Sheryn Bedford v Innovative Hair Loss Solutions Pty Ltd
[2011] FWA 5625
•23 AUGUST 2011
[2011] FWA 5625 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sheryn Bedford
v
Innovative Hair Loss Solutions Pty Ltd
(U2011/5965)
COMMISSIONER WILLIAMS | PERTH, 23 AUGUST 2011 |
Termination of Employment.
[1] This application has been lodged by Ms Bedford who is applying for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). The Respondent employer is Innovative Hair Loss Solutions Pty Ltd (Innovative).
[2] The application was dealt with by a Fair Work Australia conciliator however the matter was not settled.
Background
[3] Ms Bedford’s application indicates she was employed on 3 July 2010 and dismissed with effect on 10 March 2011. Ms Bedford was employed for less than one year.
[4] Innovative object to the application on the grounds that they are a small business and therefore Ms Bedford has not served the necessary minimum employment period and so is not protected from unfair dismissal under the Act.
[5] The relevant sections of the Act are:
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.
Note: High income threshold indexed to $118,100 from 1 July 2011
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.
[6] The parties do not agree as to whether Innovative is a small business employer.
[7] Section 23 of the Act defines small business employer 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, he or she has been employed by the employer on a regular and systematic basis.
(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
[8] The Applicant, Ms Bedford, gave evidence with regard to 17 employees including herself whom she believed worked at Innovative at the time she was dismissed. Some of this evidence was also confirmed by the evidence of two other witnesses called by Ms Bedford.
[9] Evidence for the Respondent was given by Mrs Deborah Best and Mr Derek Best.
[10] The position and the evidence for the Respondent in short was that whilst they agreed with Ms Bedford regarding the majority of persons she had identified as being employees of Innovative at the time of her dismissal there were a small number who they dispute should be counted because they either did not exist at all, were not employees at all or were employees that are not to be counted under the terms of section 23 of the Act.
[11] I will turn to each of these disputed persons in turn.
[12] With respect to Mr Sajjad Cheema and Ms Loretta Orso, the Respondent says these persons were not employees of Innovative but rather were independent contractors. In both cases, as part of the Respondent’s evidence, documentation was provided apparently signed by each of these individuals which expressly states that they are a subcontractor to Innovative.
[13] Mrs Best gave further evidence to confirm this was the arrangement between these two individuals and Innovative. Ms Bedford concedes she was not aware of these arrangements at all.
[14] Having considered the evidence from both Ms Bedford and Mrs Best regarding the circumstances of these two individuals the weight of the evidence supports the position of the Respondent and I find that neither of these two persons at the time of Ms Bedford’s dismissal were employees of Innovative.
[15] Evidence was given by Ms Bedford and one of her supporting witnesses that they believed that in the Brisbane office of Innovative there was in fact three employees one of whom they understood was a newly employed growth consultant however her name was not known.
[16] Mrs Best gave evidence regarding this and states that there simply was no third person employed in Brisbane by the Respondent although in the period leading up to Ms Bedford’s dismissal there had been some discussion and consideration of employing such a third person.
[17] Considering all of the evidence then I am not satisfied that there was a third employee of Innovative working at the Brisbane office at the time of Ms Bedford’s dismissal.
[18] Ms Bedford included in her calculation of the number of employees Ms Mardi McGrath whom it is agreed between the parties was the receptionist at Innovative’s Melbourne office.
[19] The evidence of Mrs Best was that Ms McGrath was a casual employee not employed on a regular and systematic basis. She gave evidence regarding the change in arrangements with Ms McGrath at the beginning of this year when she became pregnant. A new contract was entered into, Ms McGrath was paid out all her entitlements from her original contract and she then worked as a casual employee. A series of e-mails confirming this change in arrangements was put into evidence by Mrs Best. Mrs Best says that at the time of dismissal Ms McGrath was only working on as required and this was not regular or systematic.
[20] Contrary to this Ms Bedford’s evidence was that whenever she rang Melbourne Ms McGrath seemed to be the receptionist answering the phone. Obviously Ms Bedford has a limited knowledge of these arrangements and the weight of the evidence supports the conclusion that the Ms McGrath was at the time of the dismissal a casual employee not working on a regular and systematic basis.
[21] I find then that Ms McGrath was not an employee to be included in the calculation of the number of employees employed for the purposes of determining whether Innovative was a small business employer.
[22] Finally the evidence with respect to the status of Mrs Best and Mr Best is that they are Directors of Innovative and are not employees of Innovative. Neither were however included in Ms Bedford’s employee count in any event.
[23] In conclusion, of the 17 persons that Ms Bedford submits should be counted for the purposes of the calculation under section 23, I find that four are not to be counted.
[24] Consequently I am satisfied that at the time of Ms Bedford’s dismissal Innovative employed fewer than 15 employees. Therefore at the time of Ms Bedford’s dismissal her employer Innovative was a small business employer.
[25] Consequently to be entitled to make this application Ms Bedford must have served the minimum employment period of one year.
[26] Given that her period of employment was less than one year she is not protected from unfair dismissal and so is not able to make this application. Consequently this application must now be dismissed.
[27] An order to this effect will be issued in conjunction with this decision.
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