Ms Jazz Fisher v M and D Employment Services Pty Ltd

[2010] FWA 3588

[2010] FWA 3588

FAIR WORK AUSTRALIA

DECISION

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

Ms Jazz Fisher
v
M & D Employment Services Pty Ltd
(U2010/6626)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 13 MAY 2010

Termination of employment – minimum employment period – small business employer – 14 or fewer employees.

[1] On 26 February 2010, Ms Jasminta Fisher (“the Applicant”) lodged an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (“the Act”). The Respondent was M & D Employment Services Pty Ltd, which moved a motion to dismiss the application on the ground that the Applicant had not completed the minimum employment period as defined under the Act.

[2] To that end, I requested that the Respondent provide appropriate evidence of that claim.

[3] Mr Bryant of the Respondent subsequently provided a statutory declaration, received on 5 May 2010.

[4] Mr Bryant attested to the following matters in his statutory declaration:

• That the Applicant was employed from 20 July 2009 to 12 February 2010;



• That “my company had exactly 15 fulltime employees as per the calculation”.

[5] Mr Bryant has persistently objected to the Applicant’s claim proceeding on the basis that the Respondent is a small business employer. For Mr Bryant’s benefit, I will set out the relevant issues below.

[6] On the basis of Mr Bryant’s statutory declaration, it appears that the Employer is not a small business employer within the definition of Schedule 12A of the Fair Work (Transitional Provisions & Consequential Amendments) Act 2009 (“FWTPC Act”). Schedule 12A of the FWTPC Act reads as follows:

1 Meanings of employee and employer

In this Schedule, employee and employer have their ordinary meanings.

2 Meaning of small business employer, for unfair dismissal purposes, prior to 1 January 2011

(1) For the purposes of the application of Part 3-2 of the FW Act in relation to the dismissal of a person before 1 January 2011, a national system employer is a small business employer if, and only if, the employer’s number of full-time equivalent employees, worked out under this item, is less than 15 at the earlier of the following times (the notice or dismissal time):

(a) the time when the person is given notice of the dismissal;

(b) immediately before the dismissal. (my emphasis)

[7] As the Respondent is not a small business employer and the Applicant was engaged for more than 6 months, it appears the Applicant has met the minimum employment period as set out in s.383 of the FW Act. This section states:

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.

[8] The Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 Supplementary Explanatory Memorandum relevantly reads as follows:

Unfair dismissal – Transitional definition of small business employer

“An amendment is proposed to provide a transitional definition of small business employer (i.e., less than 15 full-time equivalent employees) until 1 January 2011 for unfair dismissal purposes. This amendment gives effect to the agreement reached between the Government and Senator Fielding to secure passage of the now Fair Work Act 2009 (FW Act). The calculation of the number of full-time equivalent employees is based on the number of ordinary hours of an employer’s employees over the previous 4 weeks. Where an employee has been on leave associated with the birth or adoption of a child for more than 4 weeks, their hours of leave are excluded from the calculation.” (my emphasis)

[9] The Supplementary Explanatory Memorandum supports the plain words of Schedule 12A of the FWTPC Act.

[10] In order to be a small business within the above discussed meaning of the Act, an employer must employ, in effect, 14 or fewer employees. Because the Respondent, on its own evidence, employs 15 employees, it cannot be taken to be a small business employer for the particular purpose it seeks.

[11] On 5 May 2010 I wrote to the Respondent seeking to clarify my understanding of Mr Bryant’s statutory declaration and asked him to bring any matters to my attention in the event that I had misunderstood his evidence by 10 May 2010. I advised the Respondent that the Respondent’s jurisdictional objection would be dismissed if I did not hear from the Respondent by this time. The Respondent did not provide a response in relation to its statutory declaration by this date.

[12] The Respondent’s objection is therefore dismissed.

SENIOR DEPUTY PRESIDENT

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