Ms Elizabeth Heaney v Ocean Reef Medical Centre

[2016] FWC 232

[2016] FWC 232

FAIR WORK COMMISSION

DECISION

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

Ms Elizabeth Heaney
v
Ocean Reef Medical Centre
(U2015/12628)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 13 JANUARY 2016

Application for relief from unfair dismissal.

[1] Ms Elizabeth Heaney alleged the termination of her employment by Marina Boulevard Medical Services Pty Ltd trading as Ocean Reef Medical Centre was unfair. In her application she advised that she commenced employment in November 2014 and she was given notice of termination on 5 November 2015.

[2] In the employer response Ocean Reef stated that Ms Heaney commenced employment on 7 November 2015 and agreed that notice of termination was given on 5 November 2015. It objected to Ms Heaney’s application on the basis that it was a small business and Ms Heaney had not served the minimum employment period.

[3] In the material filed by Ms Heaney she accepted that her commencement date was 7 November 2015 and that she was given notice of termination on 5 November 2015 but she said because she was given a week’s pay in lieu of notice her dismissal took effect on 12 November 2015.

[4] The issue to be determined is whether Ocean Reef is a small business.

[5] A small business is defined in s.23 of the Fair Work Act 2009 (the Act). A small business has fewer than 15 employees. For the purpose of calculating the number of employees regard must be had to any employees of associated entities.

[6] In the material filed by Ms Heaney she alleged that Ocean Reef had eight doctors working at the premises as well as three nurses, four reception staff and one practice manager. In addition she alleged that there were three medical centres within the group namely Ocean Reef, Key Largo and BMI Clinic. Ocean Reef advised that it had eight employees but did not address the statements set out above. As a consequence I directed that the relevant officer of Marina Boulevard Medical Services Pty Ltd provide a statutory declaration that advised if it had any associated entities and, if there were, the names of those businesses and how many employees they had. This direction was not complied with as no statutory declaration was filed however material was filed by Mr Mark Robins the Practice Manager with Ocean Reef.
[7] Mr Robins gave sworn evidence that Ocean Reef, Key Largo and BMI were all separate entities under individual ownership structures. He tendered the ASIC extracts for each company. The information disclosed that the only commonality was that Dr Leonard Henson was a 50% shareholder of Marina Boulevard Medical Services Pty Ltd and the sole shareholder of BMI. He is an office holder of both.

[8] Key Largo had no common shareholders or directors with the other companies, though Mr Robins, who is the director and sole shareholder of Key Largo, is employed by Ocean Reef. It was his evidence that the practice management and some administration for Key Largo is subcontracted out by Ocean Reef and invoices are issued for the work. Further nursing expertise is contracted in from BMI to Ocean Reef and invoiced accordingly.

[9] Mr Robins tendered a list of employees of Ocean Reef at the relevant time. It was his evidence that the doctors listed by Ms Heaney were not employees of Ocean Reef. It was his evidence that the doctors, apart from a trainee doctor, were clients of Ocean Reef in that they leased rooms from Ocean Reef and Ocean Reef invoiced them for services provided. It was his evidence that the doctors determined their own hours of work, controlled their own work, and they were able to work at other clinics. He said they were self employed with their own ABNs and the doctors billed the patients either directly or via Medicare. He said they were not paid wages or superannuation by Ocean Reef and Ocean Reef had no taxation obligations for them.

[10] Dr Sauzier gave evidence that she was a contractor to Ocean Reef and BMI. It was her evidence that she did the payroll at BMI and that BMI had four employees.

[11] I am prepared for the purpose of this decision to assume that Ocean Reef and BMI are associated entities. I do so on the basis that Dr Henson controls both Ocean Reef and BMI. 1

[12] Ms Heaney submitted that the doctors should be included as employees because they had regular hours of work and regular rooms; they worked at the medical centre and without them there would be no business. Ms Heaney was not familiar with the contractual arrangements between the doctors and Ocean Reef. Mr Robins submitted that Ocean Reef exercised no control over the work performed by the doctors including when and for how long they worked. Ms Heaney submitted that Ocean Reef exercised some control because if issues were raised about the doctors then Mr Robins raised the issues with them.

[13] I accept the evidence of Mr Robins that the doctors were not employees of Ocean Reef. I accept his evidence that at the time Ms Heaney was given notice of termination Ocean Reef had eight employees. I accept the evidence or Dr Sauzier that BMI employed four employees. In those circumstances I find that Ocean Reef was a small business.

[14] An employee is required to have served six months (one year if employed by a small business) employment to be protected from unfair dismissal. Section 383 of the Act provides as follows:

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.

[15] In determining whether Ms Heaney has served the minimum employment period, no assessment has been made about the merits of her case. The Commission has no discretion to waive the requirements of the Act.

[16] I find that the one year period ended at midnight on 6 November 2015. That Ms Heaney was paid in lieu of notice does not change the date she was given notice of the dismissal. As Ms Heaney was given notice of termination prior to this time she was not protected from unfair dismissal and her application must be dismissed. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

E. Heaney on her own behalf.

M. Robins for the Respondent.

Hearing details:

2016.

Melbourne and Perth.

12 January.

 1   S.s50AAA(7) , s.50AA and s.64A and Budden v Finke Enterprises Pty Ltd[2015] FWC 8675.

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