Ms Idalia Abreu v Your Sanctuary Day Spa

[2014] FWC 6257

[2014] FWC 6257

FAIR WORK COMMISSION

DECISION

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

Ms Idalia Abreu
v
Your Sanctuary Day Spa
(U2014/6313)

DEPUTY PRESIDENT BOOTH SYDNEY, 16 SEPTEMBER 2014

Application for relief from unfair dismissal - jurisdictional objection - small business employer - minimum employment period.

[1] Idalia Abreu is a hairdresser and make-up artist. She was employed by Your Sanctuary Day Spa for Hair and Body in Paddington, NSW on 21 May 2013. She was dismissed on 26 March 2014 by Robyne Armstrong, the proprietor of the day spa. Ms Abreu has lodged an application for an unfair dismissal remedy with the Fair Work Commission. Ms Armstrong contends that her business is a small business employing less than 15 people and Ms Abreu would need to have served a minimum employment period of one year to be eligible for an unfair dismissal remedy. Ms Abreu contends that the day spa did employ 15 or more employees at the time of her dismissal and that the minimum employment period is 6 months, a period she has served.

[2] It is agreed that Ms Abreu was employed as a casual employee on a regular and systematic basis 1 for approximately 10 months. The issue I must determine is whether Ms Armstong’s business was a small business as defined in the Act.2 If I find that the day spa was a small business at the time of Ms Abreu’s dismissal then Ms Abreu is not eligible for an unfair dismissal remedy because she was employed for less than one year and her application must be dismissed.3 The only question to be determined is whether the day spa employed less than 15 people at the time of the dismissal.

Did the day spa employ less than 15 people?

[3] Ms Armstrong gave evidence that at the time Ms Abreu was dismissed, her day spa employed 5 employees described as full time, part time or regular and systematic casual employees and 2 casual employees described as “irregular”. She said that her cafe employed four regular employees. She named the employees she described as “regular” as:

• Carmel



• Devi



• Stephanie



• Saree



• Sooltana



• Lee



• Randell



• Vina



• Annie

She named the employees she described as “irregular” as:

• Tomako



• Junie

[4] She said that her sister-in-law Maria works in the cafe but is not paid and is not an employee, Ms Armstrong herself does not receive a wage and her office manager, Adele, is a contractor.

[5] Ms Abreu must also be included so on Ms Armstrong’s evidence, at the time of the dismissal, she had 10 employees who are to be counted for the purpose of determining whether her business was a small business.

[6] Ms Abreu contested this list and the following additional names were put to Ms Armstrong in cross examination:

• Carmen



• Sara



• Natsuko



• Julian

[7] Ms Armstrong gave evidence that Carmen, Natsuko and Julian had left before Ms Abreu was dismissed and Sara, along with another person named Gabrielle, were friends of her sister-in-law and were not employees.

[8] Ms Abreu gave evidence to the effect that Tomako was a regular and systematic employee who had worked for 10 months, that Julian and Carmen were still employed when she was dismissed, that Sara was present on the last day that she worked and she believed she was being paid in cash and Adele was working at the time of her dismissal.

[9] If Ms Abreu is correct the number of employees increases to 15.

[10] Due to the factual conflict in this evidence, at the conclusion of the hearing, I asked Ms Armstrong to provide payroll records for the time of the dismissal. These were also supplied to Ms Abreu for her comment.

[11] The payroll summary for the period 22 March 2014 to 31 March 2014, the relevant period, confirmed the list of names Ms Armstrong gave in evidence as regular employees and added Tomako and Junie, a total of 12 employees including Ms Abreu. An invoice from Adele for work performed was also provided and I accept, on the balance of probabilities, that Adele is a contractor and that the other employees named by Ms Abreu in her evidence were not employed at the time of her dismissal.

[12] Ms Abreu commented on the payroll records saying they disclosed the names of additional employees named Charley, Vince and a name that was scratched out. In fact these comments related to a note taken by the pro bono solicitor assisting Ms Armstrong during her evidence and not the payroll records. I give them no weight. In any event one of the words scratched out is the word “Cafe” used as a heading and the name “Vince” was actually the name Vina already counted above. Other names suggested by Ms Abreu in her comments were the same names she gave in her evidence (Carmen, Natsuko, Julian and Sara) and I have already ruled them out.

[13] I conclude that Your Sanctuary Day Spa for Hair and Body is a small business and Ms Abreu has not served the minimum employment period for a small business of 1 year. I order that Ms Abreu’s application for an unfair dismissal remedy pursuant to s.394 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

I Abreu, the Applicant

R Armstrong for Your Sanctuary Day Spa

Hearing details:

2014.

Sydney

25 July.

 1 Section 384 Fair Work Act 2009.

 2 Section 23 Fair Work Act 2009.

 3 Section 382,383 Fair Work Act 2009

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