The Industrial Magistrate has dismissed a claim for redundancy pay by a national system employee on the basis that the respondent was a ‘small business employer’ within the meaning of the Fair Work Act 2009 (Cth) (FW Act) and was excluded from paying the employee redundancy pay.

Under the FW Act, a ‘small business employer’ employs fewer than 15 employees and is excluded from having to pay redundancy pay to an employee. The FW Act also states that any casual employee is not to be counted as an employee unless they are employed on a ‘regular and systematic’ basis.  

The claimant contended that the respondent employed 19 employees at the time she was given written notice of termination of employment and was therefore entitled to redundancy pay of seven weeks at the base rate of pay.

The claimant argued that on top of the 12 employees included in the respondent’s count for the purposes of determining whether it was a ‘small business employer’, another five casual employees and two shareholders should also be included in the count.

Industrial Magistrate Scaddan found, on the evidence, that the other five casual employees were not employed on a ‘regular and systematic’ basis. Scaddan IM also found that there was no contract of employment between the two shareholders and the respondent, and her Honour was not satisfied that they were employees.

Scaddan IM found that, as the respondent only employed 12 employees at the time of the claimant’s termination of employment, it was a ‘small business employer’ and was excluded from paying the claimant redundancy pay.

The claim was dismissed.

The decision can be read here.