Fair Work Commission|2021-10-25

Mr Stephen Burridge v Redfrog Recycling Pty Ltd [2021] FWC 6145 (25 October 2021)

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - jurisdictional objection - small business minimum employment period - whether employer is a small business employer - evidence of small business insufficient - jurisdictional objection dismissed.

[1] On 4 August 2021, Mr Stephen Burridge (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act), alleging that he was unfairly dismissed. In the application, Mr Burridge claims that he was unfairly dismissed by the employer whom he named as Redfrog Recycling and he has subsequently accepted that the true employer is Red Frog Recycling Pty Ltd (the respondent). The application was amended during a hearing on 18 October 2021, to reflect the correct employer pursuant to s.586 of the Act. Mr Burridge seeks compensation as a remedy.

[2] On 6 August 2021, the Fair Work Commission (the Commission) wrote to Mr Anthony Morrissey of the respondent, requesting that a Form F3 Employer Response be filed by 13 August 2021, and listing the matter for a staff telephone conciliation on 26 August 2021.

[3] On 23 August 2021, the Commission wrote to Mr Morrissey advising that the Form F3 has not been received and is overdue.

[4] On 26 August 2021, due to the non-attendance of the respondent, the conciliation could not take place. The matter was then allocated to my chambers.

[5] On 27 August 2021, the parties were sent a notice of listing for a telephone mention on 31 August 2021 and a hearing on 26 October 2021, with directions attached. The respondent was also instructed to file a Form F3 by no later than 4pm on Monday, 30 August 2021.

[6] On 30 August 2021, after the 4pm deadline had passed, the Commission unsuccessfully attempted to call Mr Morrissey, and two voice messages were left, requesting a completed Form F3 and requesting best contact details for the telephone mention. An email was also sent to Mr Morrissey, which stated:

Re: U2021/6858 - Burridge, Stephen v Redfrog Recycling

Please note that the matter is listed for a preliminary mention/directions hearing at 10:00am on Tuesday, 31 August 2021, please see the attached notice of listing for further details.

Chambers has not yet received an email containing the best contact details for a representative of Redfrog Recycling. Further, no Form F3 - Employer response has been filed in the matter to date.

Please provide these details by reply email as soon as possible. A blank Form F3 has been attached to this email.

You are advised that failure to comply with directions of the Fair Work Commission may result in the matter being determined without the non-compliant party being able to provide its materials."

[7] On 31 August 2021 at 9:20am, the Commission managed to contact Mr Morrissey by telephone and Mr Morrissey was advised that the Form F3 has still not been received. Mr Morrissey advised that he is very busy, and that he is a small business.

[8] On the same day, at 9:59am, the Commission received the completed Form F3 from Mr Morrissey as a director of the respondent, which raised the jurisdictional objection that the applicant did not meet the minimum employment period of 12 months for a small business. Notably, the Form F3 documented that the employer had seventeen employees, with eleven full-time employees and six casual employees.

[9] The telephone mention commenced at 10:00am that day, during which Mr Morrissey maintained as stated in the Form F3 that the respondent was a small business employer. The applicant was advised to notify the Commission by the end of the week, if he still wished to proceed with his application.

[10] At 10:48am that day, the applicant emailed the Commission and advised that he would like to proceed with his application as it was his firm opinion that the respondent employs more than fifteen employees.

[11] Later that day at 5:18pm, Mr Morrissey emailed the Commission attaching a snapshot of the payroll of the weeks leading up to and including the applicant's dismissal. The email stated:

Attached is a snapshot of the payroll of the weeks leading up to and including Mr Burridge's dismissal. I understand where Mr Burridge may assume the greater number of employees but at his time of dismissal our business employed 6 Full time staff and 8 casual staff. Even if EVERY casual staff member is deemed systemic (even though we believe not) and our W/E 4/08/2021 payroll shows only 1 casual staff member, all other casual staff had been stood down. Red Frog had a total of 14 employees at the time of Mr Burridge's dismissal. I apologise as I added Mr Tim Fuller and Mr Aaron Francis to our 17 total. Both of these gentlemen had been hired to replace Mr Burridge and another staff member terminated at the same time. They were both employed within 2 hours of Mr Burridge's termination but ONLY after he was terminated and commenced their employment the following day.

I am happy to provide GPS for all of our delivery vehicles showing no movement for 2 of the vehicles the day Mr Burridge was terminated if needed and also am able to collect witness statements from staff working that day and also am able to obtain other information if needed. I hope this extra effort is not required.

Mr Raymond Cassidy (whom is also on the payroll the week Mr Burridge was terminated) was in fact terminated the week before. Given the fact that after his termination, Mr Cassidy physically assaulted me I felt it reasonable to terminate Mr Burridge's employment via text and letter rather that in person.

Please feel free to contact myself if any further clarification is needed."

[12] The matter was re-listed for a further telephone mention on 6 September 2021, and a jurisdictional hearing on 18 October. Amended directions were also issued, requiring the filing of submissions and evidence in relation to the jurisdictional issue.

[13] On 6 September 2021, a telephone mention took place where Mr Morrissey again maintained that the respondent is a small business employer. Mr Morrissey provided an updated position that the respondent actually employed six full-time employees and eight casuals at the time of dismissal, totalling fourteen employees. The telephone mention concluded with Mr Morrissey agreeing to provide the applicant with the single touch payroll (STP) records to satisfy the applicant of the number of employees engaged at the time of dismissal.

[14] Later that day at 1:24pm, the respondent emailed the Commission with the following:

Attached is a document showcasing visually EXACTLY what was in my previous email. As you may see it is a report from Xero, a screenshot of our employees currently and an extract from our deputy rostering service. AGAIN, even if EVERY SINGLE employee at the time of Stephen's dismissal and as mentioned below the calculation is very simple.

EMPLOYEES OF RED FROG UPON TERMINATION OF MR BURRIDGE = 13

[15] On 7 September 2021, the applicant emailed the Commission stating that Mr Morrissey has not provided the STP records for the business, as was committed to at the telephone mention on 6 September 2021, but instead has provided an inaccurate payroll employment summary dated 4 August 2021 and this is a document that can be easily manipulated.

[16] Later that day, the Commission advised the parties that the matter will proceed to a jurisdictional hearing on 18 October 2021, and that the directions remain in place. The directions as issued to the parties are set out below:

The Respondent (Redfrog Recycling) is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in support of its jurisdictional objection by no later than 4:00pm on 20 September 2021.

The Applicant (Mr Stephen Burridge) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in opposition of the respondent's jurisdictional objection by no later than 4:00pm on 4 October 2021.

The Respondent (Redfrog Recycling) is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in reply by no later than 4:00pm on 11 October 2021.

[17] On 4 October 2021, the applicant filed his written submissions which stated that the respondent has not filed any submissions or evidence as directed, and as such, the applicant has no submissions or material to oppose the jurisdictional objection.

[18] On 11 October 2021 at 4:01pm, Mr Morrissey emailed the Commission and requested "a further 24 hours to seek additional legal advice before providing any further submissions or documentation to the Commission". The requested extension was granted by email that afternoon.

[19] On 13 October 2021, the Commission emailed the respondent the following:

As per the below email correspondence, the respondent was granted an extension to file their submissions by Tuesday, 12 October 2021. Chambers' records indicate that the respondent has not filed their submissions in accordance with these directions.

The respondent is requested to provide reasons and evidence as to why they have failed to comply with the directions. The matter remains listed for a jurisdictional hearing on Monday, 18 October 2021."

[20] On 14 October 2021, the Commission emailed the parties with an amended notice of listing with information regarding the jurisdictional hearing on 18 October 2021 that it was to be conducted via Microsoft Teams video. This email instructed the parties to provide a list of the persons attending the Teams hearing, by no later than 4pm on 15 October 2021.

[21] On 15 October 2021 at 4:40pm, after receiving no response from the respondent, the Commission unsuccessfully attempted to call Mr Morrissey and left two voicemail messages, requesting a return call. The Commission then sent the following email:

"The respondent (Red Frog Recycling) has not provided a list of persons attending the Teams hearing, as requested below.

Please provide a complete list of the persons attending the Teams hearing, including their names (with preferred prefix), positions and contact numbers (direct or mobile only) urgently.

The matter remains listed for hearing via Microsoft Teams on Monday, 18 October 2021 at 10:00am (Sydney Time).

Please note that should you fail to attend the hearing, and not provide any satisfactory explanation, the hearing will proceed in your absence and may result in an outcome adverse to the respondent's interests."

[22] On 18 October 2021 at 9:00am, prior to the jurisdictional hearing, Mr Morrissey telephoned chambers and advised that he was unable to attend the hearing, and that he was happy for the hearing to proceed in his absence. Mr Morrissey stated that he was not in the right mental state at the moment, and said that he has spoken to some lawyers, and asked if they would need to seek permission to represent him. Mr Morrissey was requested to put this request in writing and email this to chambers, and he was told that if he was being legally represented, a Form F53 would need to be filed, and permission would need to be granted by the Commission. Mr Morrissey said that he would put this in writing and email chambers at about 9:45am when he arrived at the office.

[23] At 10:10am that day, chambers telephoned Mr Morrissey and advised that no email had yet been received as was requested of him. Mr Morrissey advised that he had sent an email at 9:15am. Mr Morrissey was requested to please check this again, as nothing has been received by the Commission or the applicant. Mr Morrissey said that he would check this in the next 10 or so minutes and re-send on his iPad when he is ready. Mr Morrissey was also advised that the jurisdictional hearing was about to commence and asked if he wished to join the hearing. Mr Morrissey declined.

[24] At 10:15am, the jurisdictional hearing commenced in Mr Morrissey's absence. Mr Burridge was present along with a Mr Trevor Sidley, a friend who has been assisting Mr Burridge with his application.

[25] At 11:54am, after the jurisdictional hearing had concluded, Mr Morrissey sent an email to the Commission stating the following:

I am sorry to inform you that I will not be able to attend the hearing today.

Unfortunately I feel that representing myself further in this matter would prejudice my case.

After the last hearing I fear that my clinical depression will be exacerbated by Mr Burridge's defaming of my business via social media, baseless accusations of tampering with payroll documents and his refusal to address a vehicle accident where he collided with a townhouse whilst driving one of our company vehicles (discovered after his termination) has taken a hefty toll which has led me to unable to deal with this matter. These are all reasons why I fear for a decline in my mental health. Whilst Mr Burridge is not the cause of my depression, the reasons above outline whilst it would be beneficial for myself to be represented in this matter.

My solicitors shall lodge the appropriate documents this week and I hope that you find favourably in my request to be represented."

[26] On 22 October 2021, the Commission received an email from Mr Morrissey (that was purportedly sent on 18 October 2021 at 9:30am, prior to the jurisdictional hearing) which stated the following:

I write to confirm that I am unable to attend the hearing this morning and would like to confirm that I am happy for the jurisdictional matter to be heard in my absence.

For quite some time now I have been unable to deal with this matter effectively due to poor mental health. This combined with baseless accusations of doctoring STP in the last hearing, Mr Burridge's defaming of my business on social media and a refusal to contact myself or return calls in relation to an accident where he was driving our company vehicle and ran into a house (discovered after his termination) leaves me severely depressed.

Whilst Mr Burridge is not the cause of my depression his actions have surely exacerbated it and consequentially set me back months in my therapy.

I feel I may not be able to effectively converse with him during any further hearings.

My solicitors shall send forth an application this week to represent myself in this matter and I hope that you find this permissible."

[27] In this matter, the respondent has contended via his Form F3, (belatedly filed at 09:59am on 31 August prior to a 10:00am telephone mention) that the Commission has no jurisdiction to deal with the matter, as the respondent is a small business and the applicant has not served the minimum employment period required of 12 months.

[28] Section 23 of the Act provides:

(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, he or she has been employed by the employer on a regular and systematic basis.

(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."

[29] Section 383 of the Act provides:

(a) if the employer is not a small business employer - 6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(b) if the employer is a small business employer - one year ending at that time."

[30] Whilst the length of the applicant's employment is not a point of contention, that being a period of approximately 8 months,[1] it is disputed as to whether the respondent satisfies the definition of a small business under s.23 of the Act.

[31] On the limited material that has been provided by the respondent, noting that no submissions have been filed, the Commission cannot be satisfied that the respondent is a small business as defined under s.23 of the Act. After considering the materials before the Commission, it is still unclear as to how many employees the employer had at the time of dismissal.

[32] In the respondent's Form F3 filed on 31 August 2021, it is documented that there were seventeen employees in total at the time of dismissal.[2] The respondent's later email that was sent that day at 5:18pm, states that there were fourteen employees in total at the time of the applicant's dismissal,[3] and the respondent's email of 6 September 2021 states that there were thirteen employees in total at the time of the applicant's dismissal.[4]

[33] The documents attached to these emails from the respondent included a document titled 'Payroll Employee Summary' and screenshots of the payroll. As noted by the applicant, the 'Payroll Employee Summary' document is dated 4 August 2021, two days after the applicant's dismissal.

[34] At the telephone mention on 6 September 2021, the respondent was put on notice that the applicant wanted to see the STP records for the business, in order to be satisfied of the number of employees on 2 August 2021. This is also clearly referred to in the applicant's email of 7 September 2021, and in the applicant's submissions of 4 October 2021.

[35] The applicant submitted that STP has been mandatory for all employers since 1 July 2019 and the respondent should have these records easily available, yet these have not been provided by the respondent, despite Mr Morrissey undertaking that he would provide these records.[5]

[36] The applicant further submitted that the documents provided by the respondent are not what was asked for, and that these documents are easily manipulated. Further, after cross-referencing the respondent's documents provided, the applicant provided an employee list attached to his submissions that lists eighteen employees in total. The applicant also submitted that he knows and has worked with all of these employees up until the date of his termination.[6]

[37] The Commission notes that the respondent has been provided with ample opportunity to provide the requested STP records, to provide submissions and further evidence in establishing and supporting its jurisdictional objection, yet has failed to do so. The Australian Taxation Office website advises that the STP reporting has been a mandatory obligation since 1 July 2019, for employers with 19 of fewer employees.[7]

[38] The respondent has failed to comply with directions, failed to attend conciliation, has been generally unresponsive to the Commission's correspondence, and declined to attend the jurisdictional hearing on 18 October 2021. It is noted that on 11 October 2021, the Commission granted the respondent an extension to file submissions, however following this, nothing was filed.

[39] Whilst Mr Morrissey has raised the issue of his mental health on the day of the jurisdictional hearing, the respondent did not seek an adjournment for the jurisdictional hearing but advised my chambers that he was happy for the hearing to take place in his absence.

[40] Despite Mr Morrissey's advice that his solicitors would lodge "the appropriate documents this week" no such documentation has been received. Nor has any documentation been filed following the granting at Mr Morrissey's request of a further day to seek additional legal advice before providing any further submissions or documentation to the Commission.

[41] Where a party raises a jurisdictional objection to a matter before the Tribunal it is incumbent upon that party to make good its jurisdictional point.[8] To date, the respondent has failed to satisfy the Commission that it is a small business as defined under s.23 of the Act, on this basis the jurisdictional objection is dismissed, and the matter will be programmed for a further hearing on the merits of the unfair dismissal application.

Mr S Burridge and Mr T Sidley on behalf of the applicant

[1] See F2 Application and F3 Employer Response

[5] Applicant's submissions of 4 October 2021 at [5]

[6] Applicant's submissions of 4 October 2021 at [7-8]

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Mr Stephen Burridge v Redfrog Recycling Pty Ltd [2021] FWC 6145

At a glance

Court

Decision date

Source

Judgment (94 paragraphs)

Mr Stephen Burridge v Redfrog Recycling Pty Ltd [2021] FWC 6145 (25 October 2021)

Parties

Legislation Cited (1)