Ms Brittney Ellick v Investment Rainbow Pty Ltd T/A Michel's Patisserie

[2012] FWA 3680

[2012] FWA 3680

FAIR WORK AUSTRALIA

DECISION

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

Ms Brittney Ellick
v
Investment Rainbow Pty Ltd T/A Michel's Patisserie
(U2012/3241)

COMMISSIONER CARGILL SYDNEY, 30 APRIL 2012

Termination of employment - Jurisdiction.

[1] This decision arises from an application by Ms B Ellick (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of her employment by Investment Rainbow Pty Ltd trading as Michel’s Patisserie.

[2] The application was lodged with Fair Work Australia (FWA) on 5 January 2012. It was listed for conciliation on 7 February 2012. In documentation received by FWA on 30 January 2012 the respondent responded to the claim, Form F3. It also lodged a jurisdictional objection to the claim, Form F4, and requested that this be dealt with first.

[3] The jurisdictional objection is that the respondent is a small business and the applicant had not been employed for the relevant 12 months period as at the date of her dismissal.

[4] This objection was heard by me as part of the jurisdictional roster on 16 March 2012. Because of the impending birth of the applicant’s child she was unable to attend the hearing. In correspondence dated 20 March I provided the applicant with a copy of the transcript of proceedings and asked for her response. Despite follow-up telephone calls and an email from my Associate to the applicant I have not received any response from her.

[5] In her application for a remedy the applicant noted that the date she was employed was “Jan 2011” and that the date she was notified of her dismissal and the date on which it took effect was “22/12/11”.

[6] Prior to proceedings on 16 March 2012 the respondent provided copies of payroll activity statements for the periods 1 November 2011 to 30 November 2011, 1 December 2011 to 31 December 2011 and 1 January 2012 to 31 January 2012. Those statements showed that the number of employees for each of those periods was eight, ten and seven respectively.

[7] At the hearing on 16 March 2012 sworn evidence was given by Ms Grady who is the owner/franchisee of the respondent’s business. She confirmed the contents of those payroll activity statements. Ms Grady also gave evidence that the respondent company has no associated entities. Copies of relevant sections of the Act and the Corporations Act 2001 were provided to Ms Grady and her representative at the start of the hearing and she was questioned about relevant provisions.

[8] Section 382 of the Act provides, among other things, that a person is protected from unfair dismissal if they have completed a minimum employment period with their employer. Section 383 provides that, if the employer is a small business employer, that minimum period is one year, otherwise it is six months. In this case the applicant’s claim indicates that she was employed for less than one year. If the respondent is a small business employer then the applicant has not completed the minimum period and therefore cannot proceed with her claim.

[9] In order to determine whether the respondent is a small business employer it is necessary to consider the provisions of section 23 and the definition of “associated entity” in section 12 of the Act as well as section 50AAA of the Corporations Act 2001. A consideration of those provisions and the material before me, especially the evidence of Ms Grady, satisfies me that the respondent is a small business employer.

[10] As a result I must dismiss the applicant’s claim. An order to this effect is issued in PR523211.

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