Sally Hill v Alexandra Newspapers Pty Ltd
[2023] FWC 2451
•22 SEPTEMBER 2023
| [2023] FWC 2451 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sally Hill
v
Alexandra Newspapers Pty Ltd
(U2023/6604)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 22 SEPTEMBER 2023 |
Application for an unfair dismissal remedy– jurisdictional objection – whether small business employer - whether minimum employment period met – employer found to be a small business employer - minimum employment period of twelve months not met – jurisdictional objection upheld – application dismissed.
Introduction
On 19 July 2023, Ms Sally Hill (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment with Alexandra Newspapers Pty Ltd (the Respondent) on 28 June 2023 was unfair. The Applicant seeks an order for compensation.
On 8 August 2023, the Respondent filed its Form F3 response to the unfair dismissal application in which it raised two jurisdictional objections to the application, that being the employer is a small business employer, that the employer complied with the Small Business Fair Dismissal Code and the Applicant’s employment does not meet the minimum employment period.
The Respondent declined to participate in a conciliation conference pending resolution of its jurisdictional objection and the matter was allocated to my Chambers on 4 September 2023. Directions were subsequently issued in which the matter was listed for a determinative conference/hearing on 21 September 2023 to deal with the Respondent’s jurisdictional objection that the Applicant’s employment does not meet the minimum employment period. The parties filed material in advance of the proceeding on 21 September 2023 which was conducted as a determinative conference.
At the conference on 21 September 2023, the Applicant appeared and gave evidence while Karen Morrison, who is the Managing Director, appeared on behalf of and gave evidence for the Respondent. Mark Barson who is Consultant Accountant to the Respondent was also called by the Respondent to give evidence.
Background and evidence
The Respondent produces a community newspaper titled ‘The Alexandra and Eildon Standard’[1] (the Standard) from its business premises in Alexandra. Another community newspaper titled the ‘North Central Review & Whittlesea Review’[2] (the Review) is produced by the North Central Review (NCR) from its Kilmore business premises.
The Applicant commenced employment with the Respondent on 8 November 2023 at its Alexandra business premises. She was engaged on a part-time basis, was covered in her employment by the Clerks-Private Sector Award 2020 (the Award) and at the date of her dismissal was in receipt of an hourly rate of pay of $26.67[3]. The Applicant was notified of her dismissal on 28 June 2023 in the Termination of Employment Letter[4]. While the letter stated that her employment would end on 4 July 2023, the Applicant subsequently confirmed that she had decided to not work out her notice period, bringing her employment to an end on 28 June 2023[5].
Ms Morrison confirmed that at the date of the Applicant’s dismissal, the Respondent employed the following eight staff including the Applicant;
· Celina Mott –Part-time
· Karen Morrison – Full-time
· Anne Richey – Full-time
· Josephine Noble – Full-time
· Rebekah Smyth – Part-time
· Melinda Pullen – Part-time
· Sally Hill – Part-time
· Ray Steyger – Casual
In support of Ms Morrison’s evidence on the number of employees engaged by the Respondent, an Australian Tax Office ‘STP report status’[6] document (the STP Report) dated 4 July 2023 was produced in evidence. The STP Report confirmed that the number of employees of the Respondent on that date was eight, that the gross wages payment in that fortnightly pay period was $15,387.88 and that there was an amount of PAYG withholding of $3042.00.
The Applicant claimed in her outline of argument that the list of employees provided by the Respondent was incomplete, to which the following names needed to be added;
· Daleen Woods – Full-time
· Lana Wood – Full-time
· Lauren Duffy – Part-time
· Jo Munro – Full-time
· Jordyn Grubsic – Part-time
· Paul Mackay – Full-time
· Ruddin Ardzi – Full-time
The Applicant states that there may be more employees of NCR than she had identified and pointed to an ‘Index of contact profiles from North Central Review’[7] (NCR Contact Profile) dated 9 September 2023 which identified some other names she had not included in her list of NCR employees. The Applicant also produced in evidence a copy of the front page of the ‘Review’ dated 29 August 2023[8] which also included some additional names she had not included in her outline of argument. She states that there are clearly more than 14 employees when taking into account the additional employees who are engaged at the Kilmore office.
When cross-examined on the list of Kilmore based staff of NCR, the Applicant conceded that the actual number of staff as of 28 June 2023 is uncertain as the two above-referred documents that included NCR staff names postdated her dismissal by over two months and she could not be certain when some of those staff may have commenced with NCR. Nor was she certain of NCR staff employment or contractual status. She maintained however that there were at least seven NCR employees at the time of her dismissal that should be included in the number of employees of the Respondent.
The Respondent denies that the additional ‘employees’ referred to by the Applicant are in fact employees and relied on the evidence of Ms Morrison and Mr Barson on the relationship between the Respondent and NCR. According to Ms Morrison and Mr Barson, the additional ‘employees’ identified by the Applicant are not employed by the Respondent or any associated entity of the Respondent and should not be included for the purpose of establishing the number of employees engaged by the Respondent on 28 June 2023. Mr Barson stated the following in correspondence to the Respondent on 1 September 2023[9] regarding the commercial relationship between the Respondent and NCR;
· the Respondent and NCR have a commercial relationship in place through which NCR produces the Respondent’s newspaper titled ‘The Alexandra & Eildon Standard’ (the Standard);
· the commercial arrangements involve the Respondent’s management and staff preparing the news articles, editorial content, advertising etc following which this material is submitted to NCR for production prior to transmission to a separate printing company for printing prior to publication;
· the commercial arrangement referred to above is like many others within the industry as it enables smaller newspapers to avoid the costs of purchase of expensive production facilities and printing equipment;
Mr Barson further stated in correspondence to the Respondent that for the purposes of Section 50AAA of the Corporations Act 2001, the Respondent and NCR are not related bodies corporate. In support of that evidence, he observed that the two entities have different shareholders with no interest in either entity held by the other body. He also confirmed that the only two shareholders of the Respondent are Celina Mott and Fiona Brown[10] and that Ms Mott and Ms Brown do not hold shares in NCR. He also stated that there is no control of one entity exercised by the other as each one has its own independent management team who make autonomous decisions. He also notes that each company has its own directors and that no directors act in such a capacity for both companies. Ms Morrison when questioned on these points confirmed Mr Barson’s evidence.
Has the Applicant been dismissed?
A threshold issue to determine is whether the Applicant has been dismissed from her employment. Section 386(1) of the Act provides that the Applicant has been dismissed if:
(a)the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b)the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.
Statutory Provisions
Before considering the merits of the Applicant’s unfair dismissal application, the Commission is also required by s 396 of the Act to decide certain matters. Section 396 provides as follows:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
I am satisfied that the application was filed within the 21-day statutory timeframe specified in s 394(2) of the Act. Therefore, the next issue that must be determined is whether the Applicant is a person protected from unfair dismissal (s 396(b)). The question to be answered in respect of s 396(b) is in part that found at s 382(a) which relevantly states 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
…………………………”
The minimum employment period is one year for a small business employer and six months for other employers, as provided by s.383 of the Act which states as follows:
“383Meaning of minimum employment period
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 when 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.”
Section 23 of the Act relevantly defines a small business 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.”
Consideration
It was not contested that the Applicant was employed by the Respondent for seven months and three weeks, from 8 November 2022 until 28 June 2023. Consequently, it follows that if the Respondent was a small business employer at the time of the Applicant’s dismissal, then she is not protected from unfair dismissal because she had not completed the minimum employment period of twelve months at the time of her dismissal.
Turning to the number of employees employed by the Respondent, the evidence of Ms Morrison was that the Respondent employed eight employees at the date of the Applicant’s dismissal. Support for Ms Morrison’s evidence is found in the ATO STR Report which also confirmed there were eight employees of the Respondent on the 28 June 2023. The Applicant challenged that evidence, claiming that at least seven employees of NCR should be taken into account because NCR was an associated entity of the Respondent, bringing the total number of employees to fifteen.
Beyond mere assertion, the Applicant led no evidence to establish that the Respondent and NCR were associated entities. By contrast, Ms Morrison and Mr Barson gave evidence of the commercial relationship between the two companies, that there were no common directors or shareholders between the two organisations and that the two organisations were not associated entities. I am satisfied on the evidence of Mr Barson and Ms Morrison that the relationship between the Respondent and NCR is a commercial one in which the Respondent pays NCR for services, that of producing the Standard before it is sent for printing. I accept that the arrangement is one that enables the Respondent to manage its costs by avoiding the need to acquire skilled staff and expensive production equipment. For the same reason, the printing of the Standard is ‘outsourced’ to another unrelated organisation.
I am satisfied that there were no associated entities of the Respondent within the meaning of s 50AAA of the Corporations Act 2001 (Cth) at the date of the Applicant’s dismissal. Therefore, it will only be those employees engaged by the Respondent on 28 June 2023 that are relevant for the purpose of calculating the number of employees. At the time of the Applicant’s dismissal, the Respondent employed eight staff including the Applicant. Consequently, I am satisfied that the Respondent employed less than fifteen employees at the time of the Applicant’s dismissal which means that the Respondent was a small business employer at the time of the Applicant’s termination of employment.
Conclusion
Having found that the Respondent was a small business employer at the time of the Applicant’s dismissal, the Applicant has not completed the minimum employment period of twelve months with the Respondent at the time of her dismissal (s.382(a) of the Act). I therefore uphold the Respondent’s jurisdictional objection concerning the minimum employment period. The Applicant’s unfair dismissal application is dismissed. An Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
S Hill, Applicant.
K Morrison for the Respondent.
Hearing details:
2023.
Melbourne (via Microsoft Teams):
September 21.
[1] Exhibit R9, ‘The Alexandra & Eildon Standard’, 18 August 2023 edition
[2] Exhibit R10, ‘North Central Review and Whittlesea Review’, 29 August 2023 edition
[3] Exhibit R3, Payslip for pay period ending 4 July 2023
[4] Exhibit R6, Termination of Employment Letter, dated 28 June 2023
[5] Exhibit R7, Notice Period letter signed by Applicant, dated 28 June 2023
[6] Exhibit R14, STP Report Status, dated declared of 4 July 2023
[7] Exhibit A3, Index of contact profiles from North Central Review
[8] Exhibit A2, North Central Review, dated 29 August 2023
[9] Exhibit R13, Letter from Charman Partners to Alexandra Newspapers Pty Ltd, dated 1 September 2023
[10] Exhibit R15, Annual Company Statement, dated 12 May 2023
Printed by authority of the Commonwealth Government Printer
<PR766489>
0
0
0