Mr Muath Al Saoub v Moondarra Caravan Park

[2014] FWC 2979

[2014] FWC 2979

FAIR WORK COMMISSION

DECISION

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

Mr Muath Al Saoub
v
Moondarra Caravan Park
(U2013/15551)

COMMISSIONER SIMPSON BRISBANE, 8 MAY 2014

Application for relief from unfair dismissal - Jurisdictional objection minimum employment period - Respondent had more than 15 employees - Objection dismissed.

[1] The following decision, now edited was issued during proceedings on 22 April 2014.

[2] For the purposes of just this one element of the case, the question as to whether or not there is jurisdiction, there’s a separate jurisdictional issue (if it gets past this point) as to whether or not the employer has complied with the small business code which is a different question to the one which we are dealing with now. I have formed the view, on the basis of what you have both said to me this morning and the material provided, that the respondent did in fact employ 15 employees on the basis that the employer has conceded that it employed 14. The argument was really about Lena Santos, Seong Kim and Reza Watanabe and for the purposes of getting to 15, only one of those needs to be deemed to be regular and systematically employed. This is not a simple question and, Ms Guilmartin, I respect the fact that you have put the case on the basis of your understanding of what that might mean for the purpose of the legislation, but I have had recourse to look at some authorities on the question before me this morning, particularly the matter of Corey Ponce v DJT Staff Management. 1 That’s a decision of the tribunal which goes in some details into looking at what’s meant by the words “regular and systematic employment”. In that decision and particularly at paragraph 66 it says, “..it does not mean that the hours or days of work must be regular and systematic”.

[3] It has been observed that for the purposes of looking at the question, paragraph 71 and 72 of that decision cite another authority in Yaraka Holdings Pty Ltd v Giljevic 2and in that case the court observed that:

“The concept of engagement on a systematic basis does not require the worker to be able to foresee or predict that his or her services may be required. It is sufficient that the pattern of engagement occurs as a consequence of an ongoing reliance upon the workers’ services as an incident of the business by which he or she is engaged”.

[4] In the same case in a separate judgment Madgwick J found:

“It is clear from the examples that a “regular...basis” may be constituted by frequent though unpredictable engagements and that a systematic basis need not involve either predictability of engagements or any assurance of work at all.

Engagement under contracts on a systematic basis implies something more than regularity in the sense just mentioned, that is frequency. The basis of engagement must exhibit something that can be fairly be called a system, method or plan”. 3

[5] While I take it on board the argument that you have put, Ms Guilmartin, that in relation to the three employees that really have been in contest, and I know that there is some submission about whether or not the identity in the list of Kim Seong was in fact intended to refer to two people not one, it’s really academic in that I am satisfied that at least one of those listed, probably all three, did fall within the definition in s.384 of the Fair Work Act 2009 (the Act) for the purposes of being counted in that there was on the submission by you, Ms Guilmartin, a reasonably regular pattern or method in that they were getting work almost every week at least since July. I note that that wouldn’t have had the level of certainty about it that a permanent relationship might have or even the same level of certainty that other regular casuals that had been working for a longer period every week, but I am satisfied that the arrangements that had been struck with those persons on balance would have been frequent since July and did have some system, method or plan to it in the sense that they had a reasonable expectation about it.

[6] On that basis, I think there is jurisdiction in that there were 15 employees. That really takes us to the next question. I am going to ask both parties a question now about how you want to go ahead and deal with all of this. The directions that I sent for this morning’s matter really were only to deal with this discrete question as to whether I was satisfied the employer was a small business. For the purposes of the act, I am now satisfied that it’s not and that it had at least 15 employees at the time of termination. That being the case, it really takes us past the other jurisdictional question as to whether or not the Small Business Code has been satisfied and it really comes to a question as to whether or not the dismissal is harsh, unjust or unreasonable.

COMMISSIONER

Appearances:

Mr M Al Saoub, for the Applicant

Ms F Guilmartin, for the Respondent

Hearing details:

Brisbane

April 22

2014

 1   [2010] FWA 2078.

 2 [2006] ACTCA 6.

 3   Yaraka Holdings Pty Ltd v Giljevic (2006) ACTA 6 at [91].

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