Teagan Salton v Raylook Pty Ltd

[2022] FWC 1211

[2022] FWC 1211

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Teagan Salton
v

Raylook Pty Ltd

(U2022/4359)

COMMISSIONER O’NEILL MELBOURNE, 19 MAY 2022

Application for an unfair dismissal remedy – minimum employment period not satisfied – application dismissed.

Introduction

1. These are edited reasons of the decision delivered ex tempore and recorded in transcript on 17 May 2022.

1. On 13 April 2022, Ms Teagan Salton made an application to the Commission for an unfair dismissal remedy. She contends that she was dismissed from her position as a Dental Chairside Assistant by the Respondent on 11 March 2022.

1. Section 394(2) of the Fair Work Act 2009 (Cth) (Act) states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to s.394(3).

1. In order for the application to proceed, Ms Salton requires the Commission to grant a further period of time within which to bring her application. The Respondent objects to an extension of time being granted and has made a further jurisdictional objection that the Applicant’s employment does not meet the minimum employment period.

1. The questions of whether to grant additional time and whether the minimum employment period had been met was programmed to be dealt with at a hearing on 17 May 2022. Both parties were given permission to be legally represented, and I was satisfied that it was appropriate to conduct a hearing having taken into account the views of the parties.

1. Witness evidence was provided by Dr Dickinson for the Respondent, and Ms Silby and Ms Varrasso for the Applicant. No witnesses were required for cross-examination, with Dr Dickinson not being required on a basis agreed between counsel for the Applicant and the Respondent.

1. At the hearing I determined to deal initially with the evidence and submissions in relation to the minimum employment period. At the conclusion of that part of the hearing, I determined that the Applicant did not meet the minimum employment period. These are my reasons for that decision.

Minimum employment period

1. Under the Act, an employee must have completed at least the minimum employment period to be eligible to bring an unfair dismissal claim against their employer.[1] For a small business employer, the minimum employment period is one year.[2]

1. Dr Dickinson’s evidence is that at the time the Applicant was dismissed, the Respondent and associated entities employed less than 15 people. Dr Dickinson’s evidence is that he is a sole trader specialist dentist, trading as “i-Pros” and in that capacity has no employees. He is also the sole director and shareholder of Raylook Pty Ltd which supplies him with access to a building, equipment, staff and materials. Generally, at any given time, Raylook Pty Ltd employs approximately 4 staff: an office manager, two clinical chairside staff and an employee to manage instruments.[3] Dr Dickinson provided an extract from Raylook Pty Ltd’s payroll and accounting software that identifies that it had 5 employees in the period between 8–11 March 2022.[4]

1. Dr Dickinson is also the sole director and shareholder of another entity called Advanced Prosthodontic Technologies Pty Ltd as trustee for the APT Unit Trust. APT provides laboratory services to him as a sole trader. His evidence was that at the date of the Applicant’s dismissal, APT employed one person.

1. The Applicant disputes that the Respondent is a small business but has adduced no evidence in support of this submission or provided any factual basis to question the veracity of the material before the Commission which evidences that the Respondent and its associated entities employed a total of 6 people at the relevant date. The evidence before the Commission includes documents produced following the issuing of an Order to Produce directing the Respondent to produce:

“Complete staffing list of all employees as at 11 March 2022, of the following entities:

a.   i-Pros

b.   Dickinson Family Trust

c.   Advanced Prosthodontic Technologies Pty Ltd

d.   Dr Anthony Dickinson

e.   APT Unit Trust

f.    Raylook Pty Ltd”

1. The Applicant submitted that by not producing the ‘correct lists’, the Order to Produce had not been properly complied with, as the Respondent had simply reproduced screen shots of material already provided in his witness statement.[5] However, no basis for this submission was provided. For example, there was no evidence by the Applicant that during her employment she had seen a larger number of employees at work or had any other reason to question the Respondent’s evidence that there was a total of 6 employees. This is not a case where there is a fine line in that the number of employees is close to 15 and the evidence is equivocal. There is simply no basis to doubt Dr Dickinson’s evidence and conclude that there were, in fact, more than double the number of employees that he had attested to and provided documentary evidence in support of.

1. I am satisfied that as at 11 March 2022, the Respondent was a small business employer within the meaning of the Act. Consequently, unless the Applicant completed a minimum employment period of one year, she is not eligible to make an unfair dismissal application.

1. Section 384 provides that an employee’s period of employment is the period of continuous service with the employer. The expression ‘continuous service’ is not defined in the Act. The ordinary meaning of ‘continuous service’ is the period of unbroken service by an employee with an employer.[6] However, this ordinary meaning of ‘continuous service’ is affected by section 22. The effect of section 22 is that certain periods (e.g. unauthorised absence and certain unpaid leave and unauthorised absences) do not count towards the length of the continuous service, however they do not break an employee’s continuous service.

1. Ordinarily a gap between periods of employment with the same employer would not satisfy the ordinary meaning of continuous service because the service is broken and not continuous. However, in limited circumstances a gap in employment does not break an employee’s continuous service. This includes where there is a transfer of employment between associated entities.

1. Section 22 provides that a transfer of employment between associated entities exists if the employee becomes employed by the second employer not more than 3 months after the termination of the employee’s employment with the first employer.[7] In this circumstance, the period of service with the first employer counts as service with the second employer, and the ‘gap’ in employment does not break the employee’s continuous service but does not count towards the length of the continuous service. The Act does not otherwise provide for an employee whose employment relationship with an employer ends and is subsequently re-employed by the same employer to have their earlier period of service included in calculating their ‘continuous service’.[8]

1. The Applicant’s evidence in the Form F2 Application is that:

a.   On 7 June 2018 she commenced employment with the Respondent as a full-time Dental Chairside Assistant and she resigned on 30 January 2020 to pursue a different career path (‘First period of employment’);

b.   On 6 July 2020 she commenced employment with i-Pros and she resigned from her employment on 19 November 2020 (‘Second period of employment’);

c.   She commenced employment again with i-Pros on 17 May 2021 and her employment was terminated by the Respondent on 11 March 2022 (‘Third period of employment’).

1. The Third period of employment was approximately 10 months long. There was a gap of more than 5 months between the Second and Third periods of employment.

1. As the Third period of employment was less than one year, unless at least the Second period of employment is included in the continuous service, and added to the Third period of employment, she is ineligible to make an unfair dismissal application.

1. The Applicant resigned from her Second period of employment on 19 November 2020, and she commenced a new employment relationship with the Respondent more than 5 months later, on 17 May 2021. The Applicant’s action in resigning from her employment brought her employment relationship with the Respondent to an end. The Third period of employment was a separate and new employment relationship, following the Applicant’s acceptance of a written offer of employment to her dated 26 April 2021.[9] For completeness, I note that there was no evidence that the Third period of employment constituted a transfer of employment between associated entities, and even if it were, it would not assist the Applicant as the gap between the two periods was more than 3 months.

1. Counsel for the Applicant made what it acknowledged was a novel submission, that in assessing the minimum employment period, compliance by the employer with the Small Business Fair Dismissal Code was relevant. It submitted that ‘the Code governs alleged small businesses and they must abide by it, in order to receive the indulgences provided, namely that the minimum period of employment is extended from 6 months to 12 months.’[10] This submission is not supported by the provisions in the Act and is without merit. An employee must have satisfied the minimum employment period in order to be a protected person, and thus eligible to make an application for an unfair dismissal remedy. This is a threshold jurisdictional question. Dismissals that are not consistent with the Code would lead to a finding that a person was unfairly dismissed. But consideration of the Code only arises in respect of persons who are eligible to make an application and is not relevant to determining whether a person has met the minimum employment period.

1. The Applicant further submitted that the “Applicant’s close relationship and ongoing employment was continuous for the purposes of the small business code” and cited three decisions in support.[11] These cases do not assist the Applicant. They involved circumstances where there was a transfer of employment and an employee ceased working with one entity and commenced employment with another. The Act makes specific reference to this situation as explained earlier, and those provisions do not assist the Applicant as there was more than a 3-month gap between the Second and Third periods of employment. None of the cases cited involved the cessation of the employment by the resignation of the employee.

1. In light of my conclusion that the Applicant has not served the minimum employment period of one year, it is unnecessary to determine whether additional time ought to be granted.   As the Applicant was not eligible to make an unfair dismissal application, the application is dismissed. An order to that effect will be issued separately.

COMMISSIONER

Appearances:

J Polese of Counsel for the Applicant.
J Lipinski of Counsel for the Respondent.

Hearing details:

2022.
Melbourne (by video):
May 17.

Printed by authority of the Commonwealth Government Printer

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[1] s.382 of the Act.

[2] s.383 of the Act.

[3] Witness Statement of Dr Dickinson at [3]-[8].

[4] Attachment A to Witness Statement of Dr Dickinson.

[5] Applicant’s submissions dated 13 May 2022 at [8].

[6] Holland v UGL Resources Pty Ltd[2012] FWA 3453 at [20]; Harris v Laing O’Rourke[2017] FWC 1204 (‘Harris’).

[7] s.22(5)-(8) of the Act.

[8] Harris at [9].

[9] Attachment D to Witness Statement of Dr Dickinson.

[10] Applicant’s submissions dated 13 May 2022 at [12].

[11] Ricky Taulapapa v Toll Personnel Pty Limited [2018] FWC 6242; Thorne v Jura Australia Espresso Pty Ltd [2012] FWA 4954; Burdziejko v ERGT Australia Pty Ltd [2015] FWC 2308.

Printed by authority of the Commonwealth Government Printer

<PR741724>