Nadine Smarrelli v Melbourne Smile Clinic

[2013] FWC 9821

[2013] FWC 9821

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nadine Smarrelli
v
Melbourne Smile Clinic
(U2013/10863)

COMMISSIONER RYAN MELBOURNE, 13 DECEMBER 2013

Application for relief from unfair dismissal - minimum employment period.

[1] This decision relates to the application made by Ms Nadine Smarrelli pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy on the grounds that the termination of her employment by Melbourne Smile Clinic was harsh, unjust or unreasonable.

[2] The application was lodged on 25 June 2013, 22 days following Ms Smarrelli’s termination on 3 June 2013. Therefore the application is not filed within time.

[3] The Respondent lodged its Form F3 on 26 July 2013 and in it raised the jurisdictional objection that Ms Smarrelli was not protected from unfair dismissal because the respondent was a small business and she had not completed the minimum employment period of 12 months (the jurisdictional objection).

[4] The matter was listed for hearing on 29 November 2013 to determine the jurisdictional objection and whether or not an extension of time would be granted. Directions were issued to the parties to file and serve in relation to both the extension of time issue and the jurisdictional objection.

[5] The Applicant sought an adjournment of proceedings on the morning of the day of the hearing on the basis that she was too ill to attend. The matter was adjourned.

[6] It became evident to me when reviewing the file that whilst directions had been issued by the Commission on 23 September 2013 for the filing and serving of material, those directions had subsequently been amended several times and in so doing it was evident to me that the Applicant may not have been given a proper opportunity to respond to the Respondent’s submissions in support of its jurisdictional objection.

[7] To avoid any doubt that the Applicant was afforded procedural fairness, I issued a Statement and Directions on 29 November 2013 which allowed the Applicant to file and serve any material in response to the jurisdictional objection by 6 December 2013.

[8] The Applicant did not comply with that direction within the time stipulated and several emails were sent to the Applicant by my associate at my direction to ensure that the Applicant had both received and understood the Statement and Directions issued on 29 November 2013.

[9] On 12 December 2013 in response to one of those emails the Applicant acknowledged receipt of the Statement and Directions and conceded that her period of employment was “11 months and 16 days”.

[10] The jurisdictional point to be determined is whether the applicant is a person protected from unfair dismissal.

[11] Section 382 of the Act provides as follows:

“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.”

[12] The meaning of minimum employment period is provided at section 383 of the Act.

“383 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 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.”

[13] Section 23 of the Act sets out the meaning of a small business employer:

“23(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.”

[14] The relevant consideration in these proceedings is whether or not section 382(a) of the Act is satisfied. If the Respondent was at the time of the dismissal a small business within the meaning of section 23 and the applicant was employed by the respondent for less than 12 months then section 382(a) of the Act will not be satisfied and the application will not be able to proceed.

[15] It is the contention of the Respondent that it employed 4 persons at the time of the termination. There was nothing put from the Applicant which refutes this contention.

[16] On the material before me I am satisfied that the Respondent is a small business employer within the meaning of s.23 of the Act. Therefore the minimum period of employment for an applicant for an unfair dismissal remedy is 12 months.

[17] Given that the Applicant has clearly stated in her email of 12 December 2013 that her period of employment was 11 months and 16 days, I find that the Applicant has not completed a period of employment with the Respondent of at least the minimum employment period. I determine that the Applicant is therefore not a person who is protected from unfair dismissal.

[18] The application in this matter is dismissed.

COMMISSIONER

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