Under section 23 of the Fair Work Act 2009 (Cth) (the Act) what defines a ‘small business employer’ is explored and categorised as an employer who employs less than 15 employees.
Employers are able to object to Unfair Dismissals made against them on the basis that they are a ‘small business employer’ as defined and employ less than 15 employees. If this is found to be the case, the Unfair Dismissal application made by the former employee may not be able to proceed on the basis that it does not have jurisdiction to proceed.
In some cases, an employer may argue that they are a small business employer and fall under the Small Business Fair Dismissal Code under section 388 of the Act however, an error may have been made in calculating the number of employees.
Under section 23 (2)(b) of the Act, all employees employed at the time are to be included in the count. Casual employees, although not generally included in the count, are to be included if they have been employed on a ‘regular and systematic basis’.
Yaraka Holdings Pty Ltd v Giljevic established the interpretation of how ‘regular’ and ‘systematic’ is to be interpreted and applied. It was determined that the engagement of the employee is to be regular and systematic and not just the hours worked.
The term ‘regular’ implies a repetitive pattern and does not merely mean “frequent” or “often”. Therefore, referring to a roster of hours if it can be established that there appears to be a repetitive pattern and it may be argued that an employee was employed on a ‘regular’ basis.
The Macquarie Dictionary definition of ‘systematic’ was held to be applicable and was interpreted as a basis of engagement that exhibits something that can be called a system, method or plan.
Therefore, in considering the decision stated in Yaraka Holdings casual employment may fall into the category of ‘regular and systematic’ employment if there is a pattern of engagement.
Employees who wish to lodge Unfair Dismissal applications should be aware of the jurisdictional objections Employers may raise, preventing the application from proceeding.
In particular, if a large number of casuals are employed within a business that has more than 15 employees it may be possible for the casual employees to be included in the head count. Therefore, the business may not fall under the Small Business Fair Dismissal Code and would not be exempt to Unfair Dismissal Applications.
Author: Stephanie Shahine
Stephanie is a Lawyer and National Industrial Officer at Professionals Australia. Stephanie has newly joined Professionals Australia from the Fair Work Commission. Her primary focus at Professionals Australia is upon individual employment law matters. Stephanie has an undergraduate degree in Arts (double major in Politics and Criminology) and Master of Laws (Juris Doctor) from Monash University.
This publication is considered general information only and is not intended to be relied upon as legal advice or as a substitute for legal advice. If you require advice on your specific situation, please contact the Workplace Advice & Support team at Professionals Australia.