Sorapim Suebprasit v 1st Café Co. Pty Ltd

[2024] FWC 3287

[2024] FWC 3287

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sorapim Suebprasit
v

1st Café Co. Pty Ltd

(U2024/11107)

COMMISSIONER SLOAN SYDNEY, 27 NOVEMBER 2024

Application for an unfair dismissal remedy

This is an edited version of a decision handed down ex tempore on 18 November 2024:

1. Sorapim Suebprasit was employed by 1^st Café Co. Pty Ltd (“1^st Café”).  She was dismissed on 1 September 2024.

1. Ms Suebprasit commenced unfair dismissal proceedings on 19 September 2024 under Part 3-2 of the Fair Work Act 2009 (“Act”). To be entitled to bring the proceedings, Ms Suebprasit must have completed the minimum employment period with 1^st Café: s 382(a) of the Act. The minimum employment period is six months, unless the employer is a small business employer at the time of dismissal, in which case the period is 12 months: s 383.

1. 1^st Café claims that it is a small business employer, and that Ms Suebprasit had not completed the minimum employment period with it. (I note that 1^st Café made a number of other jurisdictional objections to the unfair dismissal application, but they are not the subject of these proceedings.) 

1. Ms Suebprasit gave evidence that her employment period was from 26 January 2024 until 1 September 2024.  That included a period of casual service before March 2024.  Ms Suebprasit's period of casual service will not count towards a period of service unless she was a regular casual employee and had a reasonable expectation of continuing employment with 1^st Café on a regular and systematic basis: s 384(2)(a) of the Act.

1. There is no evidence as to the basis of Ms Suebprasit's casual employment.  That is, whether it was regular and systematic, or whether she had a reasonable expectation that it would continue on that basis.

1. At the same time, 1^st Café did not dispute Ms Suebprasit's evidence as to the relevant period of employment. Strictly speaking, the company led no evidence regarding Ms Suebprasit’s employment at all.  In its outline of submissions, the company referred to the parties having entered into an employment contract on 5 March 2024. But that contract is not in evidence. The company argued that the period of casual employment did not count, but did not explain why.

1. On the evidence, I accept that Ms Suebprasit was employed for the period she claims.  However, that period is still less than 12 months.

1. It is necessary then to determine whether 1^st Cafe was a small business employer at the time of Ms Suebprasit's dismissal. Under s 23 of the Act, 1^st Cafe will have been a small business employer at that time if it then employed fewer than 15 employees.  This will include regular casual employees and employees of associated entities.

1. The company relied on a statement by Jim Chao, who is the principal of JC Solutions & Associates. He stated that he has provided accounting services to 1^st Café since 30 June 2023. Mr Chao's evidence was that at the time Ms Suebprasit was dismissed, the company had fewer than 15 employees. Mr Chao also stated that Mr Zhang, the director of 1^st Cafe, had set up other entities in Australia, but none of those were operating and none had any employees.

1. 1^st Café submitted that not all of the employees identified in Mr Chao’s evidence should be counted. It argued that some of those employees were either casual employees or working on a trial basis and should not be counted. In truth, this was little more than assertion, but it ultimately does not matter.  Even if all the workers are counted, there are fewer than 15.

1. Ms Suebprasit relied on evidence which she says showed that in July 2024, 1^st Café had more than 15 employees. But that is not relevant. Even if I assume that the documents relied on by Ms Suebprasit show that the company employed 15 or more employees in July 2024, the question before me is how many employees the company had on the date of dismissal. Ms Suebprasit has not provided me with anything to suggest that Mr Chao’s evidence should not be accepted.

1. Ms Suebprasit also drew my attention to other workers in the business, such as those in “the marketing team” and a “driver”. However, Mr Chao gave evidence that those workers were engaged through third party companies as contractors and were not employees of 1^st Café. I accept that evidence. Section 23 of the Act is concerned only with the number of employees employed by the employer at a particular time. The workers identified by Ms Suebprasit are not to be counted.

1. I am satisfied on the evidence that 1^st Cafe was a small business employer at the date of Ms Suebprasit’s dismissal. She had, therefore, not completed the minimum employment period required by s 382(a) of the Act. It follows that Ms Suebprasit was not entitled to commence unfair dismissal proceedings against 1^st Café.

1. For these reasons, I order that the proceedings be dismissed. 

COMMISSIONER

Appearances:

Sorapim Suebprasit, the Applicant
Jinhao Zhang and Waner Yu, for the Respondent

Hearing details:

18 November 2024
Sydney

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