Sarah Beckett v Australian Barbeque Events Pty Ltd T/A Bob's Big Boy Burgers and BBQ

[2019] FWC 473

[2019] FWC 473

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sarah Beckett
v
Australian Barbeque Events Pty Ltd T/A Bob’s Big Boy Burgers and BBQ
(U2018/10899)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 1 FEBRUARY 2019

Application for an unfair dismissal remedy – jurisdictional objection that minimum employment period not met – transfer of employment – associated entities – service with previous employer counts towards period of employment – Fair Work Act 2009 (Cth) ss.22, 383, 384 – minimum employment period met – jurisdictional objection dismissed.

[1] On 21 October 2018, Sarah Beckett (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth), in relation to the termination of her employment by Bob’s Big Boy Burgers and BBQ, which she described as ‘formerly known as Memphis BBQ Pit Pty Ltd’.

[2] The respondent objected to this application on the basis that the applicant had not met the minimum employment period to be protected from unfair dismissal. I heard the parties in relation to this jurisdictional objection on 25 January 2019. The applicant represented herself with assistance from her brother and mother. Mr D Musgrave, director, appeared for the respondent.

[3] At the hearing, for reasons that will become apparent, the applicant applied to amend her application to name Australian Barbeque Events Pty Ltd T/A Bob’s Big Boy Burgers and BBQ (Australian Barbeque Events or the respondent) as the respondent. I allowed this amendment.

[4] I gave my decision on transcript at the conclusion of the hearing. I decided to dismiss the respondent’s jurisdictional objection and allow the application to progress. These are my reasons for that decision.

The facts

[5] The applicant commenced employment with Memphis BBQ Pit Pty Ltd (Memphis) in February 2016. The respondent conceded at the hearing that the applicant’s employment, though casual, was on a regular and systematic basis, and she had a reasonable expectation of continuing employment. The evidence was that Memphis employed several university students, including the applicant, who would work when not studying. Memphis organised the roster around the students’ class times and study commitments.

[6] Mr Musgrave gave evidence that on 7 September 2018, Memphis distributed a memo to all its employees titled ‘Closure of Memphis BBQ Pit’, signed by him. It relevantly stated:

‘Sadly, I wish to advise that Memphis BBQ Pit will cease operations at 5.00pm on Sunday September 9, 2018 after almost 5½ Years. We ask all staff to consider the work offer from Bob’s Burgers and BBQ who will be taking over the premises and commencing operations on Monday September 10, 2018.

Any staff member who doesn’t wish to become a casual employee with the new Company, please let me know and this information can be passed on. I would then thank you for your loyal service and I am sorry you are no longer employed as a casual with Memphis BBQ Pit Pty Ltd beyond September 9, 2018.

If you do wish to take up the casual employment offer with the new company Bob’s Burgers and BBQ, please complete the attached information on the forms attached. Each and every staff member will be on trial for the first 6 weeks to govern if Bob’s will be requiring your services beyond that point.

I have remained on with the new company to oversee Operations and assist in the new company’s inception. …’ 1

[7] The respondent’s evidence is that from 10 September 2018, the applicant commenced a four-week ‘trial period’ 2 (despite the six-week period referred to in the 7 September 2018 memo), which ended on 8 October 2018 because of alleged unsatisfactory performance during that period.

[8] The applicant’s evidence is that she was not aware that she was employed by Australian Barbeque Events during the alleged trial period, or at all, or indeed that her employment was subject to a trial period in the first place.

[9] The applicant also denies ever receiving the 7 September 2018 memo. She says that she thought it was simply the business’ trading name that had changed, from Memphis BBQ Pit to Bob’s Big Boy Burgers and BBQ. While I note this would be consistent with and explain the fact that she originally filed this application against Memphis, I do not need to make a finding about whether she received the memo. At the hearing, it was uncontested that at some point in early September 2018, the applicant’s employment with Memphis ended. Shortly thereafter, she commenced employment with the respondent. Her employment with the respondent ended on 8 October 2018.

[10] Mr Musgrave is the sole director of Memphis and holds 50% of its shares. His wife holds the other 50%.

[11] Mr Musgrave is also a director of the respondent, together with his wife. They and their daughter hold shares in that company.

[12] Mr Musgrave managed the day-to-day operations of Memphis while it was trading, and similarly manages the day-to-day operations of the respondent’s business, Bob’s Big Boy Burgers and BBQ.

Consideration

[13] I find that Memphis and the respondent are associated entities, because Mr Musgrave controls 3 both companies.4

[14] I find that there was a transfer of the applicant’s employment between associated entities, 5 from Memphis to the respondent, in early September 2018. The applicant’s period of service with Memphis therefore counts as service with the respondent.6

[15] I find that the applicant’s service with Memphis and the respondent as a casual employee counts towards her period of employment, because it was on a regular and systematic basis, and she had a reasonable expectation of continuing employment on that basis. 7

[16] The applicant’s period of employment with the respondent is therefore just over two-and-a-half years. Even accepting that the respondent is a small business employer, the applicant’s period of employment is still well in excess of the one-year minimum employment period 8 required to be protected from unfair dismissal.

Conclusion

[17] For the reasons above, the applicant has met the minimum employment period. Accordingly, I dismissed the respondent’s jurisdictional objection.

[18] After giving my decision, I held a conciliation conference with the parties to explore the possibility of reaching a settlement that would avoid the need for another hearing. However, no settlement was reached. The application will accordingly be remitted to another Member of the Commission for an arbitration hearing in relation to its merits.

SENIOR DEPUTY PRESIDENT

Appearances:

S Beckett, the applicant, in person.

D Musgrave for Bob’s Big Boy Burgers and BBQ

Hearing details:

Sydney.

2019.

January 25.

Printed by authority of the Commonwealth Government Printer

<PR704311>

 1   Exhibit 1 annexure D.

 2 Ibid [7].

 3   Corporations Act 2001 (Cth) s.50AA.

 4 Ibid s.50AAA(7); Fair Work Act 2009 (Cth) s.12 (definition of ‘associated entity’).

 5   Fair Work Act 2009 (Cth) ss.22(7)(a), 22(8)(a).

 6 Ibid s.22(5).

 7 Ibid s.384(2)(a).

 8   Ibid ss.382(a), 383(b).