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[2023] FWC 1004
General information, not legal advice.
Fair Work Commission
2023-04-28
Original judgment source is linked above.
s.394 - Unfair dismissal
Application for Unfair Dismissal Remedy - Applicant does not meet the minimum employment period - Application dismissed.
[1] On 18 November 2022, Ms Vanessa Walker (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against Workcon (Qld) Pty Ltd.
[2] The matter was listed for a conciliation before a Commission Conciliator on 17 February 2023 but did not settle. The matter was then allocated to me, and I listed the matter for a Directions Hearing on 23 March 2023. The matter was listed for hearing on 27 April 2023 via Microsoft Teams Video.
[3] The Applicant began her employment as a casual employee on 19 December 2021 as a Traffic Controller. It is common ground that the Applicant remained a casual employee for the entire period of her employment with the Respondent.
[4] The Applicant alleges that in August 2022, she began communicating with her employer regarding some 'incidents' whereby the Applicant alleges to have been sexually assaulted by other employees. The Respondent alleges that the Applicant was not dismissed and instead resigned by way of text messages received on 25 October 2022.
[5] In the Form F3 - Employer response to unfair dismissal application, the Respondent objected to the application on the basis that Ms Walker had not been dismissed in accordance with s. 386 of the Act. The Respondent did not raise an objection in relation to the issue of whether the Applicant satisfied the minimum employment period.
[6] After all the material had been filed, the jurisdictional issue whether the Applicant could satisfy the minimum employment period became apparent. It is not in dispute that the Respondent is not a small business and thus the applicable minimum employment period, pursuant to s.383 of the Act, is 6 months.
"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."
(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.
(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."
[9] It is common ground that the Applicant commenced employment on 19 December 2021.
[10] The Respondent submitted payroll advice for the period it says the Applicant was employed with the Respondent. This indicated the Applicant was paid weekly and these payments were made on:
[11] The Applicant submitted her dismissal took effect on 31 October 2022.
[12] The day prior to the hearing, my chambers emailed the parties seeking that the parties advise if Ms Walker worked between January 2022 and June 2022 and if so, to provide payslips from this period. Ms Walker maintained that she did some work during this period for an entity called 'Moonyah'. Ms Walker submitted that her payslips had varied between Workcon Civil, Workcon Queensland and Moonyah. I asked Ms Ashley Carroll, HR Advisor for the Respondent, if these were related or associated entities of the Respondent and she said Moonyah is not. Ms Carroll said at some point, they were associated entities, but they had been separated for a period of time. Ms Carroll stated that the ute Ms Walker used was a Moonyah ute which was hired from Moonyah.
[13] I requested further material from the parties including that:
Further material supplied by the parties after the hearing
[14] In its further material, the Respondent noted Ms Walker did not work at Workcon Civil in the period from January 2022 to June 2022. The Respondent attached 3 payslips for this period from Workcon Queensland which included pay periods of:
[15] The Respondent also submitted that Moonyah was not a related entity.
[16] The Applicant submitted various payslips. However, these payslips indicated that Ms Walker worked for the Respondent in the week ending 26 December 2021 and then not again until the week commencing 13 June 2022. Ms Walker submitted two payslips from Moonyah which indicated she worked for them from the period of 31 January 2022 to 6 February 2022 and 13 June 2022 to 19 June 2022.
[17] The Applicant said in an email that in March, April, May and June 2022 she was engaged in upskilling.
[18] Based on the material before me I accept the Applicant was a regular casual employee, and had a reasonable expectation of continuing employment on a regular and systematic basis during the period from 13 June to 31 October 2022. This is a period of approximately four and a half months. I am not satisfied that between the period from 19 December 2021 to 12 June 2022 the Applicant was a regular casual employee of the Respondent and during this period of service had a reasonable expectation of continuing employment on a regular and systematic basis with the Respondent. Even if I were to accept periods of employment with Moonyah should be counted it would still not alter my conclusion that the period from 19 December 2021 to 12 June 2022 does not count.
[19] I am satisfied the Applicant has not completed the required minimum employment period and the application must be dismissed because the period of employment required to be served under ss.382-383 has not been served. The Applicant is not a person protected from unfair dismissal by s.382. I am therefore required to dismiss her application. An Order to this effect is contained in PR761469.
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Vanessa Walker
Workcon