Mr Ueta Siteine v A1 Scaffold Group Pty Ltd

[2013] FWC 8942

[2013] FWC 8942

FAIR WORK COMMISSION

DECISION

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

Mr Ueta Siteine
v
A1 Scaffold Group Pty Ltd
(U2013/11615)

VICE PRESIDENT WATSON SYDNEY, 27 NOVEMBER 2013

Application for relief from unfair dismissal - small business employer - minimum employment period not met - genuine redundancy - Fair Work Act 2009 - ss. 23, 383, 389, 394, 396.

Introduction

[1] This decision, edited from a decision given in transcript on 13 November 2013, concerns an application for unfair dismissal remedy made by Mr Ueta Siteine against A1 Scaffold Group Pty Ltd (A1 Scaffold Group) under s.394 of the Fair Work Act 2009 (the Act). The application was made on 18 July 2013. Conciliation did not take place, because of the refusal of the employer to participate.

[2] The matter was heard by way of determinative conference on 13 November 2013. Written submissions and evidence were filed by both parties in advance of the proceedings. At the conference Mrs Anna Siteine appeared on behalf of Mr Siteine, and Mr Chris Dunstan appeared on behalf of A1 Scaffold Group.

[3] In its written submissions, A1 Scaffold Group raised two preliminary jurisdictional issues. The first issue raised was that Mr Siteine has not met the minimum employment period to qualify for relief from unfair dismissal. The second is that the termination of Mr Siteine’s employment was due to genuine redundancy. Pursuant to s.396 of the Act the Commission is required to determine these matters before considering the merits of the application. Mr Dunstan gave evidence and made submissions in support of these two jurisdictional objections. Mrs Siteine cross-examined Mr Dunstan and did not call any additional evidence. She made submissions opposing the jurisdictional objections.

Minimum Employment Period

[4] Mr Dunstan contended that A1 Scaffold Group is a small business employer within the meaning of s.23 of the Act, and that as such the minimum period of employment for Mr Siteine to qualify for relief from unfair dismissal is one year. Mr Dunstan gave evidence and provided payroll documents indicating that at the time of Mr Siteine’s dismissal, A1 Scaffold Group had 14 employees including Mr Siteine. I find that A1 Scaffold Group is a small business employer for the purposes of s.23 of the Act. It follows that pursuant to s.383 of the Act the minimum qualifying period of employment is one year.

[5] The next question is whether Mr Siteine had been employed by A1 Scaffold Group for one year at the time of the termination of his employment. Mr Dunstan gave evidence that he created the A1 Scaffold Group in November 2012 and it commenced trading in December 2012. Mr Dunstan gave evidence that it was a new start up company, and employed Mr Siteine from December 2012 until his employment was terminated by letter dated 9 July 2013. He gave evidence that he had no involvement in a previous company named A1 Scaffolding Pty Ltd that was operated by his half brother. That company had gone into liquidation earlier in 2012, and previously employed Mr Siteine.

[6] Mr Siteine argued that there was a transfer of business between the two similarly named entities and that as such he had been employed for more than one year at the time of the termination of his employment. The evidence before me does not provide any basis for a finding that there was a transfer of business as contended for by Mr Siteine. It follows that Mr Siteine was not employed by A1 Scaffold Group for the minimum employment period, and as such he is not eligible to apply for relief from unfair dismissal.

Genuine Redundancy

[7] Evidence was led and submissions were made on whether the termination of Mr Siteine’s employment was a case of genuine redundancy. Mr Dunstan said that he made four employees redundant because of shortage of work and losses incurred by the business. He carried out a consultative process with the employees concerned. On the basis of that evidence, I find that even if Mr Siteine was found to have been employed for the requisite minimum employment period, the termination of Mr Siteine’s employment was a case of genuine redundancy within the meaning of s.389 of the Act. This finding constitutes an additional ground for dismissing the application.

Conclusion

[8] For the above reasons the application is dismissed.

VICE PRESIDENT WATSON

Appearances

Mrs A Siteine for Mr U Siteine

Mr C Dunstan for A1 Scaffold Group Pty Ltd

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