Ms Jessie Lee Hill v Mast Group Pty Ltd T/A Orgment Consulting

[2014] FWC 6702

[2014] FWC 6702

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Ms Jessie Lee Hill
v
Mast Group Pty Ltd T/A Orgment Consulting
(U2014/10589)

COMMISSIONER CLOGHAN PERTH, 24 SEPTEMBER 2014

Unfair dismissal - jurisdictional objections - genuine redundancy - minimum employment period - Small Business Fair Dismissal Code - application dismissed on transcript.

[1] On 4 July 2014, Ms Jessie Lee Hill (Ms Hill or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from her former employer, Mast Group Pty Ltd T/A Orgment Consulting (Employer).

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] In response to the application, the Employer asserts that:

• the Applicant’s dismissal was a case of genuine redundancy;
• the Applicant’s employment does not meet the minimum employment period; and
• the dismissal was consistent with the Small Business Fair Dismissal Code.

[4] On 14 August 2014, I issued Directions and advised the parties that I intended to deal with the Employer’s jurisdictional objections by way of written submissions. I also advised the parties that should either party wish to challenge the submissions or affidavits of the other party by oral evidence, that party could do so in a hearing.

[5] The Employer provided written submissions on 27 August and 17 September 2014. The Applicant provided her submission on 9 September 2014.

[6] On 18 September 2014, the Applicant sought to challenge the Employer’s submissions by oral evidence. The hearing took place on 22 September 2014.

[7] At the hearing, the Applicant represented herself and gave evidence on her own behalf. The Employer was represented by Mr W Salamone and he gave evidence on behalf of the Employer.

[8] At the conclusion of the hearing, I dismissed the application and advised the parties that I would provide brief written reasons for my decision.

RELEVANT LEGISLATIVE FRAMEWORK

[9] There is no dispute that the Applicant properly made the application in accordance with paragraph 394(2)(a) of the FW Act. Accordingly, the relevant statutory framework for consideration is ss.382, 383, 385 and 23.

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) ...”

“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.”

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

“23 Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) ...”

CONSIDERATION

[10] The Employer’s written submission is that, at the time of the Applicant’s dismissal, it employed a total of 5.4 full-time equivalents (FTE) (6 employees). In addition, there were four (4) owners which it described as “Owner/Non-employee”. At the time of the Applicant’s dismissal, the Employer also engaged the equivalent of two (2) FTEs as contractors (3 persons).

[11] In summary, the Employer submitted that it had a “total team” of 11.4 FTEs comprising of employees, contractors and owners (13 persons). The written submission was confirmed in oral evidence.

[12] While the Applicant challenged the nomenclature of “contractors”, the evidence of the Employer remained intact. Accordingly, I find that, at the time of the Applicant’s dismissal, the Employer was a small business employer pursuant to s.23(1) of the FW Act.

[13] I now turn to the Applicant’s period of employment.

[14] The Applicant commenced employment on 11 November 2013 and ceased on 16 June 2014. Accordingly, I find that the Applicant was employed for less than one (1) year.

[15] As a consequence of my finding in relation to this application in accordance with s.382 of the FW Act, it is not necessary for the Commission to make any determination in relation to whether the dismissal was a genuine redundancy in accordance with s.385(d) of the FW Act.

CONCLUSION

[16] For the above reasons, this is why I advised the Applicant that her application must be dismissed for want of the Commission having jurisdiction to deal with the matter in accordance with s.382(a) of the FW Act. An Order to this effect is now issued with this Reasons for Decision.

COMMISSIONER

Appearances:

J Hill, the Applicant.

W Salamone on behalf of the Respondent.

Hearing details:

2014:

Perth,

22 September.

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<Price code A, PR555834>