s 394 - Unfair dismissal

Application for an unfair dismissal remedy - was the Respondent a small business employer - are other business entities considered associated entities - no common executive management - no entity had control over other entities - not more than 15 employees employed at time of dismissal - Respondent was a small business employer at relevant time - application to proceed.

• [1] Ms Erin Davies has applied to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) for an unfair dismissal remedy in respect of her dismissal by The Trustee For Mauna Kea Unit Trust trading as Harper's Foodmarket, a café based in the south metropolitan area of Perth, Western Australia.

• [2] There was a sale and transfer of business of Harper's Foodmarket on or around the start of June 2024. Ms Davies was an employee of Harper's Foodmarket before the ownership was transferred to the Trustee for Mauna Kea Unit Trust.

• [3] Harper's Foodmarket has raised jurisdictional objections to Ms Davies' application. As both parties are unrepresented, I determined it was appropriate to first deal with the issue of whether Harper's Foodmarket was a small business employer at the time Ms Davies was dismissed and whether they can rely on the Small Business Fair Dismissal Code.

• [4] On Friday 9 May 2025 I conducted a determinative conference to hear evidence on the matter. Ms Davies provided evidence, as did the owner and director for Harper's Foodmarket, Mr Yun 'Roy' Sun, and Ms Maria Vinci, an employee of Harper's Foodmarket.

• [5] Having considered the relevant evidence and submissions of the parties, I find that Harper's Foodmarket was a small business employer. The matter will now be programmed to deal with whether Ms Davies' dismissal was compliant with the Code, or in the alternative, whether her dismissal was harsh, unjust or unreasonable.

• [7] Harper's Foodmarket has two directors, one being Mr Sun. The other director - who I will refer to as Mr A - is also a director for AC Riverside Pty Ltd, SYK International Pty Ltd and AC Pacific Holding Pty Ltd.

(a) Mr A does not have any management role, operational involvement or decision-making authority in Harper's Market. Mr A is a nominal director to assist Mr Sun if required.

(b) AC Pacific Holding Pty Ltd is non-trading and holds no active business operations.

(c) AC Riverside Pty Ltd and SYK International Pty Ltd operate two separate restaurants. These are managed by Mr A.

(d) The two restaurants are distinct from Harper's Foodmarket. They do not share staff, resources, management, financial accounts, branding or operational decision-making.

(e) At the time of Ms Davies' dismissal, Harper's Foodmarket employed 12 people.

• [9] Ms Davies's evidence is that when ownership of Harper's Foodmarket transferred to the Trustee For Mauna Kea Unit Trust, the staff were given Mr Sun's and Mr A's phone numbers. Ms Davies also confirmed that Harper's Foodmarket employed 11 employees at the time of her dismissal, not including herself.

• [10] Ms Maria Vinci's evidence is that Mr A visited the café on occasion when the business first transferred to Mr Sun and Mr A in June 2024, but that Mr A is not involved in Harper's Foodmarket's operations. Ms Davies agreed that to her knowledge, Mr A did not have any day-to-day involvement with Harper's Foodmarket.

• [11] Ms Davies says that the other entities named are associated entities and so Harper's Foodmarket cannot be considered a small business employer as the total number of employees for all entities, including herself, at the time of dismissal would be greater than 15.

• [12] Harper's Foodmarket says that the other entities named are not associated entities. It maintains that it had 11 employees at the time of dismissal, 12 including Ms Davies, and that it was a small business employer at the relevant time.

• [13] Section 23 of the Act provides that a national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time. The calculation of the number of employees must include full-time, part-time and regular casual employees.

• [14] Section 50AAA of the Corporations Act 2001 (Cth) provides guidance on whether an entity is an 'associated entity' of another entity. Factors that are indicative of two entities being associated entities include common directorship, common executive management and one entity having control over the other.

• [15] On the basis of the evidence before me I am not satisfied that:

(b) Any of the entities had control over the other entities;

(c) There were 15 or more employees employed at the time of Ms Davies' dismissal.

• [16] Whilst I understand that the companies listed in [7] share a Director, this is not enough to make them associated entities as defined in the Act and the Corporations Act.

• [17] It follows that I find Harper's Foodmarket was a small business employer at the time of dismissal and can rely on the Code. The matter will now be programmed to deal with the remaining issues in dispute.

Printed by authority of the Commonwealth Government Printer