TERMINATION OF EMPLOYMENT – small business employer – minimum employment period – ss.382, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant dismissed on 25 October 2016 after serving 8 months and 14 days with respondent – respondent objected on grounds that it was small business employer as defined in s.23 of FW Act and therefore, applicant did not complete minimum employment period – at time of dismissal, employed six ongoing, permanent employees and 23 temporary (casual) staff (temporaries) working at host employers – submitted that temporaries should be excluded when determining whether company had less than 15 employees because once temporary assignment was completed with host employer, temporaries did not have continued employment – host employers determined length of assignment – temporaries contract provided for this and therefore, temporaries were not employed on regular and systematic basis with either host employer or respondent – further, temporaries did not have to give notice if they did not want to continue with assignment – applicant submitted that temporaries should be counted because FW Act states that all employees employed by respondent at relevant time were to be counted – only exception is casual employees not employed on regular and systematic basis, and there was no evidence that temporaries were casual – rather, employees in question were fixed term or employed for maximum term – further contended that temporaries were not contractors – Commission held that temporaries were casual employees, not fixed term as contract between temporaries and respondent did not provide details of assignment, did not specify that it was for period of time, and did not contain commencement or completion dates – further, duration of temporaries assignment could be unilaterally changed by host employer – this was akin to pattern of casual employee – next question to be determined was whether 23 casual employees were employed ‘on a regular and systematic basis’ – Ponce v DJT Traffic considered – two documents tendered by respondent showed length of assignments and number of extensions where applicable – work appeared consistent and assignments were undertaken over number of months, indicating regular and systematic employment – Commission listed 11 job titles of casual employees that met requirements for ’employed by the employer on a regular and systematic basis’ – held that total number of employees employed by respondent at 25 October 2016 was therefore 17 employees – respondent not small business employer at time of applicant’s dismissal – applicant met requirements in relation to minimum period of employment – jurisdictional objection dismissed – application referred for conciliation. Dawe v Optimum Recruitment Group (Vic) P/L t/a Optimum Recruitment
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