Redundancy pay, small business and number of employees

 

This extract from a Fair Work Commission case explains the manner in which the law determines whether an employer is a small business employer and therefore not liable to pay statutory redundancy pay based upon the number of employees it has.

 

“Consideration

 

[12]              Section 385 of the FW Act provides that a person has been unfairly dismissed if: “(c) the dismissal was not consistent with the Small Business Fair Dismissal Code”.

[13]    Section 388(2)(a) provides that the Code applies to a “small business employer”. A small business employer is defined by s 23:

 

“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, the employee is a regular casual employee of the employer.

(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.” (emphasis added)

 

[14]    In this matter, the relevant time for this assessment is the time of the dismissal.

 

[15]    Arabana, being the party advancing the affirmative proposition that the employer is a small business employer, carries the onus of proving the facts required to make that finding.

 

[16]    The parties have agreed1 that the matters set out in a signed submission by Mr Ben Watson, adviser to Arabana, dated 17 May 2024, is a true and accurate statement of facts relevant to the preliminary issue. Certain other matters are also agreed.2

 

[17]    At the date of dismissal, Arabana employed seven permanent employees (full time and part time).

 

[18]    At the date of dismissal, an additional casual pool of between twenty to forty traditional owners existed who were called on when required and available to undertake heritage clearances, surveys and monitoring project work.

 

[19]    When engaged, the casuals worked for a short period on allocated tasks and then returned to traditional lands or townships before being asked to perform further work.

 

[20]    At the time of dismissal, four persons from within this casual pool were employed in the sense of performing work for the respondent. These four persons were in addition to the seven permeant employees.

 

[21]    It is necessary to determine whether the casuals in the pool were regular casual employees as defined. This is because a casual employee is not to be counted unless, at the relevant time, the employee is a regular casual employee (s 23(2)(b)).

 

[22]    A “regular casual employee” is defined in s 12 as:

 

“a national system employee of a national system employer is a regular casual employee at a particular time if, at that time:

(a)      the employee is a casual employee; and

 

(b)     the employee has been employed by the employer on a regular and systematic basis.”

 

[23]    A “casual employee” is defined in s 15A as:

 

“15A Meaning of casual employee

 

A person is a casual employee of an employer if:

 

 

 

(a)      an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and

 

(b)     the person accepts the offer on that basis; and

 

(c)      the person is an employee as a result of that acceptance.

 

[24]    There is no doubt that persons in the casual pool, including the four who were working on 28 February 2024, were casual employees as defined.

 

[25]    However, they cannot to be included in the count unless they were “employed by the employer on a regular and systematic basis.”

 

[26]    The evidence clearly supports a finding that, important though the project work was, all of the casuals in the pool, including the four who were employed at the relevant time, were not employed on a regular and systematic basis.

 

[27]    The casuals were offered work only when project work needed to be undertaken, only performed work if they were available and not otherwise occupied, and only performed work if they were willing to undertake a particular task on a project at a particular time or for a particular period. Further, whilst some project work could be anticipated, the frequency of the work offered, and its duration, was commonly indeterminate and sporadic.

 

[28]    It was for these reasons that the relevant employees were casuals and not part of Arabana’s permanent workforce. They were casuals irregularly employed. Whilst the existence of the casual pool provided some structure from which casual work could be offered, and whilst some of the casuals worked on repeated projects at different times, the pattern and circumstances of engagement were so indeterminate that the casuals were not employed on a regular and systematic basis in the relevant sense.

 

[29]    The casuals in the pool are not able to be included in the count.

 

[30]    This being so, the number of persons employed by Arabana at the date dismissal took effect was less than fifteen.

Conclusion

 

[31]    As the number of persons employed by Arabana was less than fifteen, Arabana was a small business employer at the relevant time.

 

[32]    In determining Mr Stuart’s application, the Small Business Fair Dismissal Code applies.”

 

Stuart v Arabana Aboriginal Corporation – [2024] FWC 1481  delivered 7 June 2024 per Anderson DP