Tomlin v the Trustee for Ashton Avenue Trust (Ashton Avenue Pty Ltd)

[2016] FWC 2548

[2016] FWC 2548

REASONS FOR DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lea Tomlin

v

Ashton Avenue Pty Ltd T/A Thornlie Square Newspower

(U2016/4062)

SENIOR DEPUTY PRESIDENT

ADELAIDE, 26 APRIL 2016

O’CALLAGHAN

Application for relief from unfair dismissal Application for relief from unfair dismissal –

jurisdiction – minimum employment period – recognition of employment under prior business

ownership.

[1]        On 25 January 2016 Ms Tomlin lodged an application pursuant to s.394 of the Fair

Work Act 2009 (the FW Act), with respect to the termination of her employment with The

Trustee for Ashton Trust T/A Thornlie Square Newspower (Thornlie Square). In a

determinative conference convened by telephone on 26 April 2016 I advised that I had

concluded that Ms Tomlin was a person protected from unfair dismissal because she had

completed the minimum employment period. These reasons set out the basis upon which I

reached that conclusion.

[2]        Ms Tomlin participated in the determinative conference. Thornlie Square was

represented by Mr Smit.

[3]        In her application, Ms Tomlin advised that she commenced her employment with

Thornlie Square on 5 October 2015 and that the termination of her employment took effect on

14 January 2016. Whilst the material provided by Thornlie Square indicated that there was a

marginal difference of opinion about Ms Tomlin’s exact commencement date, given the small

magnitude of this difference, which amounts to a few days, this difference is not significant to

the matter. In the conference, Ms Tomlin then advised that she had worked, under the same

roster arrangement at Thornlie Square since 2011 and sought that her employment prior to

October 2015 when the Thornlie Square business was taken over by Mr and Ms Smit, be

taken into account.

[4]        It is also appropriate that I note that the material provided to me by Thornlie Square

indicates that Thornlie Square was a small business at the time of the termination of

Ms Tomlin’s employment. The exact number of employees engaged by Thornlie Square at

this time may also be in dispute but it is not necessary that I determine that issue at this time.

[5]        Section 382 specifies the persons who are protected from unfair dismissal in the

following terms:
[2016] FWC 2548

“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.”

[6]        The duration of the minimum employment period varies depending on whether the

employer was a small business employer at that time.

[7]        Section 383 states:

“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.

[8]        Section 384 states:

“384	Period of employment
(1)	An employee’s period of employment with an employer at a particular time is

the period of continuous service the employee has completed with the employer at that

time as an employee.

(2)	However:
(a) a period of service as a casual employee does not count towards the
employee’s period of employment unless:

[2016] FWC 2548

(i) the employment as a casual employee was on a regular and

systematic basis; and

(ii) during the period of service as a casual employee, the employee had

a reasonable expectation of continuing employment by the employer on

a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of

business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities

when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new

employment started that a period of service with the old employer

would not be recognised;

the period of service with the old employer does not count towards the

employee’s period of employment with the new employer.”

[9]        There is no dispute that, when the Thornlie Square business was taken over by Mr and

Ms Smit, Ms Tomlin was not given written advice stating that her prior period of service

would not count toward her employment under that new ownership arrangement.

[10]      The duration of Ms Tomlin’s employment, was, on this basis over five years so she

had achieved the requisite minimum employment period.

[11]      As a result, I have concluded Ms Tomlin’s a person protected from unfair dismissal

and her application able to proceed further on this basis. An Order (PR579356) reflecting this

decision will be issued. A further jurisdictional objection, made on the basis that Ms Tomlin

was not dismissed at the initiative of the employer, will be considered in concert with the

merits of the application. Directions to this effect will be issued.

Appearances (by telephone):

L Tomlin on her own behalf.

H Smit for the Respondent.

[2016] FWC 2548

Hearing (Conference) details:

2016.

Adelaide:

April 26.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR579355>