Ms Keti Struz v Fitzroy Learning Network Inc T/A Fitzroy Learning Network

[2015] FWC 3688

[2015] FWC 3688

FAIR WORK COMMISSION

DECISION

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

Ms Keti Struz
v
Fitzroy Learning Network Inc T/A Fitzroy Learning Network
(U2015/832)

VICE PRESIDENT WATSON MELBOURNE, 5 JUNE 2015

Application for relief from unfair dismissal - Threshold jurisdictional issue to be determined - Whether employer is small business employer - Whether minimum employment period met - Fair Work Act 2009, ss. 23, 382, 383 and 394.

[1] This decision is an amended version of a decision given in transcript on 29 May 2015 in relation to an unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act) by Keti Struz in relation to the termination of her employment with Fitzroy Learning Network.

[2] The matter concerns a jurisdictional challenge by the Fitzroy Learning Network, who contends that there is no jurisdiction in this matter because Ms Struz has not served the minimum employment period provided in s.382 of the Act. That minimum employment period is either six months or one year, depending on whether the employer is a small business employer: see s.383.

[3] The question whether an employer is a small business employer is to be determined by reference to s.23 of the Act. That section provides that a small business employer, at a particular time, is one that employs fewer than 15 employees at that time. For the purposes of calculating the numbers of employees, all employees including the terminated employees are to be counted but casual employees are not to be counted unless they are employed by the employer on a regular and systemic basis.

[4] Evidence has been led in this matter which indicates that the actual numbers of employees varied considerably over the relevant period and the build-up to that period.  The numbers vary by reference to the operations that are conducted at the particular time, including term time. The numbers vary in particular because of changes in the number of casual employees engaged.  The evidence indicates that in the fortnightly pay period ending 13 February 2015, 16 employees were employed, 10 of whom were casual employees.  The evidence indicates that 5 of those casual employees were not engaged in the first week of that fortnight pay period but were employed in the second week.

[5] The pay period document for 6 February 2015 tendered in evidence does not mention the dismissed employee, Ms Struz, although she was also employed on that day.  The document indicates that the number of employees employed on 6 February, being the date on which Ms Struz’s employment was terminated, was 4 full-time employees (including Ms Struz) and a total of 5 casual employees, being a total of 9 employees.

[6] I accept the submission that some or a number of the casual employees should not be counted in the overall calculation because they were employed on a needs basis and not on a regular and systemic basis.  I also accept the submission that it is necessary to consider the position as at 6 February, being the date of termination, rather than over a longer period where casual employees may come and go over that period.  Having regard to all of that evidence, I am satisfied that the employer, at the relevant time, was a small employer because it employed fewer than 15 employees at the time of termination of Ms Struz’s employment.

[7] It follows from that finding that the minimum employment period for the purposes of s.383 of the Act is one year and the evidence before me establishes that the period of employment of Ms Struz was from 24 April 2014 to 6 February 2015, a period of approximately nine-and-a-half months. Therefore, Ms Struz was not employed for the minimum employment period and is not eligible to make an unfair dismissal application. On the basis of this finding I dismiss the application.

VICE PRESIDENT

Appearances:

No appearance for Ms K. Struz.

Mr R. Jolley for Fitzroy Learning Network.

Hearing details:

2015.

Melbourne.

29 May.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR567909>