Troy Fenton v Simon Athinis T/A Noise Bar Pty Ltd
[2012] FWA 5612
•18 JULY 2012
[2012] FWA 5612 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Troy Fenton
v
Simon Athinis T/A Noise Bar Pty Ltd
(U2012/4381)
SENIOR DEPUTY PRESIDENT KAUFMAN | MELBOURNE, 18 JULY 2012 |
Application for unfair dismissal remedy - jurisdictional objection - small business employer - minimum employment period.
[1] The applicant, Mr Fenton was employed by the respondent Simon Athinis t/as Noise Bar Pty Ltd (Noise Bar). His employment was terminated on 13 January 2012. He applied to Fair Work Australia for a remedy in respect of what he alleged was the unfair termination of his employment on 27 January 2012.
[2] Noise Bar objected to the application on the basis that Mr Fenton was not a person who was protected from unfair dismissal because he had not served the minimum employment period as he was an employee of a small business who was employed for less than one year.
[3] The Fair Work Act 2009 provides:
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.
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.
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.
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:
(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.
[4] There being no dispute that the requirements of s.382(b) of the Act had been met, the only issue was whether Mr Fenton had served the minimum employment period as required by s.382(a) of the Act.
[5] The jurisdictional objection was the subject of a hearing before me in Melbourne on 27 April 2012.
[6] On 27 April 2012 at approximately 1.38am Mr Fenton notified Fair Work Australia that he was unable to attend the hearing listed for 10am that morning, due to him being ill.
[7] I decided that the hearing would proceed to the extent that the respondent would put its case that Fair Work Australia lacks jurisdiction to deal with the matter and that the matter would be adjourned to give Mr Fenton an opportunity to put his case on that issue.
[8] After hearing from Noise Bar, I adjourned the matter and issued the following directions on 1 May 2012:
“The Applicant is directed to provide in writing to Fair Work Australia, and serve on the Respondent, by close of business on 18 May 2012, any material upon which he wishes to rely to demonstrate that either he was employed for more than 12 months or that the Respondent employed 15 people or more at the time of the alleged termination of his employment and was, therefore, not a small business employer.”
[9] On 17 May 2012 I received written submissions from Mr Fenton.
[10] Although the question as to whether Noise Bar is a small business within the meaning of s.23 of the Act had been in issue, with Noise Bar asserting that it was and Mr Fenton asserting to the contrary, in Mr Fenton’s written submissions dated 17 May 2012 he stated that “The Respondent employs less than 15 people. This has never been an issue”.
[11] Accordingly, I accept that the Noise Bar is, and was at the date of the termination of Mr Fenton’s employment, a small business employer. It follows that in order to attract the jurisdiction of Fair Work Australia to entertain this matter, Mr Fenton must demonstrate that he had been employed for one year at the time of termination of his employment in accordance with s.383 (b) of the Act.
[12] It is undisputed that Mr Fenton’s employment was terminated on 13 January 2012. 1 For him to meet the requirements of s.383 (b) of the Act Mr Fenton is required to demonstrate that he had commenced his employment with Noise Bar by no later than 13 January 2011.
[13] Noise Bar alleged that Mr Fenton first approached Noise Bar on 5 January 2010 seeking accommodation, at which time it was agreed that Mr Fenton would occupy a room at Noise Bar at a cost of $200.00 per week. 2 Noise Bar stated that soon after moving in Mr Fenton said that he was unable to pay his rent. Mr Simon Athinis, a director of Noise Bar, told me that in January/February 2011 he discussed with Mr Fenton the possibility of him obtaining a ‘security guard/crowd controllers licence’ for the purpose of gaining employment so that he could make repayments to Noise Bar in respect of his outstanding rent.
[14] Noise Bar submitted that it first employed Mr Fenton on a casual basis as a crowd controller on 11 February 2011. 3 In support of this assertion, Noise Bar provided me with its Crowd Controller Register which disclosed that the first time Mr Fenton’s name appeared was on 11 February 2011. The first entry is for 11 February 2011 and the final entry for 7 January 2012.4 Mr Fenton states that he commenced employment as a crowd controller with Noise Bar on 3 February 20115, but that he had been employed in other capacities prior to that also on a casual basis.6 In any event, as the date of the termination of Mr Fenton’s employment was agreed to be 13 January 2012 he would not have served the minimum employment period, whether he commenced his employment on 3 February or 11 February 2011, unless as he claimed, he was employed by Noise Bar in a different capacity prior to 13 January 2011.
[15] In his application for an unfair dismissal remedy, lodged on 16 April 2012, Mr Fenton stated that the date he was employed was 1 April 2010. In his written submission of 15 April 2012 he asserted that Mr Athinis hired him as the new Promoter/Broker on 23 December 2009. 7
[16] Mr Fenton asserts that he performed a range of duties “ranging from security to bussing, maintenance, bookings, doorperson, painting, tiling, cooking”. 8
[17] Mr Fenton’s 17 May 2012 submissions attached a folio of documents in support of his claim to have been employed for at least one year. In summary, the information he relies upon to support his claim largely consists of informal emails dating from 15 January 2010 passing between him and his friends and colleagues whereby Mr Fenton informs them that he has “taken over as Marketing and Promotions Manager at ...Noise Bar”, “I’ve just started as the new Marketing, Promo, Booking guy at the Noise Bar” and other emails to like effect. There are also emails from him where he speaks of “organising a possible show with four band line up” and others in that vein.
[18] Significantly, in his earlier submissions of 15 April 2012, Mr Fenton had attached a summary of the hours he allegedly worked from Tuesday 18 January 2011 until Sunday 26 June 2011. The first entry relating to his duties involving “security” is for Friday 11 February 2011, the date that Noise Bar contends, and its records show, he was first employed as a crowd controller. The self-serving summary of hours worked does not support Mr Fenton’s contention that he was employed as at 15 January 2010, or anywhere near that time, or on 1 April 2010 as he put in his application for a remedy.
[19] Even were I to accept, contrary to Noise Bar’s contentions, that Mr Fenton was employed on 18 January 2012, as indicated by his summary of hours, he would still have been employed just short of one year.
[20] The emails between Mr Fenton and various others regarding the organisation of Noise Bar which were sent and received on an ad hoc basis do not demonstrate that there was an employment relationship between Mr Fenton and Noise Bar. The relationship, if it existed at all, was much more likely to have been for the provision of services by Mr Fenton.
[21] In any event, if I am wrong and he was an employee during the alleged period, the ad hoc nature of the emails do not establish that Mr Fenton’s period of employment was continuous service, as required by s.384(1), or, as he would have been employed as a casual employee, that his employment was on a ‘regular and systematic basis’, as required by s.384(2)(a)(i) and that he had a reasonable expectation of continuing employment, as required by s.384(2)(ii).
[22] I do not accept that Mr Fenton was employed by Noise Bar prior to 13 January 2011.
[23] Mr Fenton is not a person protected from unfair dismissal because he had not completed a period of employment with Noise Bar of at least the minimum employment period.
[24] The application made by him under s.394 of the Act must be dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr S. Athinis and Mrs P. Athinis for the Respondent.
Hearing details:
2012
27 April
Melbourne
Final written submissions:
16 May 2012.
1 Transcript PN144, Form F2.
2 Respondent’s written submissions at [4], 2 April 2012.
3 Transcript PN117-119..
4 Attachment A to Respondent’s written submission, 2 April 2012
5 Form F2, lodged 27 January 2012.
6 Applicant’s written submissions, 16 May 2012
7 Applicant’s written submissions, 15 April 2012
8 Attachment to Form F2 at [8], signed 27 January 2012.
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