TAX OFFICE: The ATO has moved to shut down Len Smith Carpet Court. 

Photo Naomi J. Matthews
TAX OFFICE: The ATO has moved to shut down Len Smith Carpet Court. Photo Naomi J. Matthews Naomi J. Matthews

Sacked Gladstone salesman fights for redundancy

THE number of employees at a flooring business in Mackay could decide an unfair dismissal claim in Gladstone.

The Fair Work Commission has ordered the director of Mackay's Carpet Court, Raymond Jack, to reveal his staffing numbers for all four businesses he was the director of, at the time former salesman Kevin MacInnes was terminated from Len Smith Carpet Court in Gladstone.

Fair Work documents state Mr Jack was the sole director of four businesses, Mackay Carpet Court, Len Smith Carpet Court, Maryborough CC and CC Qld Holdings.

Mr MacInnes has claimed to the Fair Work Commission that the loss of his job as a salesperson at Len Smith Carpet Court (Gladstone) was unjust and that he was not offered a redundancy.

Mr Jack argued that since his Gladstone-based Carpet Court had six employees at the time of the termination a redundancy was not required. Under the small business code, a business employing fewer than 15 people is exempt from paying out a redundancy.

Carpet Court Gladstone.
Carpet Court Gladstone. Mike Richards GLA311216COURT

According to Mr MacInnes, all four entities of the Carpet Court business needed to be included in calculating the size of this company; he also offered evidence that there were more than six employees at the Gladstone store anyway.

Johanne Davison, who was Mr MacInnes' manager at the time, gave a statement that 22 were employed at Gladstone but she could only remember the full names of seven.

Len Smith Carpet Court's business adviser Andrew Johnson said to the commission that the Gladstone store was independent of the Mackay and Maryborough stores because of "separate accounting systems, bank accounts, purchasing etc".

He also stated that each business had separate trust arrangements.

But commissioner Susan Booth said the fact that the trusts had the same director, meant the entities should be considered as one.

"In summary, I am satisfied the four corporate entities are associated entities on the basis of the common ownership, directorship, and capacity to control the outcome of decisions," Commissioner Booth said.

"But the mere fact they are associated entities does not resolve the underlying question: was there fewer than 15 employees at the relevant time? If so, the employer was a small business employer and there would be no entitlement to redundancy."

As a result, the commissioner has ordered Mr Jack to include staff numbers of the four businesses before a decision is made on the claims of unfair dismissal.

Once that information is provided a decision will be made on the claim. The Fair Work document didn't state the date of termination.

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