Roman Anderson v Lot 10 Cucina and Bar

[2022] FWC 525

[2022] FWC 525

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Roman Anderson
v

Lot 10 Cucina and Bar

(U2022/1793)

COMMISSIONER PLATT ADELAIDE, 9 MARCH 2022

Application for an unfair dismissal remedy – jurisdictional objection – whether the Applicant had served the minimum employment period – whether the Respondent was a small business employer – objection upheld – application dismissed.

1. On 10 February 2022, Mr Roman Anderson 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 Lot 10 Cucina and Bar (the Respondent) which allegedly took effect on 8 February 2022.  

1. On 19 February 2022, the Respondent filed a Form F3 Employer Response which raised a jurisdictional objection on the basis that Mr Anderson had not completed the minimum employment period (MEP) and was thus not protected from unfair dismissal pursuant to s.382 of the Act.

1. The matter was allocated to my Chambers on 24 February 2022.

1. Directions for the filing of material in respect of the MEP jurisdictional objection only were issued on 28 February 2022. The Hearing was conducted on 9 March 2022 by way of teleconference. A Digital Court Book was compiled from the materials filed by the parties and was distributed prior to the Hearing. I received all of the materials contained in the Digital Court Book.

1. Mr Anderson represented himself and Mr Vincent Nesci represented the Respondent alongside Ms Claire Kelly. Given that both parties were unrepresented I determined to conduct the Hearing by way of determinative conference. All attendees were sworn.

1. The following matters were not in dispute:

·   Mr Anderson was employed for a period of approximately 9 months, having commenced employment on 28 April 2021 and ceased employment on 8 February 2022.  

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

1. Mr Anderson disputed whether the Respondent was a ‘small business employer’ as defined in s.23 of the Act. Mr Anderson submitted that the following 18 persons were employees of the Respondent and that therefore the Respondent was not a ‘small business employer’:

·   Mr Roman Anderson;

·   Mr Vincent Nesci;

·   Ms Claire Kelly;

·   Ms R Nesci;

·   Mr Joshi;

·   Ms Girolamo;

·   Ms Apostolou;

·   Ms Annese;

·   Mr Thomas;

·   Ms Maniapaz;

·   Mr Feldman;

·   Mr Possemato;

·   Mr Bruno;

·   Mr Baldino;

·   Mr McLachlan;

·   Ms Shepperd;

·   Mr Bernardi; and

·   Ms Ran.

1. The Respondent conceded that the following 8 employees were engaged such that they should be included for the purposes of determining whether the Respondent was a ‘small business employer’:

·   Mr Anderson;

·   Mr Nesci;

·   Mr Joshi;

·   Ms Girolamo;

·   Ms Apostolou;

·   Ms Annese;

·   Mr Thomas; and

·   Ms Maniapaz.

1. The Respondent led the following evidence, which was unchallenged by the Applicant:

·   Mr Feldman resigned from his position on 8 December 2021;

·   Mr McLachlan undertook occasional maintenance work for the Respondent, but had not been engaged since November 2021;

·   Ms Shepperd worked her last shift for the Respondent on 16 July 2021; and

·   Ms Rana’s last shift was on 23 September 2021.

1. Given the unchallenged evidence presented by the Respondent, I find that the 4 persons listed above were not employees of the Respondent at the time of the alleged dismissal and therefore should not be included for the purposes of determining whether the Respondent was a ‘small business employer’.

1. There was dispute over whether Ms Kelly and Mr Baldino were employees of the Respondent at the time of the alleged dismissal.

1. The Respondent led evidence that Ms Kelly (who is Mr Nesci’s partner) completed some work for the Respondent, but did so not as an employee and was not paid by the Respondent. Ms Kelly confirmed this position under oath at the Hearing. Mr Anderson contended that Ms Kelly did all of the Human Resources work for the Respondent and that she had worked every weekend since he had been employed with the Respondent, and that he believed that someone who completed such work would be regarded as an employee. Whilst this may be Mr Anderson’s belief, it is open for Ms Kelly to volunteer her services, particularly in light of her relationship with Mr Nesci. I accept the Respondent’s evidence that Ms Kelly was not an employee of the Respondent at the time of the alleged dismissal. As such, Ms Kelly is not to be included for the purposes of determining whether the Respondent was a ‘small business employer’.

1. The Respondent led evidence that Mr Baldino was a contractor who provided services for the Respondent around social media, securing grants for live music and barista training, as well as performing live music at the restaurant. The Respondent filed in evidence invoices that were provided by Mr Baldino for services which were consistent with a contractor relationship. Whilst the Applicant submitted that Mr Baldino was engaged as an employee rather than a contractor, the evidence before me is consistent with a contractor relationship. As such, I find that Mr Baldino was not an employee of the Respondent at the time of the alleged dismissal, and therefore is not to be included for the purposes of determining whether the Respondent was a ‘small business employer’.

1. The Applicant also disputed the evidence of the Respondent in relation to Mr Possemato, Ms Rosa Nesci, Mr Bruno and Mr Bernardi. Even if I were to accept that each of these persons was an employee of the Respondent at the time of the alleged dismissal, it leaves the total number of employees at the time of the alleged dismissal at 12.  This means that taking the Applicant’s case at its highest, the Respondent will still be a ‘small business employer’ as per s.23 of the Act. As such, there is no need for me to make findings in relation to the remaining persons in dispute.

1. There is no contention that there are any associated entitles of the Respondent.

1. I find that at the time of the dismissal (8 February 2022) the Respondent was a ‘small business employer’ as defined by s.23 of the Act, and therefore the MEP under s.383(b) of the Act is one year. Mr Anderson’s service was approximately 9 months.

1. I am satisfied that Mr Anderson 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.

1. As such, Mr Anderson’s application should be dismissed. An Order[1] reflecting this Decision will be issued concurrently.

COMMISSIONER

Appearances:

Mr R Anderson, the Applicant.

Mr V Nesci for the Respondent.

Hearing details:

2022.
Adelaide, by teleconference.
March 9.

[1] PR739156

Printed by authority of the Commonwealth Government Printer

<PR739152>