Ms Chloe Bri-Anne James v Balmanno Family Trust T/A Free Solar Pty Ltd and Free Solar Personnel Pty Ltd
[2011] FWA 698
•1 FEBRUARY 2011
[2011] FWA 698 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Chloe Bri-Anne James
v
Balmanno Family Trust T/A Free Solar Pty Ltd
and
Free Solar Personnel Pty Ltd (U2010/13867)
COMMISSIONER ROE | BRISBANE, 1 FEBRUARY 2011 |
Unfair dismissal - minimum period of employment.
[1] This is an application for unfair dismissal remedy. The Respondent has raised jurisdictional objection that the Applicant was not employed for the minimum period of employment required under the Fair Work Act 2009 (the Act). The Application for unfair dismissal remedy is made by Ms Chloe Bri-Anne James (the Applicant) in respect of dismissal by Balmanno Family Trust T/A Free Solar Pty Ltd (the Respondent).
[2] The Applicant and the Respondent represented themselves. The Respondent was represented by Mr Craig Balmanno. Mr Balmanno is the Chief Executive Officer and sole director of both Balmanno Family Trust T/A Free Solar Pty Ltd and Free Solar Personnel Pty Ltd.
[3] From 30 March 2009 the Applicant was employed by Free Solar Pty Ltd (ABN 31 915 109 021) and from 30 August 2010 the Applicant was employed by Free Solar Personnel Pty Ltd (ABN 13 145 705 880). The employment of the Applicant with Free Solar Personnel Pty Ltd ceased on 27 October 2010. These facts were agreed to by both the Applicant and the Respondent.
[4] At the commencement of proceedings I determined that the Application be amended to include Free Solar Personnel Pty Ltd (the Respondent). The Respondent and the Applicant agreed that Free Solar Personnel Pty Ltd was in fact the employer of the Applicant at the time the employment ceased. They agreed that the Application should be amended to include Free Solar Personnel Pty Ltd. The Respondent objected to Balmanno Family Trust T/A Free Solar Pty Ltd remaining as a respondent to the proceedings. I reserved my decision in respect to this matter until the end of the proceedings. In the event it was not necessary to make such a determination but for the sake of clarity I find that the Respondent in these proceedings is Free Solar Personnel Pty Ltd.
[5] The Respondent provided advice that he was the sole director of Balmanno Family Trust T/A Free Solar Pty Ltd and Free Solar Personnel Pty Ltd. He confirmed that the companies were engaged in some common work. Personnel engaged by Free Solar Personnel Pty Ltd performed work for Free Solar Pty Ltd including some of the work performed by Free Solar Pty Ltd prior to employees being engaged by Free Solar Personnel Pty Ltd. I am satisfied that the companies are associated entities within the meaning of Section 50AAA of the Corporations Act 2001 and within the meaning of Section 311(6) of the Fair Work Act 2009.
[6] The employer wrote to the Applicant on 30 August 2010 and advised her that:
“Under the new restructure we will be employing all staff in a personnel company called Free Solar Personnel Pty Ltd as of Monday the 30th August 2010. All your entitlements will be transferred from Free Solar Pty Ltd your current employer to Free Solar Personnel Pty Ltd your new employer. We will require each staff member to sign a new Tax File Number declaration form as of Monday and a new Employment Information Sheet. The pay run will stay exactly the same and you will continue to be employed under the same award or basis you are now employed.”
[7] The Respondent did not dispute the fact that the Applicant was employed continuously from 30 March 2009 until 30 August 2010 by Free Solar Pty Ltd (ABN 31 915 109 021) and then continuously from 31 August 2010 until 27 October 2010 by Free Solar Personnel Pty Ltd (ABN 13 145 705 880). The Respondent does not dispute that it is a national system employer and that the Applicant earns less than the high income threshold and that the Respondent is not a small business employer. The Applicant and the Respondent both agreed that the Applicant was employed on a permanent part time basis of 27.5 hours per week. She was not employed as a casual employee. Her employment was regular and systematic throughout the period of engagement.
[8] The Respondent argued that only the period of employment with Free Solar Personnel Pty Ltd can be considered for the purpose of the qualifying period for unfair dismissal jurisdiction.
[9] The relevant sections of the Act are:
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.
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 384(2)(b) only excludes service in respect of a transferring employee in the case of transfer of business where the old and new employers are non-associated entities and where notice is given that service will not count. There was no notice that previous service will not count in the letter of 30 August 2010 and furthermore there is no doubt that the old and the new employers are associated entities. The letter of 30 August 2010 together with the information provided by Mr Balmanno at the hearing are clear evidence of these facts. There is no doubt there was a transfer of business as some of the employees and some of the work transferred. The period of service therefore transfers for the purpose of Section 383 and 384.
[11] I am therefore satisfied that the Applicant was employed for a continuous period of more than six months.
[12] The jurisdictional objection is dismissed. The Applicant is protected from unfair dismissal and the merits of the Applicant can now be heard and determined.
COMMISSIONER
Appearances:
Ms Chole Bri-Anne James on her own behalf.
Mr Craig Balmanno on behalf of the Respondent.
Hearing details:
2011
Brisbane
1 February
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