QLD Unfair Dismissal - Is My Employer a Small Business Employer?

[Lilyan]

Hello,

I was employed by an Australian Public Company for 11 months & 17 days before my employment was terminated with 2 weeks pay in lieu of notice. The official reason given was that the "business is being sold with a change in business structure". The actual reason is that the Managing Director didn't like me and hired a new person to do my job who began working the Monday after my last day. I had no written or verbal warnings about my performance & ended up submitting an Unfair Dismissal claim.

In my employer's response to my submission, he has claimed that the company is a small business with only 9 employees. By my count there were 16, but since looking into details of the Fair Work Act I'm unsure if some of the people included in this number would count as "employees" due to the nature of their employment.

There are 9 full-time employees who I'm not worried about, but additional to them I have included:

- the Managing Director - works for the company full time and draws an income
- 2x "external directors" - perform regular work for the company, are listed as directors on the website, attend monthly board meetings & draw a regular income.
- 2x office juniors

- first of whom is the MD's daughter. She doesn't have set hours but has been performing regular work for the company (usually at least weekly) on for several years & has her own business card, dedicated work station, work laptop, & draws an income based on hours worked.
- Second of whom is an External Director's son. He is in several times weekly, performs regular duties, has a business card & dedicated work station, and draws an income based on hours worked.​

- the Chief Financial Officer's daughter. She is in at least weekly, performs regular duties, has her own work station and is paid an income based on hours worked. She is working primarily on database build & migration, as well as assisting with accounts.
- a new manager who was hired a week before I was terminated, was in daily and managed one of the teams.

Are there any people there who sound like they may not be counted towards the total employee count?

Thanks so much.

 

[Paul Cott]

Hi Lilyan,

All employees are counted towards the number of employees for the purposes of the small business exemption. So absent any further facts which may change the situation, it is likely all the people you mention could be employees.

 

[JS79]

Lilyan I strongly suggest that you seek legal advice from the fair work commission.

It seems that you might have enough evidence to seek a claim of unfair dismissal - if you do - you have 21 days to seek legal advice and start your action in order to claim damages.

Here is an article on unfair dismissal - Unfair Dismissal and the Fair Work Commission - Legal Blog - LawAnswers.com.au

In order to be connected with a local employment lawyer see Get Connected with the Right Lawyer for You

 

[Serge Gorval]

Hello,

I was employed by an Australian Public Company for 11 months & 17 days before my employment was terminated with 2 weeks pay in lieu of notice. The official reason given was that the "business is being sold with a change in business structure". The actual reason is that the Managing Director didn't like me and hired a new person to do my job who began working the Monday after my last day. I had no written or verbal warnings about my performance & ended up submitting an Unfair Dismissal claim.

In my employer's response to my submission, he has claimed that the company is a small business with only 9 employees. By my count there were 16, but since looking into details of the Fair Work Act I'm unsure if some of the people included in this number would count as "employees" due to the nature of their employment.

There are 9 full-time employees who I'm not worried about, but additional to them I have included:

- the Managing Director - works for the company full time and draws an income
- 2x "external directors" - perform regular work for the company, are listed as directors on the website, attend monthly board meetings & draw a regular income.
- 2x office juniors

- first of whom is the MD's daughter. She doesn't have set hours but has been performing regular work for the company (usually at least weekly) on for several years & has her own business card, dedicated work station, work laptop, & draws an income based on hours worked.
- Second of whom is an External Director's son. He is in several times weekly, performs regular duties, has a business card & dedicated work station, and draws an income based on hours worked.​

- the Chief Financial Officer's daughter. She is in at least weekly, performs regular duties, has her own work station and is paid an income based on hours worked. She is working primarily on database build & migration, as well as assisting with accounts.
- a new manager who was hired a week before I was terminated, was in daily and managed one of the teams.

Are there any people there who sound like they may not be counted towards the total employee count?

Thanks so much.

Hi Mate

The people who are not counted for the purposes of the small business exemption are casuals that are not employed on a regular and systematic basis ( Md's daughter/son) but it sounds like they're both there systematically.

If the business wants to rely on the exemption, they usually have to produce the payearoll summary at the time of your termination (also are you including yourself in the count of 9).

If you get up on the JO, you seem to have a decent claim for UD due to no reason or process by the sound of it.