high income threshold. 3
[7] I note that, for the purposes of this matter, the Respondent asserts in the Form F3 - Employer Response that they are bound by the Hospitality Industry Award. 4 After taking into account the evidence which was given at the hearing by Mr Tenali and also included in his witness statement and the other material which is before the Commission, I am satisfied that that award most likely does cover his employment.5
[8] The issue then turns to whether or not Mr Tenali has completed a period of employment which is at least that of the minimum employment period. The definition of that term is set out in s.383 of the Act. The definition provides that a small business employer has a minimum employment period of one year from the time that the person has been employed. With regards to the dispute which needs to be resolved in this matter, the principal question is whether or not the Respondent was a small business within the meaning of the Act. 6 This is because, having been employed in February 2014 and dismissed on 3 January 2015, Mr Tenali had completed less than one year’s employment with Porter Republic.
[9] Mr Dircks, in his submissions, has taken me to s.23 of the Act which sets out the meaning of a small business employer and, importantly, that the definition contained within the Act provides that a National System Employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time. Section 23 (2), s.23 (3), and s.23 (4) then set out the process by which the Commission must calculate the number of employees. 7
[10] Relevantly, all of the employees employed by the employer at the particular time are to be counted, and 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. Section 23 (3) requires that the Commission include, in that calculation, employees of an associated entity – although I note that there has not been any assertions at this time on any of the material that is before the Commission that there are associated entities that should be taken into account. 8
[11] The material which is before me, so far as the Applicant is concerned, consists firstly of the witness statement of Mr Daniel Tenali 9 and, secondly, an outline of submissions10 provided on his behalf by Mr Dircks, his agent.11
[12] On behalf of the Respondent, the material which is before the Commission comprises the material set out within the Form F3 - Employer Response, and also the material within three exhibits which include a bundle of statements provided by the respondent, 12 an email dated 23 March 2015,13 and, thirdly, an email provided by the employer to the Fair Work Commission on 12 April 2015.14
[13] I have also taken into account the evidence which has been provided by Mr Tenali at the hearing and find, generally, that he is a witness of truth, that the matters put to him, were answered, on my understanding, correctly and truthfully and without prevarication on matters that might cause me to put less weight on his evidence. When questions were put to the Applicant which might be against his case, he did not endeavour to embellish the answer and I believe he answered the questions truthfully. I therefore rely upon Mr Tenali’s evidence. 15
[14] On the basis of all of the material which is before me, including the evidence which was given at the hearing, I am satisfied that the Porter Republic – the company name of which is C.J. Eden Proprietary Limited – is not, for the purposes of the Act, a small business. I am satisfied that it is not a business which has fewer than 15 employees at the time Mr Tenali was dismissed from its employ. 16
[15] In the information which was provided to the Fair Work Commission by Ms Eden she concedes that there were nine employees within the business, and that concession is given in one of the attachments to an email from Ms Eden on 12 April 2015. 17 The payroll employee summary for the period from 1 January 2015 to 31 January 2015 discloses nine employees. One of those employees is referred to as Courtney Eden, who as I said appears to be the proprietor of the business.18
[16] On the basis of the payroll employee summary I take the view that Ms Eden was most likely an employee of that business, albeit that she might also be a person who draws profit from the proceeds of the conduct of the business. However for the purposes of these proceedings, it appears that she was an employee at that time. . 19
[17] The evidence which has then been given by Mr Tenali at the hearing indicates that, for the purposes of the definition set out within s.23 of the Act, a further 8 people were also employees, with the evidence disclosing that each was employed on a regular and systematic basis.;
- Mr Barry Densley;
- the person known as “Simone”;
- Ms Brittany Gonzalez;
- the person known as “Mary”;
- Ms Lilly Selby;
- Ms Mae Dusa;
- the person known as “Sugi”;
- Ms Jess Krog. 20
[18] For the purposes of the definition of the Act I am unable to resolve whether Ms Tammy Bosch or Ms Bree Bosch were employees at that time, although I note Mr Tenali believes that they were and I also note the submissions of Mr Dircks to the effect that assumptions should not be made that the two were not employees. 21
[19] Irrespective of my uncertainty about Ms Tammy Bosch and Ms Bree Bosch’s status, I note that the additional employees to which I have referred number eight, which means that I have found that together with the 9 conceded by Ms Eden, there are at least 17 people who were employees of the business at the particular time, being the time that Mr Tenali was dismissed from the business. 22
[20] On that basis I find that the jurisdictional objection made by the employer is without foundation. I dismiss the objection and will now refer the matter for hearing and determination upon the merits as so required by the Act in the usual manner.
COMMISSIONER
Appearances:
Mr D Tenali and Mr G Dircks (paid agent) for the Applicant
Hearing details:
2015
Melbourne:
17 April 2015.
1 Transcript, PN 205
2 Transcript, PN 197
3 Transcript, PN 198
4 MA000009
5 Transcript, PN 199
6 Transcript, PN 200
7 Transcript, PN 201
8 Transcript, PN 202
9 Exhibit A1
10 Exhibit A2
11 Transcript, PN 203
12 Exhibit R1
13 Exhibit R2
14 Exhibit R3; Transcript, PN 204
15 Transcript, PN 206
16 Transcript, PN 207
17 Exhibit R3
18 Transcript, PN 208
19 Transcript, PN 209
20 Transcript, PN 210
21 Transcript, PN 192
22 Transcript, PN 212
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