Mr Robert Campbell John Hunter v Wentworth Financial Services Pty Ltd
[2022] FWC 3350
•30 DECEMBER 2022
| [2022] FWC 3350 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Robert Campbell John Hunter
v
Wentworth Financial Services Pty Ltd
(U2022/7179)
| DEPUTY PRESIDENT LAKE | BRISBANE, 30 DECEMBER 2022 |
Application for an unfair dismissal remedy – jurisdictional objection – minimum employment period – Small Business Fair Dismissal Code – jurisdictional objection dismissed.
This decision concerns an application by Mr Robert Campbell John Hunter (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant seeks a remedy claiming that his dismissal from his employment with Wentworth Financial Services Pty Ltd (the Respondent) was harsh, unjust and unreasonable. The Applicant’s employment with the Respondent commenced on 11 October 2021, and his employment was terminated on 4 July 2022. The Applicant was employed for a period of 8 months and 3 weeks.
In its Form F3 – Employer Response, the Respondent raised a number of jurisdictional objections on the grounds that:
· the Applicant’s employment did not meet the minimum employment period and;
· the Respondent is a small business employer and it complied with the Small Business Fair Dismissal Code;
The matter was allocated to my Chambers and I issued directions for filing of materials addressing the jurisdictional objections on the grounds that the Applicant has not met the minimum employment period and the Respondent’s contention that they are a small business employer and complied with the Small Business Fair Dismissal Code. This decision deals with those matters only.
LEGISLATION
Section 382 of the Act provides:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
The meaning of “minimum employment period” is relevantly provided at s.383 of the Act as follows:
“383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer--6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer--one year ending at that time.”
Small business employer is defined at s.23 of the Act:
“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, the employee is a regular casual employee of the employer 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.”
As provided in s.23(3) for the purposes of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity. Associated entities are defined in s.12 as having the meaning given by s.50AAA of the Corporations Act 2001, which provides as follows:
“50AAA Associated entities
(1) One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.
(2) This subsection is satisfied if the associate and the principal are related bodies corporate.
(3) This subsection is satisfied if the principal controls the associate.
(4) This subsection is satisfied if:
(a) the associate controls the principal; and
(b) the operations, resources or affairs of the principal are material to the associate.
(5) This subsection is satisfied if:
(a) the associate has a qualifying investment (see subsection (8)) in the principal; and
(b) the associate has significant influence over the principal; and
(c) the interest is material to the associate.
(6) This subsection is satisfied if:
(a) the principal has a qualifying investment (see subsection (8)) in the associate; and
(b) the principal has significant influence over the associate; and
(c) the interest is material to the principal.
(7) This subsection is satisfied if:
(a) an entity (the third entity) controls both the principal and the associate; and
(b) the operations, resources or affairs of the principal and the associate are both material to the third entity.
(8) For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:
(a) has an asset that is an investment in the second entity; or
(b) has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.”
HEARING
The Jurisdictional Hearing was conducted by telephone on 15 December 2022.
The Applicant acted for himself and Mr Darren Edden-Brown appeared for the Respondent in his role as Managing Director.
SUMMARY OF THE EVIDENCE AND SUBMISSIONS
Respondent’s submissions and evidence
The Respondent submits that it is a small business employer and complied with the Small Business Fair Dismissal Code and stated that the Applicant had not completed the required minimum employment period which is a period of 12 months for a small business.
The Respondent submits that its company along with its associate entities including Mills+Brown Pty Ltd only have a total of 14 employees including the Applicant in accordance with s.50AAA of the Corporations Act 2001.
As to whether it was a small business at the time when the Applicant’s employment was terminated, the Respondent provided Xero timesheet details for the week ending 7 July 2022. There were 16 people listed on its Payroll Employee Summary.
Applicant’s submissions and evidence
The Applicant did not submit any further material besides his Form F2.
The Applicant submits that Mr Brown accused him of being drunk and disorderly as the reasons for dismissal.
The Applicant stated that the Respondent employed “20-30 employees” during his examination in chief. The Applicant then provided a list of the colleagues he can recall from his time working for the Respondent stating that he only knew their Christian names. The Applicant provided 21 names.
CONSIDERATION
The Respondent replied to the Applicant’s claim that there were 21 employees stating that one of the people listed was an independent contractor, one employee was terminated for misconduct, one name could not be identified, two were interns of the group and not involved, and one who was outsourced to provide Human Resources. Initially, the Respondent had 14 employees as at 8 December 2022.
However, as the number of employees is determined by the date of dismissal. A request was made for another Payroll Employee Summary which provided a listed a total of 16 employees as at 8 July 2022 along with their individual payslips.
Mr Edden-Brown is also listed on the Payroll Employee Summary. He submits that he owns Wentworth Financial Services and its subsidiaries. With the removal of Mr Edden-Brown from the list, there are still a total of 15 employees on payroll. The Respondent submits that one employee was terminated on 18 July 2022. However, this was 10 days after the Applicant’s dismissal and is not removed from the total count.
Upon cross-checking the Applicant and Respondent’s materials taking into account the further information provided by the Respondent, the Applicant was able to identify 14 out of the 15 people on the Payroll Employee Summary. One of the employees may have used an anglicised name instead of their original name and the Respondent had not raised contention surrounding one of the names identified by the Applicant.
The Applicant was able to identify the 15 employees which was also confirmed with the Payroll Employee Summary as at 8 July 2022.
The Respondent has established that the business has 15 employees and therefore is not a small business defined in the Act. In this case, the minimum employment period is 6 months and the Applicant had been employed for a total period of six months and three weeks.
Accordingly, I order that the jurisdictional objection be dismissed. I will issue directions shortly for the programming of the matter for a hearing of the merits of the Application.
DEPUTY PRESIDENT
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