Mr Scott McDuff v Surfers Paradise Alliance Limited

[2014] FWC 6564

[2014] FWC 6564

FAIR WORK COMMISSION

DECISION

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

Mr Scott McDuff
v
Surfers Paradise Alliance Limited
(U2014/7919)

COMMISSIONER SPENCER BRISBANE, 8 OCTOBER 2014

Application for relief from unfair dismissal - jurisdictional objection - Minimum employment period.

Introduction

[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Mr Scott McDuff (“the Applicant”) who alleges that the termination of his employment with Surfers Paradise Alliance Limited, (“the Respondent”) was unfair in accordance with the definition contained within s.387 of the Act.

[2] The application was filed on the 17 June 2014. The Respondent raised a jurisdictional objection to the substantive matter, on the basis that the Applicant did not meet the minimum employment period, as per section 383 of the Act. Directions were issued for the filing of submissions and evidence in relation to the jurisdictional objection. Material was filed by both parties.

[3] The parties agreed to the matter being determined on the papers, after further material was provided.

[4] It is noted that whilst not all of the evidence and submissions are referred to in this decision, all have been considered.

Background

[5] The submissions filed by the Applicant stated that he commenced employment on 8 July 2013 as Events Director at Surfers Paradise Alliance and was employed by the Respondent, until the date the dismissal took effect, recorded as 11 June 2014.

[6] The Respondent stated on the Form F3 that the Applicant was dismissed after a period of eleven months. Therefore, the Respondent submitted that the Applicant had not met the minimum period of employment as per s.383 of the Act.

Relevant Legislative Provisions

[7] The jurisdictional objection has been made in relation to the Division 2 of the Act. Section 382 of the Act provides as follows:

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.

[8] Section 383 of the Act provides the meaning of minimum employment period:

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.

[9] Section 384 of the Act defines the meaning of an employee’s period of employment:

384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.

[10] Section 23 of the Act defines the meaning of small business employer:

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.

Summary of Respondent’s submissions on jurisdictional issue

[11] The Respondent submitted that the Applicant was employed by the Respondent from 8 July 2013 to 11 June 2014 and was employed for less than 12 months. The Respondent therefore submitted that pursuant to s.383 of the Fair Work Act 2009 (Act), the Applicant will not have met the minimum employment period if the Respondent is a Small Business Employer for the purposes of s.23 of the Act, and the Applicant will not be a person protected from unfair dismissal pursuant to s.382(a) of the Act.

Summary of the Applicant’s submissions on jurisdictional issue

[12] The Applicant submitted that he was employed by Surfers Paradise Alliance Limited and addressed in his submission the issue of “meaning of small business employer.” The Applicant submitted that at the time of his dismissal there were 12 employees employed full-time (one being the office manager) and 6 casual employees and the Respondent was therefore not a ‘Small Business’ for the purposes of the Act.

[13] The Applicant provided a list of employees titled “During April 2014 the following staff were working for Surfers Paradise Alliance”. The Applicant listed the names of the 12 full-time staff and 6 “Part Time/Contractor Staff”, whom the Applicant submitted were casuals employed on a recurring and systematic basis.

Summary of Respondent’s response to the Applicant’s submissions on jurisdictional issue

[14] The Respondent rejects the Applicant’s list of employees on the basis that:

a. the Applicant was dismissed on 11 June 2014, and pursuant to s.23(4) of the Act the number of employees on 11 June 2014 must be taken into consideration, and not the employees engaged by the Respondent in ‘April 2014’;

b. the Applicant’s list of employees is not a correct reflection of the number of employees engaged by the Respondent at the time of the Applicant’s dismissal; and

c. the Applicant has asserted that all of the Respondent’s casual employees are employees for the purposes of s23.(2)(b), which is rejected by the Respondent.

[15] The Respondent submitted that at the time of the Applicant’s dismissal, the Respondent employed twelve (12) employees for the purposes of s.23 (4) of the Act.

[16] The Respondent submitted that at the time of the Applicant’s dismissal, it was a Small Business for the purposes of s.23 of the Act, the Applicant had not completed the minimum employment period pursuant to s.383 of the Act, and thus is not a person protected from unfair dismissal pursuant to s.382 of the Act.

[17] The Respondent submitted that the Applicant’s list of employees was not a correct reflection of the number of employees engaged by the Respondent at the time of the Applicant’s dismissal; and the Applicant has asserted that all of the Respondent’s casual employees are employees for the purposes of s23.(2)(b), which is rejected by the Respondent.

[18] The Respondent submitted that at the time of the Applicant’s dismissal, the Respondent employed twelve (12) employees for the purposes of s.23(4) of the Act. The Respondent provided a list of employees including 11 of the 12 full-time employees identified by the Applicant. The Respondent submitted that the 12th full-time employee identified by the Applicant was not employed by the Respondent at 11 June 2014, the date of the Applicant’s termination. A copy of the employee’s resignation letter dated 20 May 2014 was provided as evidence.

[19] The Respondent provided information with regards to the 6 persons identified by the Applicant as casual employees. The Respondent submitted that 1 of the 6 persons identified by the Applicant was an employee for the purposes of s.23(4) of the Act, that being Ms Currie. Of the 5 remaining, the Respondent submitted that Ms Johnston was terminated on 15 May 2014 and provided a statutory declaration of Ms Johnston to that effect; and that Mr Weynton was engaged through a third party labour hire company. A third party tax invoice was provided to this effect.

[20] Further, the Respondent submitted that Ms Janlewicz was a contractor with no expectation of ongoing employment or contract and that she was previously engaged through a third party contractor. No evidence was provided in relation to the engagement of Ms Janlewicz.

[21] The Respondent submitted that Mr Hayes and Mr Wallace were event contractors rostered for events on an as and when required basis. The Respondent provided a schedule of contracted hours for both Mr Hayes and Mr Wallace, which indicates that invoices were provided to the Respondent for payment in respect of the hours worked.

[22] Based on the information submitted, I am satisfied that the Respondent was a small business employer, employing less than 15 employees at the time of the Applicant’s dismissal. I am satisfied that Ms Johnston was no longer employed at the date of the Applicant’s dismissal. I am also satisfied that Mr Weynton, Mr Hayes and Mr Wallace were engaged as contractors by the Respondent. I make no finding with respect to Ms Janlewicz.

[23] The Applicant has not completed the minimum period of employment, as required by s.383 of the Act and therefore the Applicant is not protected from unfair dismissal in accordance with s.382 of the Act. The Application is therefore jurisdictionally barred. In accordance with s.382, the Application made pursuant to s.394 is dismissed. I Order Accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code C, PR555658>