Ms Slavica Ristoska v SMR Cleaning & Maintenance

[2013] FWC 7163

[2013] FWC 7163

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Ms Slavica Ristoska
v
SMR Cleaning & Maintenance
(U2013/961)

COMMISSIONER LEWIN MELBOURNE, 1 OCTOBER 2013

Alleged unfair dismissal - application for relief - jurisdictional objection - small business - minimum period of employment - question of fact - date of commencement - objection dismissed.

Introduction

[1] This Decision concerns an application (the application) under s.394 Fair Work Act 2009 (the Act), for relief in relation to the termination of the employment of Ms Slavica Ristoska, by SMR Cleaning & Maintenance (SMR).

[2] The matter was heard on 13 September 2013 at Melbourne. Ms Ristoska was self represented at the hearing and provided submissions and evidence through a Macedonian Interpreter, who holds appropriate certification of the National Accreditation Authority for Translation and Interpretation. Mr Steve Cosmos, a Director of SMR appeared for the Respondent and gave evidence.

Jurisdictional Objection

[3] SMR has objected to the Commission dealing with the application on the ground that Ms Ristoska did not satisfy the minimum employment period prescribed by s. 383 (b) of the Act, and was therefore not a person protected from unfair dismissal at the time of the termination of her employment.

[4] The Respondent submitted that, at the time Ms Ristoska’s employment with SMR was terminated, the company had 12 employees, therefore SMR was a small business employer as defined by s.23 of the Act at the relevant time and the provisions of s. 383 (b) apply, such that, for Ms Ristoska to have been a person protected from unfair dismissal at the relevant time, Ms Ristoska must have completed a minimum employment period of 12 months with SMR. It is not disputed by Ms Ristoska that the SMR is a Small Business employer.

[5] Ms Ristoska was a permanent part time employee engaged as a cleaner by SMR. Ms Ristoska submitted in the application that her employment commenced in February 2012. This was disputed by SMR who submitted that Ms Ristoska commenced employment on 29 May 2012.

[6] The last day upon which Ms Ristoska was rostered and performed work for SMR was 5 March 2013. This was the same day she was notified of the termination of her employment by SMR.

Statutory Provisions

[7] It is appropriate at this point to set out Division 2 - Protection from Unfair Dismissal - Part 3-2 Unfair Dismissal of Chapter 3 of the Act.

Division 2—Protection from unfair dismissal

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) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Note: High income threshold indexed to $123,300 from 1 July 2012

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.

384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.

[8] For the purposes of this decision I find that, for Ms Ristoska to be a person protected from unfair dismissal, she must have completed a minimum period of employment of 12 months.

The evidence

[9] Three persons gave evidence at the hearing, they were Mr Stephen Cosmos, Ms Slavica Ristroska and Ms Zora Pavloska. The question before the Commission to be determined by reference to this evidence is one of fact. That is, did Ms Ristoska commence employment with SMR on or prior to 5 March 2012?

Mr Cosmos’ Evidence

[10] Mr Cosmos gave evidence in chief that he was the person in SMR who engaged Ms Ristoska in 2012, as a result of a referral from a friend of Ms Ristoska, who was working for SMR at the time. In the course of his evidence Mr Cosmos submitted an employee engagement form, marked Exhibit R1, dated 29 May 2012. This is the date that Mr Cosmos contends Ms Ristoska commenced employment with SMR.

[11] During his evidence Mr Cosmos was questioned by the Commission about his knowledge of and interaction with Ms Ristoska in 2012, prior to 29 May. Mr Cosmos recalled that he had seen Ms Ristoska with a friend of her’s “possibly a couple of times.” Mr Cosmos could not recall the relevant circumstances in which this had occurred. The following evidence is informative in this respect.

THE COMMISSIONER: So did you ever see Ms Ristoska in 2012 prior to 29 May?

MR S. COSMAS: Yes, I did.

THE COMMISSIONER: Under what circumstances?

MR S. COSMAS: Just with her friend.

THE COMMISSIONER: With her friend?

MR S. COSMAS: Yes.

THE COMMISSIONER: When you say with her friend, was that at any particular place?

MR S. COSMAS: No, just - not really. Can’t really think at the moment whereabouts.

THE COMMISSIONER: Right. How many times would you have seen her with her friend prior to 29 May?

MR S. COSMAS: Probably a couple of times.

THE COMMISSIONER: Would that be during working hours or at other times?

MR S. COSMAS: No, just other times.

THE COMMISSIONER: Outside working hours?

MR S. COSMAS: Yes.

[12] Mr Cosmos provided evidence that Ms Ristoska had worked for SMR in 2010 and that she had left the employment and returned to commence new employment two years later in 2012. 1 This was not disputed by Ms Ristoska.

[13] As the parties were self represented it was necessary to guide appropriate cross examination of Mr Cosmos by Ms Ristoska, in order that Mr Cosmos should have the opportunity to deal with whatever would emerge for Ms Ristoska’s evidence in chief, in due course.

[14] When cross examined about paying Ms Ristoska cash when another employee was on leave, Mr Cosmos stated ‘I don’t deny it but I can’t recall it’ and that he would have to check his records. The following extract form transcript of 13 September 2013 is informative on this point.

THE COMMISSIONER: Are you able, Ms Ristoska, to recall when you were engaged because you could put it to Mr Cosmas that you were engaged on a particular day or a particular time or a particular place on a certain date.

THE INTERPRETER: I did start to work in February because somebody went on holidays and he was paying me cash.

THE COMMISSIONER: What do you say to that, Mr Cosmas?

MR S. COSMAS: I can’t recall it.

THE COMMISSIONER: Do you deny it?

MR S. COSMAS: I don’t deny it but I can’t recall it.

Ms Ristoska’s evidence

[15] Ms Ristoska’s evidence was that she commenced work with SMR in February 2012. Ms Ristoska gave evidence that she came to be employed because she asked her friend, Ms Zora Pavloska, if there was any work with SMR. Ms Ristoska informed the Commission that Ms Pavloska was present in the court. At this point Ms Pavloska was asked to leave the Court while Ms Ristoska gave evidence.

[16] Ms Ristoska’s evidence was that she commenced employment in February 2012, whilst Ms Pavloska took leave to prepare for a wedding. Ms Ristoska’s evidence is that she then continued working for SMR up until the time she was dismissed. Ms Ristoska informed the Commission that she was paid in cash by Ms Pavloska for the time Ms Pavloska was on leave and that she did not have any record of that payment. 2

Ms Pavloska’s evidence

[17] In giving evidence, Ms Pavloska provided the Commission with information about the employment relationship between Ms Ristoska and SMR. Ms Pavloska was an employee of SMR at the time Ms Ristoska claims to have commenced her employment. Ms Pavloska informed the Commission that Ms Ristoska commenced with SMR two weeks before 18 February 2012 and performed the work Ms Pavloska would have performed but for her absence on leave and continued to do so for one week after 18 February 2012, until 29 February 2012. Ms Pavloska told the Commission that Mr Cosmos gave her cash to pay Ms Ristoska for the work she completed whilst Ms Pavloska was on leave. Ms Pavloska testified that following her leave, Ms Ristoska continued to work for SMR at Lalor High School, where Ms Pavloska worked with her until the termination of her employment. 3

[18] When asked whether he would like the opportunity to cross examine Ms Pavloska or Ms Ristoska, Mr Cosmos declined.

Decision

[19] I accept the evidence of Ms Ristoska and Ms Pavloska. I consider the evidence of Mr Cosmos to be inaccurate. It seems to me more probable than not that Exhibit R1 was completed after Ms Ristoska commenced employment. In my view, Mr Cosmos’ recollection of the date of commencement of Ms Ristoska is faulty.

[20] On the evidence before me, I find, on the balance of probabilities, that Ms Ristoska commenced employment with SMR on or around 4 February 2012.

[21] Consequently, I find that Ms Ristoska completed the relevant minimum period of employment on or around 4 February 2013 and before 5 March 2012.

[22] I therefore find that, at the time of the termination of her employment, on 5 March 2013, Ms Ristoska was a person protected from unfair dismissal.

[23] The jurisdictional objection is dismissed. An Order will issue accordingly.

Appearances:

Ms S Ristoska self represented Applicant

Mr S Cosmos self represented Respondent

Hearing details:

Before Commissioner Lewin

2013

Melbourne:

13 September 2013.

 1   PN 239

 2   PN353

 3   PN 407 - 419

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