Muhammet Topdas v BTM Investments T/A Pablo's Vice

[2018] FWC 5818

[2018] FWC 5818

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Muhammet Topdas
v
BTM Investments T/A Pablo’s Vice
(U2018/5574)

DEPUTY PRESIDENT DEAN SYDNEY, 26 SEPTEMBER 2018

Application for an unfair dismissal remedy – minimum employment period.

[1] This is an edited version of a decision which was issued ex tempore on 20 September 2018.

[2] This is an application to the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 for remedy in respect of a dismissal by BTM Investments Pty Ltd, trading as Pablo's Vice (the Respondent). The applicant in the proceedings is Mr Topdas (the Applicant).

[3] The Respondent raised a jurisdictional objection to the application on the grounds that the Applicant had not met the minimum employment period because the Respondent was a small business and the Applicant was a casual employee employed for less than one year.

[4] Section 382(a) of the Act provides that a person is a protected person from unfair dismissal if at the time the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period.  Minimum employment period is defined in s.383 of the Act as follows:

“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.”

[5] There has been no dispute that the Respondent is a small business employer and for the Commission to have jurisdiction to hear the application the Applicant must have met the minimum employment period of one year. While the Respondent indicated that the Applicant was a casual employee, there was no suggestion by the Respondent that the Applicant’s employment was not regular and systematic, or that the Applicant would not have a reasonable expectation of continuing employment on a regular and systematic basis. The Applicant’s evidence in this regard, which I accept, was that he was employed on a regular and systematic basis and did have an expectation of ongoing employment on that basis. 

[6] I note at the hearing that there was no appearance by the Respondent. The Respondent had indicated via email prior to the commencement of the proceedings that he did not intend to appear.

[7] The parties are not in dispute that the Applicant's employment ended on 26 May 2018.  There is a dispute as to the date the Applicant commenced work. The Applicant contends he commenced work in January 2017 and accordingly, has met the minimum employment period. The Respondent contends that the Applicant commenced work on 14 June 2017, therefore not meeting the minimum employment period. In this case, the Applicant only need demonstrate he was employed prior to 26 May 2017, as this would give him at least one year of employment.

[8] Both parties were asked to provide any documentary evidence which supported their contention as to the Applicant's commencement date. The Applicant today has tendered a bundle of documents which is marked exhibit A in the proceedings. Included in that bundle of documents are a number of text messages between the Applicant and the Respondent. In particular, I note the text messages dated Friday 26 May 2017 from the Respondent to the Applicant in the following terms:

“Hi guys, just a reminder Justin will be there at 12.30 for barista training. Saf, if you could let him do the coffees for a couple of hours and just help him with the technique, thanks Bruce.”

[9] Those text messages continue over a longer time period but the Applicant’s evidence is that there is a clear indication that he was employed prior to 26 May 2017, as he was in that text message being asked by the Respondent to assist with the training of a potential new staff member.

[10] The text message exchanges between the Applicant and the Respondent continue on 29 May 2017 through to around 14 June 2017.  There is another text message between the Applicant and Respondent on 14 June in the following terms:

“Hi Saf, could you let me know your last date before you go on holidays and how many hours you will want when you come back, so we can decide how to utilise Justin.  Thanks, Bruce.”

[11] The Applicant submitted he did not have payslips or other records because during his time of employment he was paid cash in hand and not provided with payslips or tax deductions.

[12] He indicated that the only two payslips he had been provided with were in response to a request by the Respondent when he needed to make an application for financial assistance from the University that he was studying at, at the time. He has also given evidence that he sought the assistance of the Fair Work Ombudsman in terms of obtaining copies of his payslips.
[13] Apart from the Applicant’s evidence which he gave during the hearing and in which he confirmed that he had commenced in January 2017, evidence was also given by Ms Emily Fisher. She provided a statement which is marked exhibit 2 in the proceedings and which confirms that the applicant did commence work with the Respondent in January 2017.  She has indicated that she is clear about her recollection of this date and that she swapped shifts with the Applicant from time to time.

[14] I accept the evidence of both the Applicant and Ms Fisher that the start date in this case was sometime in January 2017. The text messages between the Applicant and the Respondent also make it clear that there was an employment relationship in existence prior to 26 May 2017.

[15] Based on the information before me I am satisfied that the Applicant has met the minimum employment period.  The Respondent’s jurisdictional objection is dismissed and the application will be referred to further hearing.

DEPUTY PRESIDENT

Appearances:

S. Topdas, on his own behalf.

Hearing details:

2018.

Sydney,

September 20.

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