Mr Hayden Mole v Yelpsa Pty Ltd as trustee for Utr Trust T/A UltraTune Redcliffe

[2021] FWC 5300

[2021] FWC 5300

FAIR WORK COMMISSION

DECISION

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

Mr Hayden Mole
v
Yelpsa Pty Ltd as trustee for UTR Trust T/A UltraTune Redcliffe
(U2021/4614)

DEPUTY PRESIDENT LAKE BRISBANE, 26 AUGUST 2021

Application for an unfair dismissal remedy – Small Business Fair Dismissal Code – whether the Respondent is a small business – where there are associated entities – minimum employment period not met – application dismissed

[1] On 27 May 2021, Mr Hayden Mole (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) alleging that he had been unfairly dismissed from his employment with UltraTune Redcliffe (the legal name of which was recorded in the Respondent’s Form F3 as Yelpsa Pty Ltd as trustee for UTR Trust T/A UltraTune Redcliffe) (the Respondent). The Applicant seeks compensation rather than reinstatement.

[2] The parties agreed that the Applicant was notified of his dismissal on 6 May 2021, effective immediately. He attempted to lodge his application with the Commission outside of hours on 27 May 2021 in a format that was not readable by the Commission. I understand the Applicant was only advised that the Commission could not read the application the following day which did not give him the opportunity to resend the application in a readable format prior to midnight on the 21^st day. As a result, when he filed the application in a readable format the following day, it was deemed by the Commission to be within the 21-day time limit prescribed by the Act.

[3] The Respondent objected to the application on the basis that it was a small business employer (that is, it had less than 15 employees) 1 and had complied with the Small Business Fair Dismissal Code. The Respondent further claimed that the Applicant did not meet the minimum employment period.

[4] Pursuant to s.390 of the Act, the Commission can only order an unfair dismissal remedy if the Applicant was a person “protected from unfair dismissal”. This requires the person to have completed a period of employment that is at least the minimum period of employment. 2 If the employer is a “small business employer”, that period is one year ending at the time when the person is given notice of dismissal, or immediately before the dismissal, whichever is earlier. 3

[5] Following a conference with the parties, it was agreed that the jurisdictional matter could be dealt with on the papers. Directions were issued regarding the filing of evidence and submissions by each party. The parties’ material took the form of various emails and other documentation. Having regard to everything that was sent to my Chambers, I formed the view that a hearing was required. Given each parties’ availability, that was scheduled for 20 August 2021.

Associated entities

[6] The Applicant alleged that the Respondent’s Redcliffe, Chermside and Caboolture stores were associated entities and should therefore be grouped together when considering if the Respondent is a small business.

[7] Sandra Kerr, the Respondent’s owner, gave evidence on the Respondent’s behalf. Her daughter-in-law appeared with her at the hearing. Ms Kerr stated that the Respondent owns and operates UltraTune Redcliffe and UltraTune Chermside. Yelpsa Pty Ltd is the parent company of those two entities. The Respondent submits these are separate entities, with separate ABN and tax file numbers. Ms Kerr conceded that occasionally employees would be asked to work between the stores. If they did so, they would be paid by their usual employing entity rather than the store they had worked at that day. Notwithstanding that, Ms Kerr stated that they are not associated entities within the meaning of the Act.

[8] In respect of UltraTune Caboolture, Ms Kerr’s evidence was that the business was sold on 30 September 2020 and in any event, had only one employee. Her evidence was that there were no other connected entities to UltraTune Redcliffe and UltraTune Chermside stores.

[9] Having had regard to s.12 of the Act, which defines an associated entity by reference to s.50AAA of the Corporations Act 2001 (Cth) and ss.50AAA and 50AA of the Corporations Act (which deal with control), I am satisfied that the UltraTune Redcliffe and UltraTune Chermside stores were associated entities within the meaning of the legislation. It is unnecessary for me to determine whether UltraTune Caboolture was also an associated entity as it was sold in September 2020, well in advance of the Applicant’s termination. Consequently, in respect of the jurisdictional objection, I must determine whether the UltraTune Redcliffe and UltraTune Chermside, when considered together, had less than 15 employees.

Number of employees

[10] The Applicant’s mother, on the Applicant’s behalf, submitted by email on 21 July 2021 that:

“During Hayden's employment he physically attended and worked shifts at three stores, all owned an operated by the same person: Redcliffe, Caboolture and Chermside.

Within these three locations, Hayden recalls meeting several employees, including Rabi, Josh, Jacob, Greg, Brad, Nic, Andrew, Trent, Blade, two workers who were Indian and Canadian (he doesn't recall their names) as well as Sandra and John and himself. Hayden cannot recall any other names, as many staff were "hired and fired" regularly, so it is not fair or reasonable for him to remember them all.”

[11] At the hearing, the Applicant cross-examined Ms Kerr in respect of each of the people he believed were employees of each of the entities throughout his employment. He was reminded that the relevant date was that of his dismissal, rather than over the course of his entire employment. Ms Kerr’s evidence was that there were 11 employees at the time of the Applicant’s dismissal between Ultratune Redcliffe and Ultratune Chermside stores. Under cross examination by the Applicant, she gave each of their names and an explanation for any that the Applicant alleged should be counted that were not. Those individuals had left the Respondent’s employ by the time the Applicant was dismissed. The Applicant accepted that he had no evidence to contradict Ms Kerr’s evidence in relation to each of those employees. Ms Kerr’s evidence was that there were no other employees employed at the time of the Applicant’s dismissal that had not been mentioned.

[12] Accordingly, I am satisfied that the Respondent was a small business employer and that the Small Business Fair Dismissal Code applied.

[13] The minimum employment period was therefore 12 months. 4

Minimum Employment Period

[14] The correct approach to the calculation of the minimum period of employment is to ascertain the actual period of employment between the commencement date of employment and the time when the person is given notice or immediately before dismissal. 5

[15] The Applicant commenced his employment with the Respondent on 13 July 2020 and was informed of his termination on 6 May 2021. The separation certificate notes the reason for termination was a shortage of work.

[16] Consequently, the Applicant had not completed the minimum period of employment.

[17] Accordingly, I find that the jurisdictional objection is upheld and order that the Application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR733229>

 1   Fair Work Act 2009 (Cth) s.23.

 2   Fair Work Act 2009 (Cth) s.382(a).

 3   Fair Work Act 2009 (Cth) s.383.

 4   Fair Work Act 2009 (Cth) s.383.

 5   Wales v 3 Point Motors Pty Ltd T/A 3 Point Motors[2012] FWA 3817.