Robert Swan v Innovative Hair Loss Solutions
[2011] FWA 328
•18 JANUARY 2011
[2011] FWA 328 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Robert Swan
v
Innovative Hair Loss Solutions
(U2010/7911)
COMMISSIONER GOOLEY | MELBOURNE, 18 JANUARY 2011 |
[1] Mr Robert Swan was employed by Innovative Hair Loss Solutions South Melbourne Pty Ltd from 23 August 2009 until his employment was terminated on 1 April 2010.
[2] Mr Swan lodged an application for relief pursuant to s394 of the Fair Work Act 2009 (“FW Act”) alleging that he was unfairly dismissed by Innovative Hair Loss Solutions. In his application he did not identify his employer’s legal identity. The application was referred to conciliation on 13 May 2010 but Innovative Health Loss Solutions advised that they would not participate in the conciliation. The matter was listed for hearing on 5 and 6 August 2010, however this hearing was adjourned.
[3] On 17 August 2010 Innovative Hair Loss Solutions Pty Ltd made an application for security for payment of costs which was heard by Commission Lewin on 27 August 2010. As a result of that hearing it was agreed that the arbitration hearing would take place by video link between Melbourne and Perth and the application for security for payment of costs was not pursued. 1
[4] The matter was heard by Fair Work Australia on 9 September 2010.
[5] Ms Alexandra McClunie, the Operations Manager, appeared for Innovative Hair Loss Solution South Melbourne and Mr Swan appeared on his own behalf.
Jurisdiction of Fair Work Australia
[6] At the commencement of the hearing Ms McClunie raised a jurisdictional objection to the application. Ms McClunie submitted that Mr Swan had named as his employer Innovative Hair Loss Solutions. Ms McClunie submitted that this was a reference to Innovative Hair Loss Solutions Pty Ltd and that he was not employed by this company but by Innovative Hair Loss Solutions South Melbourne Pty Ltd. 2
[7] Ms McClunie further submitted that Innovative Hair Loss Solutions South Melbourne Pty Ltd was a small business as defined in the FW Act because it never had more than three employees. 3 As Mr Swan had less than 12 months service, it was submitted that Fair Work Australia did not have the jurisdiction to hear the application and that the application should be dismissed.
[8] I asked Ms McClunie if Innovative Hair Loss Solutions South Melbourne Pty Ltd, Innovative Hair Loss Solutions Pty Ltd and Innovative Hair Loss Solutions Brisbane Pty Ltd were associated entities within the meaning of section 50AAA of the Corporations Law. 4
[9] Ms McClunie submitted that the companies employed approximately 20 staff in total but was unable to advise how many full time equivalent employees they had. 5
[10] Ms McClunie submitted that the companies are “not interlinked by law or by structure other than they share one common director Derek Vest. He’s not a director of all the entities, Deborah Vest is a shareholder of some entities and he is a director and it switches between the two under the structure. ... [E]very entity stands alone for the purposes of its business. There are no holding companies, none of them are subsidiary companies, none of them are parent companies.” 6
[11] Mr Swan submitted that at the time of his termination there were 13 to 14 staff employed across Australia but he was not able to say how many full time equivalent employees there were. 7 He was also not able to make any submissions about whether the small business exemption applied.
[12] Given the lack of evidence on these critical matters I made the following directions:
“1. The Respondent file and serve, by 29 September 2010, a statutory declaration setting out the number of effective full time employees employed by Innovative Hair Loss South Melbourne Pty Ltd and any associated entities, and the statutory declaration must clearly set out the relationship between various companies.
2. The Applicant file and serve, by 6 October 2010, any response if necessary.”
[13] On 27 September 2010 Ms McClunie filed a statutory declaration which stated that the companies are not associated entities.
[14] On 1 October 2010 Mr Swan advised Fair Work Australia that he thought that the statutory declaration should have been filed by a director of the company. Mr Swan did not provide any submissions in response to the statutory declaration filed by Ms McClunie.
Conclusion
[15] I find that Mr Swan was employed by Innovative Hair Loss South Melbourne Pty Ltd and that this company is not an associated entity of Innovative Hair Loss Solutions Pty Ltd and Innovative Hair Loss Solutions Brisbane Pty Ltd.
[16] I accept Ms McClunie and Mr Swan’s submissions that Innovative Hair Loss South Melbourne Pty Ltd had less than 15 full time equivalent staff at the date of the dismissal. Given my findings it is not necessary to determine if there were less than 15 full time equivalent staff across the different companies.
[17] On the evidence before me I am satisfied that, at the date of the termination of Mr Swan’s employment, the employer was a small business as defined in the FW Act and at the time of termination Mr Swan had not been employed for the minimum period of employment of 12 months and therefore the application must be dismissed.
COMMISSIONER
Appearances:
R Swan on his own behalf.
A McClunie for Innovative Hair Loss South Melbourne Pty Ltd.
Hearing details:
2010.
Melbourne and Perth (video hearing):
September 5.
1 [2010] FWA 6505
2 Transcript at PN 25
3 Ibid
4 Ibid at PN 46
5 Ibid at PN 41
6 Ibid at PN 47
7 Ibid at PN 51
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