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www.philtimes.com.au the philippine times JANUARY 2016
Unfair dismissal claim, what is it?
sonable; and
(c) the dismissal was not
consistent with the
Small Business Fair
Dismissal Code; and
(d) the dismissal was not a
case of genuine redundancy.”
Charlie Bulos,
Solicitor in Victoria
Before I proceed, a season’s greetings to all! To all
our readers, may you have
a happy and safe new year!
Unfair dismissal claim
This complaint is most likely
resorted if the workers felt
that the dismissal is unfair,
harsh, unjust and unreasonable in the circumstances. It
is for this reason that I feel
obliged to deal on this issue
time and again for the sake
of everyone who is at the
lower and upper end of the
scale or position. This means
that unfair dismissal claim is
qualified and not everyone
has entitlement.
This is described under
section 394 of the Fair Work
Act 2009 (‘the Act’).
FAIR WORK ACT 2009 SECT 385
This particular complaint is
experienced and continued
to be experienced by many
whilst being employed. It is
not simple, but rather very
complicated more particularly when the employers,
although small businesses
are covered or defined as
associated entity within the
meaning of Section 50 AAAA
of the Corporation Act 2001
(Cth) (“the Corporation Act”).
Facts
Maria was employed by
Finke Enterprises Pty Ltd
ATF M7L Carlson Family
Trust t/a Fused Café Pender
Place for about 7.5 months as
Barista. For some reason or
the other, she was dismissed
without notice. This is being
said to be a small business
employer. Due to what Maria
thought to be unfair, harsh
and unreasonable she went
to the FWC to complain her
unfair dismissal and sought
appropriate relief under sec-
What is an unfair
dismissal?
“A person has been unfairly
dismissed if the Fair Work
Commission (FWC) is satisfied that:
(a) the person has been
dismissed; and
(b) the dismissal was
harsh, unjust or unrea-
tion 394 of the Fair Work Act
(2009) (Cth) (‘the Act’).
At the time of her dismissal the employer has 12
employees 7 of which were
casual employees who are
employed on regular and
systematic basis.
The employer objected to
the complaint and sought
its dismissal claiming that
as employer and small busi-
ness it is protected unfair
dismissal claim. So, in
short this is jurisdictional
issue that the FWC has to
deal prior to formal hearing
to determine the merit of
the case.
Maria claims that Carlson Group Australia Pty
Ltd. (Carlson Group) is an
associated entity of Finke
Enterprises and operates
the Fused Café where
Maria was working. It
was not in dispute that
Mr & Mrs Carlson both
have effective control of
the Finke Enterprises and
Carlson Group.
Further to this, Maria added that Carlson Group has
another six employees apart
from 12 employees earlier
mentioned to make up a
total of 21 employees.
Issue: The question
now is whether or
not the employer (Finke
Enterprises) is an entity of
Carlson Group and whether
or not entity includes a natural person defined under
section 64A of the Corporation Act and part of course
of the issues if jurisdictional
issue is resolved positively
is whether the dismissal is
unfair under section 394 of
the Act?
Conclusion
The FWC in this instance
supports Maria. It is satisfied that both enterprises
(Carlson Group and Finke
Enterprise) are associated
entities within the meaning of section 50AAA of
the Corporation Act with
the combined number of
employees of more than
15 which is the threshold
number for small business.
This means that the employer is no longer small
business within the protective mantle of unfair
dismissal claims.
Therefore, the jurisdictional complaint of the
employer is dismissed and
the case continues to be
heard to deal a significant
issue whether or not the
applicant or Maria’s dismissal was unfair, unjust
and unreasonable under
section 394 of the FW Act
(2009) (see Janine Budden
v Finke Enterprises Pty Ltd
ATF M & L Carlson Family
Trust t/a Fused Café Pender Place (U2015/13072)
New Castle, 16 December
2015)
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