Pieter Arends v Discount Auto Parts Unit Trust

[2021] FWC 3304

[2021] FWC 3304

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Pieter Arends
v
Discount Auto Parts Unit Trust
(U2021/3795)

COMMISSIONER PLATT ADELAIDE, 10 JUNE 2021

Application for an unfair dismissal remedy.

[1] On 4 May 2021, Mr Pieter Arends lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by his former employer Discount Auto Parts Unit Trust (the Respondent) which took effect on 15 April 2021.

[2] On 11 May 2021, the Respondent filed a Form F3 Employer Response which raised a jurisdictional objection on the basis that Mr Arends had not completed the minimum employment period (MEP) and was thus not protected from unfair dismissal pursuant to s.382 of the Act.

[3] The matter was allocated to my Chambers on 13 May 2021.

[4] Directions for the filing of material and the date of the Hearing were issued on 17 May 2021. The Hearing was conducted on 8 June 2021 by way of teleconference.

[5] Mr Arends represented himself and Mr Edward Gobby Snr represented the Respondent.

[6] The following matters were not in dispute:

•  Mr Arends was employed for a period of 6 months and one day, having commenced employment on 15 October 2020 and ceased employment on 15 April 2021.

•  If the Respondent was a ‘small business employer’ as defined by s.23 of the Act at the time of Mr Arends’ dismissal, the MEP for an unfair dismissal is one year and Mr Arends will not be protected by the unfair dismissal legislation.

[7] Mr Arends disputed whether the Respondent was a ‘small business employer’ as defined in s.23 of the Act. Mr Arends submitted that:

•  Dapco Tyre & Auto Eaton, owned by Kyliban Pty Ltd, is an associated entity of the Respondent, and therefore the four employees of Kyliban Pty Ltd should be included in the Respondent’s tally of employees.

•  There were three people that were employees of the Respondent at the time of the dismissal that were not included in the evidence provided by the Respondent. These employees were Mr Edward Gobby Snr, Mr Bradley Atherton and Mr Robin Page.

•  Including the four employees of Kyliban Pty Ltd and the three employees not listed by the Respondent, the Respondent had 16 employees, and therefore were not a ‘small business employer’ as defined by the Act.

Whether Kyliban Pty Ltd is an associated entity

[8] An associated entity is defined in the Act as having the meaning given by s.50AAA of the Corporations Act 2001. Section 50AAA states:

“Associated entities

(1) One entity (the associate ) is an associated entity of another entity (the principal ) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.

(2) This subsection is satisfied if the associate and the principal are related bodies corporate.

(3) This subsection is satisfied if the principal controls the associate.

(4) This subsection is satisfied if:

(a) the associate controls the principal; and

(b) the operations, resources or affairs of the principal are material to the associate.

(5) This subsection is satisfied if:

(a) the associate has a qualifying investment (see subsection (8)) in the principal; and

(b) the associate has significant influence over the principal; and

(c) the interest is material to the associate.

(6) This subsection is satisfied if:

(a) the principal has a qualifying investment (see subsection (8)) in the associate; and

(b) the principal has significant influence over the associate; and

(c) the interest is material to the principal.

(7) This subsection is satisfied if:

(a) an entity (the third entity) controls both the principal and the associate; and

(b) the operations, resources or affairs of the principal and the associate are both material to the third entity.

(8)  For the purposes of this section, one entity (the first entity ) has a qualifying investment in another entity (the second entity ) if the first entity:

(a)  has an asset that is an investment in the second entity; or

(b)  has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.”

[9] During the Hearing, Mr Gobby Snr gave evidence that:

•  He is a director of Trober Pty Ltd.

•  Trober Pty Ltd own Dapco Tyre & Auto Bunbury and Australind.

•  Dapco Tyre & Auto Eaton is owned by Kyliban Pty Ltd and is a franchisee under a franchise agreement with Trober Pty Ltd.

•  He is not a director of Kyliban Pty Ltd.

•  Neither he nor Trober Pty Ltd exercise any control over Kyliban Pty Ltd.

•  He has no investment in Kyliban Pty Ltd.

•  The franchising agreement between Trober Pty Ltd and Kyliban Pty Ltd is primarily for improved purchasing power, and Kyliban Pty Ltd acts autonomously.

[10] Mr Gobby’s evidence was uncontested by the Applicant.

[11] I am satisfied on the evidence provided that Kyliban Pty Ltd, as a franchisee, is not an associated entity for the purpose of the Act, and therefore the four employees of Kyliban Pty Ltd should not be counted to the total number of employees of the Respondent.

Whether Mr Gobby Snr, Mr Atherton and Mr Page were employees of the Respondent at the time of the dismissal

[12] Mr Arends listed three people (Mr Gobby Snr, Mr Atherton and Mr Page) who were not listed by the Respondent as employees.

[13] The Respondent provided evidence that Mr Atherton and Mr Page were casual employees and received their last payslips on or before 3 March 2021. 1 This evidence was not contested by Mr Arends.

[14] Mr Gobby Snr provided evidence that as director of the Respondent, he did not earn wages or salary, and instead took drawings, and as such was not an employee of the Respondent. This evidence was not contested by Mr Arends.

[15] As a result of the evidence provided by the Respondent, I was satisfied that the Respondent had 9 employees at the time of the dismissal. As such, the Respondent is correctly defined as a ‘small business employer’ under s.23 of the Act, and the MEP under s.383(b) of the Act is one year. This was not contested by Mr Arends when put to him.

[16] I am satisfied that Mr Arends did not meet the minimum employment period as defined in s.383(b) of the Act, and as such is not protected from unfair dismissal under s.382.

[17] As such, Mr Arends’ application should be dismissed. An Order 2 reflecting this Decision will be issued concurrently.

COMMISSIONER

Appearances:

P Arends, the Applicant.

E Gobby for the Respondent

Hearing details:

2021.
Adelaide:
June 8.

Printed by authority of the Commonwealth Government Printer

<PR730564>

 1   Exhibit R3

 2   PR730563