In a recent unfair dismissal claim to the Fair Work Commission (FWC), a dismissed worker contended that the company he worked for “deliberately did not disclose other workers” employed in other locations, so that it could qualify as a small business employer.
As the employee only worked with the company for 8 months, he couldn’t claim unfair dismissal protection, as the minimum employment period (MEP) is 12 months for a small business.
However, if a company employs 15 people or more, it doesn’t qualify as a small business, and any of its workers only need to complete an MEP of 6 months, before being protected from unfair dismissal.
The employer, ECS International Security and Investigations submitted that it only had 12 employees at the date the worker was last engaged by the company.
But the worker claimed a further 21 employees were working for the business, although he was unable to provide sufficient evidence to satisfy the Fair Work Commission of this claim.
Commissioner Leigh Johns noted: “The [employee] in this matter seemed to be under a misapprehension that it was the role of the Commission to conduct some Royal Commission like fact finding inquiry into the “in and outs” [sic] of the relationship between the [business] and each of the individuals that he pointed to as potential employees. He provided the Commission with names of people and, in some cases their mobile phone numbers. He invited the Commission to make contact with them and find out if they were employees. That is not the role of the Commission.”
“[T]he Commission relies upon the parties bringing evidence before it. [There are] procedures in place that allow parties to seek Orders for Attendance and Orders for the Production of Documents. The [employee] did not use any of these means to elicit the evidence he seemed to think was there.
“I can only make a decision based on the evidence that is before me; not on what the [employee] would like to be before me. Consequently, based on the evidence before me I am satisfied that the [business] employed 12 people. The payroll summary … is a business record. I am entitled to rely upon it as proof of the employees at the relevant time. There was nothing about that business record that caused me to doubt the veracity of it.”
The worker’s application for unfair dismissal remedy was dismissed.