Mr Duane White v Sabel Investments trading as Martin's Panelmasters

[2013] FWC 4763

[2013] FWC 4763

FAIR WORK COMMISSION

DECISION

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

Mr Duane White
v
Sabel Investments trading as Martin's Panelmasters
(U2013/6649)

COMMISSIONER ROE SYDNEY, 17 JULY 2013

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

[1] The matter arises from an application filed on 13 February 2013 under s 394 of the Fair Work Act 2009 (the Act) by Mr Duane White (the Applicant) for relief in respect to the termination of his employment from Martin’s Panelmasters (the Respondent). The Respondent advised that the identity of the Respondent is Sabel Investments trading as Martin's Panelmasters (the Respondent). I amend the Application in this matter to correctly identify the Respondent.

[2] It is not in contention and I am satisfied that the Applicant was employed full time by the Respondent from 12 June 2012 until 11 February 2013. The Applicant had more than six months but less than twelve months continuous service. The Applicant was dismissed at the initiative of the employer for performance and conduct matters on 11 February 2013. He was paid one week’s notice.

[3] The Applicant is therefore protected from unfair dismissal unless the Respondent is a small business employer. If the Respondent employed 15 or more employees, including the Applicant, at the time of the termination the Applicant is protected from unfair dismissal. The Respondent claimed that it was a small business employer.

[4] 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.”

[5] The Respondent advised of its objection to the Application on the grounds it was a small business on 3 May 2013. On 31 May 2013 the Respondent provided a payroll record in support of its objection. The Applicant did not file any response material as set out in the Directions of 24 May 2013. The Respondent advised the Applicant that they would seek to have the Application dismissed under Section 399A(1)(b) because he had not complied with a direction to file a response.

[6] That Section provides as follows:

“399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.”

[7] The Applicant did not attend the hearing of the jurisdictional objection. I delayed the proceeding whilst my Associate unsuccessfully attempted to contact the Applicant.

[8] The Respondent was represented as part of the FWC pro-bono program and I granted leave for the Respondent to be represented. The Respondent accepted that upon receipt of advice it now understood that it was not a small business as defined in the Act.

[9] The Respondent therefore withdrew its jurisdictional objection and accepted that I should find that the Applicant is protected from unfair dismissal. The Respondent also requested that should their Application that the matter be dismissed pursuant to Section 399A of the Act be rejected that the matter proceed to a telephone conciliation conference prior to any hearing of the merits of the matter.

[10] In all of the circumstances I decided that I should advise the Applicant that the jurisdictional objection has been withdrawn and that there is no barrier to the merits of his case being considered. However, given the failure of the Applicant to respond to the earlier directions of the Commission and his failure to attend the listed jurisdictional hearing and the inconvenience caused I required the Applicant to provide advice by close of business on Tuesday 16 July 2013 that he wishes to proceed with his Application and reasons why his application should not be dismissed pursuant to Section 399A(1)(a) and (b), namely his failure to attend the hearing on 12 July 2013 and his failure to comply with directions relating to the Application. Should the Applicant provide a satisfactory response and indicate that he wishes to proceed with his application then the matter would be referred for a telephone conciliation conference. Should conciliation fail then the matter would be listed for a hearing of the merits.

[11] The Applicant failed to provide any response and I therefore dismiss the Application pursuant to Section 399A(1)(a) and (b).

COMMISSIONER

Appearances:

No appearance from the Applicant.

Mr J Znygier from Holding Redlich appeared for the Respondent as part of the FWC pro bono program.

Hearing details:

2013

Melbourne

July 12

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<Price code A, PR539015>