Mr Trilocknathsing Guddaye v Padmanabham Venkata Lakshmi Mannapuri T/A Tri Orion Pty Ltd

[2014] FWC 463

[2014] FWC 463

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mr Trilocknathsing Guddaye
v
Padmanabham Venkata Lakshmi Mannapuri T/A Tri Orion Pty Ltd
(U2013/11436)

COMMISSIONER CLOGHAN PERTH, 22 JANUARY 2014

Unfair dismissal.

[1] This is an application by Mr Guddaye seeking a remedy for alleged unfair dismissal from Padmanabham Venkata Lakshmi Mannapuri T/A Tri Orion Pty Ltd.

[2] Tri Orion Pty Ltd responded to Mr Guddaye’s application by asserting that the Commission has no jurisdiction to deal with the application because Mr Guddaye has not made his application within the prescribed statutory timeframe and he has also not completed the minimum period of employment to be protected from unfair dismissal.

PROCEDURAL BACKGROUND

[3] On 11 July 2013, Mr Trilocknathsing Guddaye (Mr Guddaye or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from Padmanabhan Venkata Lakshmi Mannapuri T/A Tri Orion Pty Ltd (Employer).

[4] The application is made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[5] The application was the subject of conciliation on 15 August 2013.

[6] On 23 August 2013, the Conciliator forwarded the draft terms of settlement to the parties on the Commission’s standard template. The Conciliator advised the parties that this now concluded his involvement in the application.

[7] On 24 September 2013, the Applicant advised the Commission that, since the verbal agreement, Mr Chinni, the Employer’s Chief Executive Officer had been attempting to make a “time-to-pay” arrangement and he had not “heard from him [Mr Chinni]”.

[8] The Conciliator’s draft Deed of Agreement/Release remained unsigned.

[9] On 2 October 2013, the Applicant requested the Conciliator to refer the matter for hearing into his application.

[10] The application was referred to me for hearing on 7 October 2013. The parties were advised on 8 October 2013 of a conciliation conference on 14 October 2013.

[11] At the conciliation conference on 14 October 2013, the Applicant represented himself and the Employer was represented by Mr Chinni. The conference failed to resolve Mr Guddaye’s application.

[12] Procedural directions were issued to the parties for a scheduled hearing on 21 November 2013. Due to the hospitalisation of the Employer’s representative, the hearing on 21 November 2013 was rescheduled to 16 January 2014.

[13] At the hearing on 16 January 2014, the Applicant represented himself. The Employer was represented by Mr Chinni.

[14] At the conclusion of the hearing, I dismissed, on transcript, Mr Guddaye’s application and advised the parties that I would provide written reasons at a later date. These are my written reasons for dismissing Mr Guddaye’s application alleging that he was unfairly dismissed by the Employer.

RELEVANT STATUTORY FRAMEWORK

[15] For the Commission to have jurisdiction to hear and determine Mr Guddaye’s application it is necessary for the application to be made within 21 days after the dismissal took effect as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[16] Mr Guddaye is protected from unfair dismissal in accordance with s.382 of the FW Act:

“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.”

[17] The minimum period of employment required to be protected from unfair dismissal is contained in s.383 of the FW Act:

“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.”

[18] A small business is defined in s.23 of the FW 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, 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.”

EMPLOYER’S SUBMISSION

[19] The Employer submits that the Commission has no jurisdiction to determine the application as:

● Mr Guddaye has not made his application to the Commission within 21 days after the dismissal took effect; and

● In the event that the Commission finds that Mr Guddaye has lodged his application within 21 days or if the Commission is satisfied there are exceptional circumstances to allow the application to be filed on 11 July 2013, Mr Guddaye has not completed the minimum period of employment (1 year) consistent with the Employer being a small business.

CONSIDERATION

Did Mr Guddaye lodge his application within 21 days after the dismissal took effect?

[20] In Mr Guddaye’s application, he states that he commenced employment with the Employer in October 2012 and was not notified of his dismissal but that it took effect on 15 May 2013.

[21] The Employer submitted correspondence from Mr Chinni to Mr Guddaye dated 7 May 2013, which advises that his employment is terminated with immediate effect. The Employer asserts that whether Mr Guddaye was terminated on 7 May as it contends or 15 May 2013 as the Applicant has written in his application, he has not lodged his application within 21 days of the dismissal taking effect.

[22] Mr Guddaye submitted at the hearing that to him, the correspondence of 7 May 2013 “never existed” 1. No letter was sent to his home address and that “there has been a lot of redirection on that address [the Employer’s post office box], which means if someone sends an email, that email is directly sent to someone else. So technically nothing has been coming to me”2.

[23] The Applicant states that he only became aware that he was dismissed about two (2) weeks prior to his application on 11 July 2013 through a communication from the Commonwealth Department of Immigration and Border Protection (the Department). The communication from the Department essentially indicated that Mr Guddaye was to be deported because, by being dismissed, he was no longer complying with the conditions of his 457 visa. On receiving this information, Mr Guddaye took action to contest his unfair dismissal and two (2) weeks later made application to the Commission.

[24] Mr Chinni submitted that he sent the correspondence of 7 August 2014 to the post office box used by the Employer where Mr Guddaye worked. Further that he had contacted Mr Guddaye on 7 and 23 May 2013. Mr Chinni was unaware of any issue which required the redirection of mail 3.

[25] There is a great deal of uncertainty as to whether Mr Guddaye lodged his application within 21 days after the dismissal took effect. For reasons relating to whether Mr Guddaye completed the minimum period of employment to be protected from unfair dismissal, it is not necessary to make a determinative finding as to whether Mr Guddaye’s application was lodged within 21 days.

Has Mr Guddaye completed the minimum period of employment to be protected from unfair dismissal?

[26] The Employer submits that it is a small business within the meaning of the FW Act.

[27] At the time of Mr Guddaye’s dismissal, the Employer submitted that it employed four employees, including the Applicant.

[28] The Applicant confirmed the Employer’s submission regarding the number of employees it employed 4.

[29] When the Commission pointed out the consequences of Mr Guddaye affirming the Employer’s submission of only employing four employees, the Applicant submitted that the Employer employed more than four employees and asserted it was 9, 10 or 11 employees and referred to an organisation chart.

[30] The Employer responded to Mr Guddaye’s submission by re-affirming that, at the time of Mr Guddaye’s dismissal, it only employed four employees. Further, the organisational chart referred to by Mr Guddaye related to its expected organisation chart as the business matured 5.

[31] The Applicant submits in his application hat he was employed from October 2012 and, as I have already stated, became aware of his dismissal approximately two (2) weeks prior to making his application on 11 July 2013. For the purposes of these reasons for decision, I have taken that date to be 27 June 2013.

[32] In the hearing, when I pointed out to the Applicant that, as a consequence of the Employer being a small business, he had not completed the minimum period of employment (12 months) to be protected from unfair dismissal, he submitted his commencement date in the application was wrong and should be 24 July 2012 when the Employer commenced operations. I indicated to the Applicant that even if this could be proved, it did not demonstrate that he had completed the minimum period of 12 months in a small business to be protected from unfair dismissal.

[33] While the Applicant was involved in the start up and incorporation of the Employer as a director and shareholder, he was unable to demonstrate that he was an employee prior to 24 July 2012.

[34] Having considered the documentation provided to the Commission and the submissions of the parties, I find that the Employer is a small business as defined in s.23 of the FW Act and that Mr Guddaye has not completed the minimum period of employment in accordance with paragraph 383(b) of the FW Act.

CONCLUSION

[35] Irrespective of whether the application was lodged within 21 days after the dismissal took effect, from the documentation provided to the Commission and submissions of both parties, I am satisfied that the Employer is a small business pursuant to the FW Act. Consequently, I find that the Applicant had not completed the minimum period of employment of 12 months to be protected from unfair dismissal. Accordingly, I dismissed the application for want of jurisdiction. An order to effect my decision in the hearing and these Reasons for Decision is now issued.

COMMISSIONER

Appearances:

Mr Guddaye, the Applicant on his own behalf.

Mr Chinni for the Respondent.

Hearing details:

2014:

Perth,

16 January.

 1   Transcript PN73

 2   Transcript PN23

 3   Transcript PN151

 4   Transcript PN87

 5   Transcript PN158

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