The Trustee for Van Haaren Family Trust T/A Van Haaren Plumbing PTY LTD

[2018] FWC 1262

[2018] FWC 1262

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

The Trustee for Van Haaren Family Trust T/A Van Haaren Plumbing PTY LTD
(C2018/848)

DEPUTY PRESIDENT MASSON MELBOURNE, 15 MARCH 2018

Variation of redundancy pay. Small business exclusion. Application dismissed for want of jurisdiction.

[1] This matter involves an application made pursuant to s 120 of the Fair Work Act2009 (the Act) for variation of the obligation to pay redundancy pay pursuant to s 119 of the Act. The application is made by the Trustee for Van Haaren Family Trust T/A Van Haaren Plumbing Pty Ltd (the Applicant), in relation to a former employee, Mr Jacob Taylor who was made redundant on 2 February 2018.

[2] The Applicant asserts that its financial position is such that it is unable to meet the cost of its redundancy obligation due to Mr Taylor under the Act.

[3] The matter was listed for a Hearing on 2 March 2018 by telephone. The Applicant and Mr Taylor were both notified of the listing by email. Mr Taylor was unable to attend the hearing and requested that he be allowed to make written submissions which the Commission allowed. Those were received on 25 February 2018.

[4] Prior to the Hearing, the Commission raised with the parties in correspondence dated 28 February 2018, the issue of whether the Applicant was a small business as it was apparent from the application that the Applicant employed less than 15 employees and as such may be excluded from the obligation to provide redundancy pay to Mr Taylor.

[5] An application under s 120 of the Act for variation of redundancy pay for other employment or incapacity to pay, applies if an employee is entitled to be paid an amount of redundancy pay by the employer because s 119 of the Act applies.

[6] However, s 121(1)(b) of the Act provides that s 119 does not apply to the termination of an employee’s employment if, immediately before the time of the termination, or at the time when the person was given notice of the termination as described in s 117(1), the employer is a small business employer.

[7] Section 23(1) of the Act sets out the meaning of 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.”

[8] If the Applicant in this matter was a small business employer at the relevant time as defined in s 23 of the Act, then by virtue of the operation of s 121 of the Act, the Applicant is excluded from an obligation to pay redundancy pay pursuant to s 119 of the Act. Consequently, the threshold question to be firstly determined is whether or not the Applicant was a small business employer at the relevant time.

[9] At the listed Hearing time, Mr Jacob Van Haaren and Mrs Jennifer Van Haaren appeared for the Respondent. Mr Taylor was unable to attend and sought to rely on his written submission. At the Hearing, I heard submissions from the Applicant to the effect that it was a small business, that there were only two employees at the time of Mr Taylor’s dismissal and that there were no associated entities.

[10] In order that Mr Taylor had an opportunity to be heard on the question of whether or not the Applicant was in fact a small business employer at the time of his dismissal, I issued Directions subsequent to the Hearing for the filing of materials by the Applicant. I also provided an opportunity for Mr Taylor to provide submissions in response as to whether the Applicant was a small business employer at the relevant time.

Applicant’s submissions

[11] The Applicant provided a statutory declaration dated 5 March 2018, declared by Mr Van Haaren. Mr Van Haaren attested that at the time of Mr Taylor’s dismissal (and immediately prior), there were two employees of the Applicant and no associated entities.

Submissions of affected employees

[12] Mr Taylor did not provide the Commission with further submissions within the required timeframe.

Consideration and Conclusion

[13] The Applicant has provided a statutory declaration, appropriately sworn, declaring that at the relevant time the Applicant employed two employees and that there were no associated entities.

[14] It is clear, on the basis of the material received, that the Applicant was a small business employer at the relevant time. Following from my reasoning above, by virtue of the operation of s 121 of the Act, the Applicant is excluded from an obligation to pay redundancy pay pursuant to s 119 of the Act.

[15] The Applicant’s application to vary the redundancy pay for reasons of incapacity to pay cannot have jurisdiction as the section only applies if an employee is entitled to be paid an amount of redundancy pay by the employer.

[16] For the above reasons, I dismiss the application for want of jurisdiction.

DEPUTY PRESIDENT

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