Paula van Aalderen v VA Holdings Pty Ltd

[2023] FWC 2869

[2023] FWC 2869

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Paula van Aalderen
v

VA Holdings Pty Ltd

(U2023/6162)

DEPUTY PRESIDENT EASTON SYDNEY, 31 OCTOBER 2023

Application for an unfair dismissal remedy – minimum employment period – whether the Respondent is a small business employer – group of companies – employees engaged by three different companies in the group – positive evidence led by the employer and tested by the employee – 14 employees in total – Respondent is a small business employer – minimum employment period not met – application dismissed.

1. On 7 July 2023 Ms Paula van Aalderen made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) for a remedy, alleging that she had been unfairly dismissed from her employment with VA Holdings Pty Ltd.

1. Ms van Aalderen was employed by VA Holdings for nine months from September 2022 to June 2023.

1. Under sections 382 and 383 of the Fair Work Act 2009 (Cth) (FW Act) Ms van Aalderen is only entitled to make her unfair dismissal claim if she has served the ‘minimum employment period’. The minimum employment period is either 6 months or 12 months, depending on whether the employer is a “small business employer” (per s.383).

1. “Small business employer” is defined in s.12 and s.23 of the Act as follows:

   “23        Meaning of small business employer

   (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.

   (2)  For the purpose of calculating the number of employees employed by the employer at a particular time:

   (a)  subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

   (b)  a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer.

   (3)  For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

   (4)  To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee's employment, the employees that are to be counted include (subject to paragraph (2)(b)):

   (a)  the employee who is being dismissed or whose employment is being terminated; and

   (b)  any other employee of the employer who is also being dismissed or whose employment is also being terminated.”

2. If VA Holdings is a small business employer then the minimum employment period is 12 months and Ms van Aalderen’s claim must be dismissed.

1. A hearing took place on 27 September 2023 to allow the parties to lead evidence and make submissions on whether VA Holdings was a small business employer and correspondingly whether Ms van Aalderen had served the minimum employment period.

1. VA Holdings is a company within a group of companies.

1. Mr Hoang Long Vu is a director of VA Holdings and other companies. Mr Vu provided evidence that only three companies in the group employ staff: Stratton Equity, Granton Civil, and VA Holdings (trading as Granton Homes).

1. On Mr Vu’s evidence there were 14 employees at the time of Ms van Aalderen’s dismissal employed across three different corporate employers.

1. According to Mr Vu the other companies in the group are either dormant or are corporate vehicles for property development projects.

1. Ms van Aalderen disputed VA Holdings’ assertion that it was a small business employer.

1. I appreciate that Ms van Aalderen was in a difficult position in contesting VA Holdings’ assertions about the number of employees within the group. Ms van Aalderen could only draw from and refer to her own observations about the people she understood were employed within the group.

1. Ms van Aalderen represented herself and did not ask for an order that VA Holdings produce documents that might be relevant to the matter in contest.

1. Nonetheless VA Holdings did provide some evidence about the people it employed, either directly or through related companies, at the time Ms van Aalderen was dismissed. VA Holdings provided evidence by way of screenshots from its accounting and payroll software of lists of people it says were employed at the time Ms van Aalderen was dismissed.

1. Mr Vu gave sworn evidence about precisely who was employed by each entity.

1. Ms van Aalderen primarily worked from home on the NSW Central Coast and visited VA Holdings’ premises infrequently.

1. From her observations and her online investigations, Ms van Aalderen listed 23 people that she said were employed within VA Holdings’ group of companies. In Ms van Aalderen’s list there was a 24^th entry, being “Multiple people in the phone/marketing room (Names unknown).”

1. VA Holdings shares office space in commercial premises in the Sydney CBD with an unrelated company.

1. At the hearing on 27 September 2023 Ms van Aalderen asked Mr Vu in cross-examination about some but not all of the additional names on her list.

1. I am satisfied with Mr Vu’s explanations for the differences between the workers on VA Holdings’ lists and the workers on Ms van Aalderen’s list.

1. Some workers on Ms van Aalderen’s list were employed by the company that shares office space with VA Holdings. Some of the people identified by Ms van Aalderen provided services to VA Holdings at the shared office, such as receptionist services. It is understandable that Ms van Aalderen thought these people were her co-workers but I accept Mr Vu’s evidence that they were not employees of VA Holdings or of any of its related companies.

1. Some people on Ms van Aalderens list appear on VA Holdings’ website as members of its “team.” Mr Vu said that the group photo on VA Holdings’ website was taken in 2016. Mr Vu was able to identify that of the 16 people in the photo, apart from himself, only one was employed within the group of companies in 2023 when Ms van Aalderen was dismissed.

1. Others were described on VA Holdings’ website as “managers”. At the hearing Ms van Aalderen, quite reasonably, questioned Mr Vu on the number of people each of the “managers” actually supervise. Of the three “managers” shown on the employer’s website one manager supervises one of the other two managers, and none of the three managers supervise any other people.

1. In this matter VA Holdings led positive and specific evidence of each of the employees it says are employed within the group of companies. Ms van Aalderen tested that evidence as she is entitled to do. After considering the evidence before me, as tested, I am satisfied that VA Holdings was a small business employer at the time that Ms van Aalderen was dismissed.

1. Therefore, Ms van Aalderen is not able to make her unfair dismissal application because she has not completed the 12-month minimum employment.

1. I have separately made an order dismissing Ms van Aalderen’s application (PR767817).

DEPUTY PRESIDENT

Appearances:

P van Aalderen, Applicant
L Vu for the Respondent

Hearing details:

2023.
Sydney (By Video using Microsoft Teams)
September 27.

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<PR767816>