Ms Sueanne O'Leary v Johanna Johnson Pty Ltd T/A Johanna Johnson
[2014] FWC 26
•2 JANUARY 2014
[2014] FWC 26 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Sueanne O'Leary
v
Johanna Johnson Pty Ltd T/A Johanna Johnson
(U2013/9921)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 2 JANUARY 2014 |
Application for relief from unfair dismissal - Jurisdictional objection.
[1] I heard this jurisdictional objection to an application for a remedy pursuant to section 394 of the Fair Work Act 2009 (the Act) on 9 August 2013 and 9 December 2013.
[2] On 9 August 2013 I granted permission to appear for Johanna Johnson Proprietary Limited trading as Johanna Johnson (Johanna Johnson) to Mr Georges, a solicitor. Johanna Johnson was then unrepresented for a period. On 9 December 2013 I granted permission to appear for Johanna Johnson to Ms King, a solicitor. Whilst the counting of employees is not a complex issue, determining the status of those persons whose standing was in dispute was complex. I considered a grant of permission to appear appropriate in all the circumstances.
[3] I was satisfied and found that Ms O'Leary was employed by Johanna Johnson for a period just short of 12 months. I relied on Ms O'Leary’s PAYG taxation summary for the year ended 30 June 2012 which showed a commencement date of 15 May 2012 and the evidence was that she received the notice of her dismissal on either 6 May or 7 May 2013. In either event the period of employment was less than 12 months.
[4] It was therefore necessary for me to determine whether or not Johanna Johnson was a small business employer. It alleged that it had fewer than 15 employees at the date of dismissal and that therefore Ms O'Leary’s application, lodged by an employee with less than 12 months employment, was excluded from the jurisdiction of the Fair Work Commission.
[5] At final submissions 12 persons were conceded to be employees by Johanna Johnson. These persons were Lyndel Dowd, Alana Rose Teasel, Marina Sharanova, Sueanne O’Leary, Catherine Johns, Min Fang Wang, Jian Xiong Liang, Lisa Weizenmuller, Molly Simic, Jenny Leung, Krystal Ryan and Natasha Wilkins.
[6] The status of a number of other persons was the subject of dispute. Ms O'Leary cross-examined those witnesses who gave oral evidence. Documents were produced under a Summons to Produce Documents. Ms O'Leary was given non-photocopy access to those documents in Chambers.
[7] Johanna Johnson’s evidence in relation to Olympia Kluga is set out below.
"12. Olimpia Kluba currently works for Johanna Johnson as a casual retail assistant and sometimes, to assist with administrative tasks. Ms Kluba’s work schedule ranges from 1-2 days a week, to not at all.
13 Whether Ms Kluba or Ms Wilkins worked depended upon the level of customer appointments scheduled, holidays of other staff, etc and their weekly and hourly requirements fluctuated significantly.” 1
[8] On the evidence before me, which was not challenged by Ms O'Leary, I was satisfied that Ms Kluba was a casual employee of less than 12 months standing who did not perform work on a regular and systematic basis.
[9] Johanna Johnson’s evidence, without annexures, in relation to Margaret Tully is set out below.
“17. Margaret Tully is a sole trader and provides bookkeeping services to Johanna Johnson on an as required basis. Annexed hereto and marked ‘JJ4’ are copies of:
(a) An invoice from Margaret Tully to Johanna Johnson for services rendered in May 2013; and
(b) A copy of an ABN search for Ms Tully’s business.
18. Margaret Tully is not paid superannuation, annual leave, sick leave or any other employee entitlements.
19. Margaret Tully is not required to work any set hours or days per week and provides bookkeeping services when required by Johanna Johnson but on terms set by her. Ms Tully charges for services based on tasks performed.” 2
[10] On the evidence before me, which was not challenged by Ms O'Leary, I was satisfied that Margaret Tully was not an employee of Johanna Johnson.
[11] Johanna Johnson’s evidence in relation to Susannah McDonald is set out below.
“20. Susannah McDonald is my sister and is not employed by Johanna Johnson. Susannah McDonald is a lawyer that is currently employed full-time by a company in London, where she resides.
21. Susannah McDonald is paid a fortnightly nominal amount for legal services she renders to Johanna Johnson when required, on an ad-hoc basis.
22. Susannah McDonald is not paid superannuation, annual leave, sick leave or any other employee entitlements.” 3
[12] On the evidence before me I was satisfied that Susannah McDonald was not an employee of Johanna Johnson. If I was wrong in this conclusion, and Ms McDonald was at any time an employee of Johanna Johnson, the evidence would not have satisfied me that she was other than a casual employee who did not perform work on a regular and systematic basis.
[13] Johanna Johnson’s evidence, without annexures, in relation to Marita Matheson is set out below.
“14. Marita Matheson is employed by My Locksmith Pty Ltd and provides consulting services to Johanna Johnson, on an infrequent basis, depending on the demands of the business. Annexed hereto and marked ‘JJ3’ are copies of:
(a) Invoice from My Locksmith Pty Ltd to Johanna Johnson for services rendered in May and July 2013; and
(b) Marita’s 2013 group certificate.
15. Marita Matheson is not paid superannuation, annual leave, sick leave or any other employee entitlements.
16. Marita Matheson is not required to work any set hours or days per week and consults as a general manager to Johanna Johnson but on terms set by her.” 4
[14] Ms O'Leary cross-examined Ms Johanna Johnson regarding her arrangements with Ms Matheson. Ms Johnson's evidence was that Ms Matheson performed duties as a general manager, conducting the day to day administration and staff management for Johanna Johnson. Ms Johnson pays My Locksmith Proprietary Limited for Ms Matheson's time. My Locksmith Proprietary Limited is a business conducted by Mr and Ms Matheson and Ms Matheson performs the same services for My Locksmith Proprietary Limited as she does for Johanna Johnson. On balance, on the evidence before me, I was satisfied that Ms Matheson was not an employee of Johanna Johnson and that this arrangement was a genuine contract for services.
[15] Johanna Johnson’s evidence in relation to Maggie Hansdorfer is set out below.
“23. Maggie Hansdorfer resides in the United States of America (‘USA’) and contracts to Johanna Johnson from that country to provide services in the USA, from an office in the USA.
24. Maggie Hansdorfer is required to assist with business development in the USA and also with the running of the USA studio.
25. Depending on demand, Maggie Hansdorfer provides services on a weekly basis and issues an invoice to Johanna Johnson, fortnightly, based on hours of work undertaken.” 5
[16] I accepted the evidence of Ms Johnson that Ms Hansdorfer had been employed as an independent brand manager in the United States of America and was not an employee. On the evidence before me I was satisfied that Ms Hansdorfer was not an employee of Johanna Johnson.
[17] Johanna Johnson’s evidence in relation to Kinga Przeszlo is set out below.
“27. Kinga Przeszlo resides in the USA and contracts to Johanna Johnson from that country to provide services in the USA, from an office in the USA.
28. Kinga Przeszlo is required to assist Maggie Hansdorfer as and when required.
29. Depending on demand, Kinga Przeszlo provides services on a weekly basis and issues an invoice to Johanna Johnson, fortnightly, based on hours of work undertaken.
30. Kinga Przeszlo is not paid superannuation, annual leave, sick leave or any other employee entitlements.
31. On 13 May 2013, Kinga Przeszlo ceased providing services to Johanna Johnson.” 6
[18] I accepted the evidence of Ms Johnson that Ms Przeszlo worked as an assistant to Ms Hansdorfer. I have already determined that Ms Hansdorfer was not an employee of Johanna Johnson. On the evidence before me I was satisfied that Kinga Przeszlo was not an employee of Johanna Johnson.
[19] Johanna Johnson submitted that Moira Hughes was a non-regular and systematic casual employee who was working in a probationary period at the time of Ms O'Leary's dismissal. No evidence was provided to support that submission. I determined that Ms Hughes should be included in the employees of Johanna Johnson.
[20] For these reasons I made the findings set out below and dismissed Ms O'Leary's application on 18 December 2013.
“1. At the time of the termination of Ms O’Leary’s employment Johanna Johnson Pty Ltd T/A Johanna Johnson was a small business employer employing fewer than 15 employees.
2. Ms O’Leary, having been employed for less than 12 months by a small business employer, is excluded from the jurisdiction of the Fair Work Commission in relation to her application.” 7
SENIOR DEPUTY PRESIDENT
1 Exhibit Johnson 1 paras 12 - 13
2 Exhibit Johnson 1 paras 17 - 19
3 Exhibit Johnson 1 paras 20 - 22
4 Exhibit Johnson 1 paras 14 - 16
5 Exhibit Johnson 1 paras 23 - 25
6 Exhibit Johnson 1 paras 27 - 31
7 PR545899
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