Sherren Etherington v Tafere Adhanom Berhane T/A Paincare Rheumatology

[2020] FWC 6080

[2020] FWC 6080

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sherren Etherington
v
Tafere Adhanom Berhane T/A Paincare Rheumatology
(U2020/12514)

COMMISSIONER WILLIAMS PERTH, 12 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] This matter involves an application made by Ms Sherren Etherington (the Applicant) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Respondent is Tafere Adhanom Berhane T/A Paincare Rheumatology.

[2] The Respondent’s Form F3 - Employer response to unfair dismissal application raised two jurisdictional objections, namely the employer is not a National Systems Employer and in any event the Applicant had not completed the requisite minimum employment period.

[3] This matter had been listed for a telephone conciliation conference on 6 October 2020 however the Respondent declined to participate and requested their objections to the application be dealt with in the first instance.

[4] Consequently, on 30 September 2020 this application was allocated to myself for determination.

[5] On 9 October 2020, the Commission emailed to the Applicant a letter explaining the Respondent had moved for her application to be dismissed because it asserted that the Respondent was not a National Systems Employer and separately that she had not completed the minimum employment period of one year where the employer employs fewer than 15 employees.

[6] The letter directed the Applicant to provide any information in reply to the Commission by Friday 23 October 2020.

[7] On 23 October 2020, the Applicant provided an email response to the Commission. That email referred to the objections detailed in the employer’s response and then stated “It appears I do not have a case for unfair dismissal.”

[8] The balance of the email did not otherwise address the Commission’s request for information nor otherwise respond to the two jurisdictional objections.

The legislation

[9] For the purposes of Part 3 – 2 – Unfair dismissal, Division 2 – Protection from unfair dismissal, section 380 of the Act, set out below, defines employee as meaning a national system employee and employer as meaning a national system employer:

“380 Meanings of employee and employer

In this Part, employee means a national system employee, and employer means a national system employer.

Note: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).”

[10] The terms “national system employee” and “national system employer” are defined in sections 13 and 14 of the Act respectively. These sections are set out below:

“13 Meaning of national system employee

A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.

Note: Sections 30C and 30M extend the meaning of national system employee in relation to a referring State.

14 Meaning of national system employer

(1) A national system employer is:

(a) a constitutional corporation, so far as it employs, or usually employs, an individual; or

(b) the Commonwealth, so far as it employs, or usually employs, an individual; or

(c) a Commonwealth authority, so far as it employs, or usually employs, an individual; or

(d) a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:

(i) a flight crew officer; or

(ii) a maritime employee; or

(iii) a waterside worker; or

(e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or

(f) a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.

Note 1: In this context, Australia includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see paragraph 17(a) of the Acts Interpretation Act 1901).

Note 2: Sections 30D and 30N extend the meaning of national system employer in relation to a referring State.

Particular employers declared not to be national system employers

(2) Despite subsection (1) and sections 30D and 30N, a particular employer is not a national system employer if:

(a) that employer:

(i) is a body established for a public purpose by or under a law of a State or Territory, by the Governor of a State, by the Administrator of a Territory or by a Minister of a State or Territory; or

(ii) is a body established for a local government purpose by or under a law of a State or Territory; or

(iii) is a wholly‑owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, an employer to which subparagraph (ii) applies; and

(b) that employer is specifically declared, by or under a law of the State or Territory, not to be a national system employer for the purposes of this Act; and

(c) an endorsement by the Minister under paragraph (4)(a) is in force in relation to the employer.

(3) Paragraph (2)(b) does not apply to an employer that is covered by a declaration by or under such a law only because it is included in a specified class or kind of employer.

Endorsement of declarations

(4) The Minister may, in writing:

(a) endorse, in relation to an employer, a declaration referred to in paragraph (2)(b); or

(b) revoke or amend such an endorsement.

(5) An endorsement, revocation or amendment under subsection (4) is a legislative instrument, but neither section 42 (disallowance) nor Part 6 (sunsetting) of the Legislative Instruments Act 2003 applies to the endorsement, revocation or amendment.

Employers that cannot be declared

(6) Subsection (2) does not apply to an employer that:

(a) generates, supplies or distributes electricity; or

(b) supplies or distributes gas; or

(c) provides services for the supply, distribution or release of water; or

(d) operates a rail service or a port;

unless the employer is a body established for a local government purpose by or under a law of a State or Territory, or is a wholly‑owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, such a body.

(7) Subsection (2) does not apply to an employer if the employer is an Australian university (within the meaning of the Higher Education Support Act 2003) that is established by or under a law of a State or Territory.”

[11] The practical effects of these provisions in the legislation is that only an employee of a national system employer is protected from unfair dismissal under the Act and so eligible to make an application for an unfair dismissal remedy.

[12] Employers that are non-constitutional corporations in Western Australia including an individual, a sole trader or a partnership or a trust, are not national system employers.

[13] If however the Applicant was a national system employee employed by a national system employer, for the Applicant to make this application it is necessary for her to have completed the minimum employment period as prescribed in section 382 and section 383 of the Act set out below:

“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

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

383 Meaning 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.”

Consideration

[14] The facts relevant to determining the Respondent’s objections is the information contained in the application and the Respondent’s response.

[15] The application identifies the Respondent employer as “Tafere Adhanom Berhane T/A Paincare Rheumatology”.

[16] The application lists the Respondent’s address as being in Western Australia.

[17] The Applicant provided the Respondent’s Australian Business Number (ABN).

[18] The application states that the Applicant began working for the employer on 24 September 2019 and that the date she was notified of her dismissal and the date the dismissal took effect was 27 August 2020.

[19] The Respondent’s reply identifies the Respondent’s legal name as “Tafere Adhanom Berhane”.

[20] The reply states the trading name is “Pain Care Rheumatology”.

[21] The Respondent confirms their address is in Western Australia.

[22] The reply lists the same ABN as the application.

[23] The Respondent confirms the dates the Applicant commenced working for the employer was 24 September 2019 and the date she was notified of her dismissal and the date the dismissal took effect was 27 August 2020.

[24] The Respondent’s reply says the employer had three employees including the Applicant at the time the employment ended.

[25] Separately, the Australian Government’s Australian Business Register records for the ABN provided by both parties shows the entity name as “BERHANE, TAFERE ADHANOM” and records the entity type as ‘’Individual/Sole Trader” and that the main business location is in Western Australia.

[26] Considering the information provided I am satisfied that the employer is an individual/sole trader in Western Australia and as such is not a national system employer. Consequently, the Applicant is not a national system employee.

[27] As a result, the Applicant is not an employee for the purposes of section 382 of the Act and so is not able to make an unfair dismissal remedy application.

[28] Separately, noting there is no challenge to the Respondent’s assertion that it is a small business with fewer than 15 employees, the Applicant’s period of employment is less than one year. That being the case, the Applicant has not served the pre-requisite minimum employment period prescribed in section 383 and so is not a person protected from unfair dismissal as provided for in section 382 of the Act.

[29] As a consequence, even if the Applicant had of been a national system employee, she was not eligible to make this application for unfair dismissal remedy.

[30] The Commission’s decision is that both of the Respondent’s jurisdictional objections are upheld. Consequently, this application will be dismissed and an order to that effect will now be issued.

COMMISSIONER

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