Mr Tristan Wootten v Kis Electrical Solutions Pty Ltd
[2023] FWC 1933
•3 AUGUST 2023
[2023] FWC 1933
The attached document replaces the document previously issued with the above code on 3 August 2023.
Paragraph [4] has been corrected to reflect the correct year that the Applicant commenced employment.
Charlotte Smee
Associate to Deputy President Wright
Dated 3 August 2023.
| [2023] FWC 1933 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Tristan Wootten
v
Kis Electrical Solutions Pty Ltd
(U2023/3693)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 3 AUGUST 2023 |
Application for an unfair dismissal remedy - whether the applicant is protected from unfair dismissal - whether the respondent is a small business employer - applicant not employed for minimum employment period - application dismissed
Introduction and outcome
On 1 May 2023, Mr Tristan Wootten (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with KIS Electrical Solutions Pty Ltd (Respondent).
In his application, the Applicant stated that his employment ended on 10 April 2023. Therefore, the application has been made within the 21-day period prescribed by s.394(2) of the FW Act.
On 7 June 2023, the Respondent filed a Form F3 – Employer response to unfair dismissal application (response). The response claimed that the Applicant’s employment does not meet the minimum employment period. This is a matter related to whether the Applicant is protected from unfair dismissal and as such, I am required to consider this before the merits of the application by s. 396(b) of the FW Act.
In summary, I have found that the Applicant was employed from 12 October 2022 to 11 April 2023 by a small business and therefore is not protected from unfair dismissal as he does not meet the minimum employment prescribed by the FW Act. The application is dismissed.
Directions conference
On 16 June 2023, the matter was listed for Member Conciliation and Directions.
On 27 June 2023, I made directions for the filing and serving of materials and set the matter down for hearing at 10:00am on 13 July 2023.
On 4 July 2023 the Applicant filed evidence and submissions.
On 10 July 2023 the Respondent filed evidence and submissions.
On 12 July 2023 the matter was listed for Directions to deal with the Respondent’s application for the matter to be dealt with on the papers. I rejected this application as the matter involved contested facts, so the Commission was obliged by s.397 of the FW Act to hold a conference or hearing in relation to the matter.
After taking into account the views of the Applicant and the Respondent, and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a determinative conference in accordance with s.399 of the FW Act.
Determinative conference
On 4 July 2023, the Respondent’s legal representative provided submissions in relation to the issue of permission to appear. Later that day, the Applicant provided submissions objecting to the Respondent being legally represented at the hearing.
Having considered the submissions of both the Applicant and the Respondent, I determined that allowing the Respondent to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter and that it would be unfair not to allow the Respondent to be represented because it was unable to represent itself effectively. On that basis, I granted the Respondent permission to be represented by a lawyer pursuant to s. 596(2)(a) and (b).
Accordingly, at the hearing on 13 July 2023, the Respondent was represented by Mr Tom Earls, and the Applicant was self-represented.
The Applicant gave evidence on his own behalf. Mr Jose Yuguero gave evidence for the Respondent.
Is the Applicant protected from unfair dismissal?
Section 382 of the FW 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.
“Minimum employment period” is defined in s. 383 of the FW Act which provides:
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 employment” is defined in s.23 of the FW Act which provides:
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, the employee is a regular casual employee of the employer.
(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.
There is no dispute that the Applicant meets the requirements of s.382(b)(i) as his employment with the Respondent was covered by the Electrical, Electronic and Communications Contracting Award 2020.[1]
In relation to s.382(a), the Applicant claimed that he completed a period of employment with the Respondent of at least the minimum employment period. The Applicant relevantly submitted that he was employed for six months, from 10 October 2022 to 10 April 2023, and that the Respondent was not a small business employer at the time of his dismissal.
The Respondent claims that the Applicant did not complete the minimum employment period because he was employed by the Respondent from 14 October 2022 to 10 April 2023, and the Respondent was a small business employer at the time of the Applicant’s dismissal. The Respondent submitted that the Applicant has not completed a one year minimum employment period as required by s.383(b), and, in the event that the Respondent is found not to be a small business employer, he has not completed a six month minimum employment period as required by s.383(a) of the FW Act.
To determine whether the Applicant has completed the minimum employment period, I must first consider whether the Respondent is a small business employer. If I conclude that the Respondent is a small business employer, the one year minimum employment period provided by s. 383(b) applies. If I conclude that the Respondent is a not a small business employer, the 6 month minimum employment period provided by s. 383(a) applies.
Is the Respondent a Small Business Employer?
In the application[2], the Applicant stated that he worked across four sites while employed by the Respondent. Across those four sites, the Applicant saw at least 13 employees who worked on a regular and systematic basis for the Respondent. The Applicant was also aware of at least three other sites where the Respondent had employees performing work. Based on the Respondent’s operations at the other sites, the Applicant assumed these sites would have at least two employees each who work on a regular and systematic basis and who perform work primarily and only at those sites. This means there would have been at least an additional six regular employees that the Applicant did not see, making a total of at least 19 regular and systematic employees at any time. On this basis, the Applicant claimed that the Respondent was not a small business employer.
In the evidence filed by the Applicant[3], he provided the first and last names of eleven employees who worked at the Respondent’s Bega site, the first names of two people who did “Project work including Tooheys (Lidcombe) and at 55 Long Street Smithfield NSW”, the initials of a person worked at Bega and Toohey as a fitter and descriptions of numerous unnamed persons who the Applicant had observed working at the Respondent’s sites.
Mr Jose Yuguero, Managing Director of the Respondent, gave evidence that at the time of the Applicant’s dismissal, the Respondent employed ten employees including himself as a working director, and at least two irregular casual employees.[4] In support of this evidence, Mr Yuguero provided payroll records in relation to the time of the Applicant’s dismissal, and also the week before and after.[5] In relation to three of the persons named by the Applicant as working for the Respondent, Mr Yuguero said that they were employed by contractors, not by the Respondent.[6] Mr Yuguero also gave evidence that here are no associated entities of the Respondent.[7]
I accept that the Applicant was genuine in his belief that the Respondent was not a small business employer and that he had served the minimum employment period required to be protected from unfair dismissal. However, the Applicant’s evidence was limited to his observations of persons performing work for the Respondent and was not privy to the employment status of these persons.
After hearing from Mr Yuguero at the determinative conference, I have no reason to doubt his evidence that a number of the persons identified by the Applicant as working for the Respondent are employed by other parties. I also have no reason to doubt the authenticity of the payroll records that Mr Yuguero provided. In the circumstances I accept that the Respondent employed fewer than 15 employees at the time of the Applicant’s dismissal and that the Respondent was therefore a small business employer within the meaning of s. 23 of the FW Act.
What is the Applicant’s employment period?
Having determined that the Respondent is a small business employer within the meaning of s. 23 of the FW Act, I must consider whether the Applicant has completed the minimum employment period under s.383(b) of the FW Act. As noted above, the minimum employment period for an employee of a small business employer is one year. There is a dispute between the Applicant and Respondent about the length of the Applicant’s employment period but no dispute between the parties that the employment period was less than one year. On one view, it is therefore open to me to dismiss the matter without further consideration.
However, for the reasons that follow, I do not accept the contentions of either party with respect to the Applicant’s employment period so out of an abundance of caution I will proceed to determine the Applicant’s employment period before considering the matter with respect to s.382(a) and s.383(b).
The Respondent provided the Applicant with a contract of employment under cover of a letter dated 10 October 2022[8] and on this basis the Applicant claimed his employment commenced on 10 October 2022. The Respondent claimed that the Applicant commenced employment on 14 October 2022 as this is the first day that the Applicant performed work. It is not in dispute that the Applicant was dismissed by letter dated 10 April 2023.
The Applicant’s first payslip does not show the first date that the Applicant received payment for work performed by the Respondent.[9] The payslip showed that the Applicant received six hours at double time, eight hours at ordinary time and four hours at time and a half for the period from 10 October – 16 October 2022, but without reference to specific dates worked.
Mr Yuguero gave evidence that the Applicant worked a twelve-hour shift on Friday 14 October 2022, followed by a six hour shift on Saturday 15 October 2022.
At 9:46am on 11 October 2022, the Applicant sent the following text message to the Mr Yuguero:
Hi sir, I spoke to my partner regarding the new job. Sorry I can only work day shift, Not afternoon shift at all due to family commitments. If you still need me for any work position then let me know. Thanks again.[10]
Later that day at 1:09pm, Mr Yuguero sent the following text message to the Applicant:
Would you be interested in just doing project work, it's hands on and an energetic environment. 6am to 4pm at most will 6am to 6pm. Weekends will be required during projects but then you get time off between other projects.[11]
At 12:22pm on Wednesday 12 October, 2022, the Applicant sent the following text message to Mr Yuguero:
Hi, I’m in a side street opposite Tooheys at Lidcombe now, Thanks.[12]
Mr Yuguero replied:
Tristian Dude, sorry mate, I failed to press the send late last night. Machines are running today due to production any chance you can come out tomorrow Thursday 6am start. Let me know how you wet with the interview.
The Applicant then sent a further message as follows:
Tomorrow did you want me to come and just do a meet and greet or actual work?? Thanks
Mr Yuguero replied:
Both mate
There was a further text exchange about the work location and what the Applicant should bring.[13]
At 3:05pm on 12 October, 2022, Mr Yuguero sent the Applicant a list of requirements by email for work the following day.[14] The Applicant responded by email at 10:50pm as follows[15]:
Hi Jose,
I have been waiting for your SMS or call back as to what tools I need and clothes I have to wear since this afternoon. I only just randomly checked this email now at 10:45pm just before I was about to go to bed. I don’t have all of these things organised yet because I didn’t hear back from you, plus I didn’t know you had emailed me all this (sic) list of things. I thought something had changed or came up again and you didn’t need me to start tomorrow. Let me know what you want me to do.
Thanks
Tristan
At 6:12am on Thursday 13 October 2022, Mr Yuguero sent the Applicant the following text message:
All good Tristan. No stress, I’ve responded to your email.
Thanks
Jose[16]The text messages exchanged between Mr Yuguero and the Applicant show that the Applicant had not started work by 11 October 2022 and that Mr Yuguero and the Applicant were still negotiating the terms of his employment at that time. However, the text message exchange on 12 October 2022 shows that the Applicant turned up to work on 12 October 2022 and that Mr Yuguero purported to postpone the Applicant’s commencement date to 13 October 2022 after this occurred.
In my view, this shows that the parties had agreed that the Applicant was to commence employment on 12 October 2022 notwithstanding that Mr Yuguero had changed his mind about the commencement date after that agreement and had failed to advise the Applicant before the Applicant arrived at the worksite on 12 October 2022.
According to the contract of employment,[17] the Applicant was employed on a permanent, not a casual basis. Further, the parties agreed that the Applicant would start work on 12 October 2022 and he attended work that day. For those reasons, I find that the Applicant commenced employment with the Respondent on 12 October 2022 and that this date should not be excluded from the Applicant’s service as it was not unpaid leave or an unpaid authorised absence within the meaning of s. 22(2)(b) of the FW Act.
The text messages and emails exchanged between the Applicant and Mr Yuguero appear to show that the Applicant did not attend work on 13 October 2022, then resumed work on 14 October 2022.
In relation to the termination of the Applicant’s employment, I note that the Respondent sent the Applicant a termination letter by email at 9:08pm on 10 April 2023, which was the Easter Monday public holiday.[18] This occurred following a series of text messages between the Applicant and Mr Yuguero in which Mr Yuguero gave no indication to the Applicant that his employment was in jeopardy, and while the Applicant was holidaying in the Gold Coast.[19]
The evidence shows that the Applicant had seen the email by 6:58am on 11 April 2023 when he sent an email to Mr Yuguero, but not earlier.[20] The text exchanges between the Applicant and Mr Yuguero on 12 October 2022 show that the Applicant was readily contactable by text message but not always by email.
For the purpose of determining the date that the dismissal took effect, I rely upon the following observations of the Full Bench in Ayub v NSW Trains[21] in relation to s.394 of the FW Act:
An interpretation of s.394(2)(a) which would have the practical effect of reducing further what is already a very limited opportunity to lodge an unfair dismissal claim would be rejected if another is reasonably available. Our conclusion is that, in respect of a dismissal without notice, s.394(2)(a) is to be interpreted on the basis that the dismissal cannot not take effect for the purposes of Pt.3-2 of the FW Act until an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed. It is in that sense the dismissal is regarded as having been communicated to the employee.
In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal – for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal.[22]
In my view, it is reasonable for the Applicant to have not read an email advising him of his dismissal sent at 9:08pm on a public holiday. In these circumstances, I find that the dismissal took effect when the Applicant responded to the email on 11 April 2023 which shows that he had read it by that date.
I find that the Applicant was given notice of the dismissal at the same time the dismissal occurred. In my view the reference to “immediately before the dismissal” in s.383(a)(ii) means “immediately before the dismissal took effect”. This is consistent with Item 1515 of the FW Act Explanatory Memorandum which indicates that the minimum employment period “is assessed either when the person is given notice of the dismissal, or when the dismissal actually takes effect, whichever happens first.”
For the purpose of s.383, I find that the Applicant’s employment period commenced on 12 October 2022 and ended on 11 April 2023. As this period is less than 12 months, I find that the Applicant has not completed the minimum employment period provided by s.383(b). Further, based on the reasoning of DP Lake in Lee Sherman v NYK Forklift Services,[23] I note that Applicant’s employment period is less than 6 months. On this basis, in the event that I am incorrect in concluding that the Respondent is a small business employer, the Applicant does not satisfy the minimum employment period in s.383(a).
Conclusion
As the Applicant’s employment period is less than 12 months, I find that the Applicant has not completed the minimum employment period under s.383(b) and is therefore not protected from unfair dismissal as he has not met the requirements of s. 382(a) of the FW Act.
The Applicant’s application for an unfair dismissal remedy is therefore dismissed. I order accordingly.
DEPUTY PRESIDENT
Appearances:
T Wootten, Applicant
T Earls, Solicitor for the Respondent
Hearing details:
2023.
Video using Microsoft Teams,
13 July.
[1] Form F3 – Employer response to unfair dismissal application, 3.2.
[2] Form F2 – Unfair dismissal application, 5-9.
[3] Applicant’s Statement of Evidence, 22.
[4] Affidavit of Jose Yuguero sworn on 10 July 2023, 8
[5] Ibid, JY-2. JY-3.
[6] Ibid, 13.
[7] Ibid, 10.
[8] Applicant’s Document List – Documents 1-6.
[9] Ibid, YG-9.
[10] Ibid, YG-6
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Ibid, YG-7.
[15] Ibid, YG-8.
[16] Ibid, YG-6.
[17] Applicant’s Document List – Documents 1-6.
[18] Applicant’s Document List – Documents 42 and 43.
[19] Applicant’s Document List – Documents 41.
[20] Applicant’s Document List – Documents 44.
[21] [2016] FWCFB 5500
[22] Ibid, [50]
[23] [2021] FWC 4148 applying Wilkinson v Skippers Aviation Pty Ltd, PR903635 (AIRCFB, McIntyre VP, Cartwright SDP, Harrison C, 30 April 2001) at [31].
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