Fair Work Act 2009_

s.394 - Application for unfair dismissal remedy

STL Holdings Pty Ltd T/A Sargent Rental and Maintenance

Summary: application for an unfair dismissal remedy - objection on grounds applicant not a person protected from unfair dismissal (s.382) - minimum period of employment determined - point at which legal relations are entered into.

[1] This matter concerns an application by Ms Sharon Collins ("the Applicant") for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 ("the Act") regarding the termination of her employment by STL Holdings Pty Ltd T/A Sargent Rental and Maintenance ("the employer").

[2] The employer objects to the application proceeding on various grounds, including that the Applicant is not a person who is protected from unfair dismissal.

[3] The employer objects, specifically, to the application for an unfair dismissal remedy on three grounds, these being that:

• The Applicant did not serve the minimum period of employment (s.382(a) and s.383 of the Act);

• The Applicant (for purposes of s.382(b) of the Act) was not covered by a modern award or enterprise agreement, and the sum of the Applicant's annual rate of earnings was more than the high income threshold; and

• The application was filed out of time (for purposes of s.394(2) of the Act).

[4] The relevant legislative provisions provide as follows:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Note: High income threshold indexed to $129,300 from 1 July 2013

(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.

(1) An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(a) a period of service as a casual employee does not count towards the employee's period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee's period of employment with the new employer.

[5] The relevant statutory provisions relating to the claim that the application was not made "within time" relate to s.394(2) and s.394(3) of the Act, which provide as follows:

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(f) fairness as between the person and other persons in a similar position.

[6] In the circumstances of this case, I will consider initially whether the Applicant was a person protected from unfair dismissal such that the Applicant could make an application under s.394 of the Act in the first instance.

[7] The employer contends that the Applicant had not completed six months of continuous service, as required by the Act, before she was dismissed.

[8] It is necessary first of all to identify the date the dismissal of the Applicant took effect.

My duration of employment exceeds the minimum period; having served six months and 10 days accounting for the cessation of my paid employment on 17 December 2013; I never received written notification from the Respondent notifying me otherwise [...].

[10] The evidence of Ms Zeona Rudd, who was the Multi Site Manager - Dysart and Moranbah for the Respondent at the time, was that she attended a "termination meeting" with the Applicant on 10 December 2013. Those present at the meeting also included Mr Robert Brooker, Chief Branch Operations, and Ms Megan Rush, Human Resources Manager.

[11] I add at this point that the Applicant did not seek to cross examine the evidence of Mr Brooker and Ms Rudd and their evidence was admitted uncontested as a consequence.

[12] Ms Rudd claimed that in the course of the meeting it was explained to the Applicant that her employment was being terminated within her probationary period in accordance with her employment contract. It was further communicated that the termination was to take place on 10 December 2013 with immediate effect and that she would be paid in lieu for her notice period.

[13] It was further claimed by Ms Rudd that the Applicant was provided with a letter of termination dated 10 December 2013. That correspondence read relevantly as follows:

We confirm that we have decided not to continue your employment beyond your probationary period. As a result, your employment will end today, Tuesday, 10 December 2013.

[14] It was said by Ms Rudd that the Applicant refused to sign the letter of termination.

[15] Mr Brooker's evidence was to the same effect as that of Ms Rudd. Mr Brooker added that there was some effort to explain to the Applicant that she was being paid in lieu of any requirement to work out her notice period.

[16] Ms Rush's evidence corroborated the unchallenged evidence of Ms Rudd and Mr Brooker.

[17] I have no reason to question the evidence of Ms Rush, Ms Rudd or Mr Brooker. Ms Rush for her part gave evidence that was candid and professional in presentation and grasp of detail and had no hallmarks of fabrication whatsoever.

[18] My view in this regard is bolstered by the correspondence between the Applicant and Ms Rush subsequent to 10 December 2013. On 11 December 2013 at 9:11 AM, the Applicant e-mailed Ms Rush and referred to the arrangements for her overtime and other reimbursements to be paid alongside her final payments. The e-mail was headed, "Termination - payment of overtime and reimbursements".

[19] The Applicant complained therein of what she considered to be the abuse of the probationary provision within her contract, what she believed to be the absence of an opportunity to rebut the claims made against her the previous day, and her general dissatisfaction with "the way the process took place" which included not having been invited to have a support person present.

[20] The evidence in this matter points inexorably to the conclusion that the Applicant's employment with the employer came to an end on 10 December 2013.The actions of the employer in paying notice in lieu at that time is decisive in that respect. The subsequent email correspondence also strongly suggests that the Applicant too considered that the "process" of 10 December 2013 had brought the employment relationship to an end.

[21] Having established the date from which the employment relationship ceased, it is next necessary to determine the date on which the employment relationship commenced.

[22] The Applicant argues that her employment relationship commenced on 7 June 2013 - the day after she was offered the position as Branch Manager. On that day (7 June 2013), the Applicant was escorted through the site.

[23] The Applicant also argues that the employment relationship commenced or demonstrated its continuity on 18/19 June 2013, when she performed some initial training at the request of the Respondent. The Applicant claims to have been paid for this training. The evidence of Ms Rush showed that the Applicant was indeed paid for the two days of training conducted in Brisbane.

[24] The contract of employment was signed between the employer and the Applicant on 12 June 2013.

[25] The contract of employment includes a heading entitled "Commencement date". The words that follow this heading are:

Your employment will commence on a date to be advised.

[26] In handwriting after those words is the following date:

[27] The Applicant's Position Description states that the Applicant was to start in her position on:

[28] The Applicant had also signed a Personnel Form on 22 June 2013. This Personnel Form indicated that the Applicant had completed two days of employment on 18 and 19 June 2013. The completed details on the form also establish that the "Date Employment Commenced" was 8 July 2013. The form also shows that the Applicant was entered onto the payroll on that same day (though the Applicant reasonably may not have been privy to that latter information at the time she signed the document as it was inserted in the "Office Use Only" window on the form.

[29] Ms Rush also tended further (supplementary) evidence that concerned email correspondence between the employer and the Applicant.

[30] By e-mail correspondence on 12 June 2013 it is evident that at that time the Applicant herself had not reached a conclusion as to "an exact start date" as she still needed at that time to discuss her circumstances with the outgoing employer. Further e-mail correspondence of 17 June 2013 shows that the employer itself was still to determine a start date for the Applicant.

[31] Ms Rush contends that the Applicant therefore commenced her employment on 8 July 2013.

[32] The Applicant for her part queried, though without a great deal of confidence, the genuineness of the signed Personnel Form.

[33] I initially reject the Applicant's argument, not strongly made, that her employment commenced the day following the offer of employment, which was 7 June 2013. In one email to the Commission she claimed to have been paid for that day. There is no evidence for this claim as to payment. Nor for any other days on which the Applicant visited the site for seemingly brief periods on 11 and 13 June 2013.

[34] Circumstances such as these do not constitute the entering into by the parties of legal relations involving the performance of work and consideration. In any event, the Applicant was in no position to commence employment at such a time. The email correspondence from the Applicant to the employer of 12 June 2013 referred to above shows this to be the case.

[35] If I accept, in the alternative, the Applicant's date of commencement of her employment relationship with her employer as being 18 June 2013), the Applicant's period of continuous employment with the employer was between 18 June 2013 and 10 December 2013.

[36] This is a period of service of five-month and 23 days.

[37] Therefore, even on the Applicant's own evidence, the Applicant cannot be said to have completed the minimum employment period.

[38] Notwithstanding this, my own view of the evidence set out above is that the Applicant commenced employment with the employer on 8 July 2013. There was no offer of continuing employment and acceptance of terms other than in respect of the commencement date of 8 July 2013. While payments were made for two training days in June 2013, these two days cannot affect the determination of the continuous period of employment for the purpose of establishing the minimum employment period.

[39] The application under s.394 of the Act, therefore, must be dismissed (on either chronological scenario) as the Applicant is not a person protected from unfair dismissal under s.382 of the Act because the Applicant had not completed the minimum employment period.

[40] Because I have so found I have not had reason to determine the remaining two objections to the application under s.382(b) of the Act and s.394(2) of the Act.

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