Zehra Ahmet v Bluebag

[2015] FWC 2300

[2015] FWC 2300

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Zehra Ahmet
v
Bluebag
(U2014/14314)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 1 APRIL 2015

Application for relief from unfair dismissal.

[1] Ms Zehra Ahmet alleged the termination of her employment by Bluebag was unfair. In her application she advised that she commenced employment in July 2014 and her employment ended in October 2014.

[2] On 17 October 2014, Ms Ahmet was sent correspondence advising that on the basis of the information provided by her she had not served the minimum period of employment. Ms Ahmet did not respond to that correspondence and further correspondence was sent on 5 November 2014.

[3] ASMT Pty Ltd trading as Bluebag filed an employer response in which it advised that Ms Ahmet had been employed by it since 18 August 2014 and the dismissal took effect on 10 October 2014.

[4] Ms Ahmet stated that she also performed work for Magic Hand Carwash which was owned by the husband of Ms Son Mohan, the director of ASMT Pty Ltd.

[5] Directions were issued to Ms Ahmet to file any evidence and submissions to support her contention that she was employed by ASMT Pty Ltd or an associated entity for at least six months. Bluebag was directed to file submissions in support of its objection.

[6] Ms Ahmet did not file any material but at the hearing she said that she commenced working with Magic Hand Carwash in May 2014. This was consistent with her earlier email. She subsequently changed this to April 2014. She was unable to advise of her actual starting date.

[7] Ms Mohan said that Betdol Pty Ltd traded as Magic Hand Carwash.

[8] Ms Mohan advised that ASMT and Betdol are separate entities and are not related to each other.

[9] Ms Mohan however gave evidence at the hearing that ASMT and Betdol had a director in common.

[10] After the hearing I provided both parties with a further opportunity to provide additional information. I advised that it was not necessary at this time to determine if Betdol and ASMT were associated entities.

[11] Ms Ahmet was directed to provide documentary evidence of her employment with Magic Hand Carwash and Ms Mohan was directed to provide evidence that Ms Ahmet was not employed by ASMT when she worked at the car wash or that she was employed by Betdol to perform work at Bluebag after July 2014.

[12] Ms Mohan provided a statement that Ms Ahmet had been offered a casual position at Magic Hand Carwash but she only worked a day or two.

[13] As a result I asked Ms Ahmet to provide any evidence including company searches to support her contention that Betdol and ASMT are associated entities. She was also asked to provide evidence of her pattern of work with Magic Hand Carwash. She further asked to provide any documents which show when she commenced working at Magic Hand Carwash.

[14] Ms Ahmet was unable to provide any documentary evidence of her employment with Magic Hand Carwash. She advised that she was paid cash in hand. Ms Ahmet advised that she commenced working with Magic Hand Carwash in May 2014.

[15] An employee is required to have served six months employment to be protected from unfair dismissal.

[16] Section 383 of the Fair Work Act 2009 provides as follows:

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.

[17] In determining whether Ms Ahmet has served the minimum employment period, no assessment has been made about the merits of her case. The Commission has no discretion to waive the requirements of the Act.

[18] Assuming Ms Ahmet commenced employment with Betdol as early as 1 May 2014 and assuming that Betdol and ASMT are associated entities such that her service with Betdol counts as service with ASMT, Ms Ahmet had still not been employed for the minimum period of employment as Ms Ahmet’s employment with ASMT ended on 10 October 2014.

[19] If Ms Ahmet has any complaint about not being paid her correct entitlements or not being provided with payslips and a group certificate, she should address those complaints to the Fair Work Ombudsman and the Australian Taxation Office.

[20] At the time of her dismissal Ms Ahmet was not protected from unfair dismissal and her application must be dismissed.

DEPUTY PRESIDENT

Appearances:

Z. Ahmet on her own behalf.

S. Mohan for the Respondent.

Hearing details:

2015.

Melbourne:

12 February.

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