Adam Joseph Los v Ted Frazer Carpet Cleaning
[2022] FWC 499
| [2022] FWC 499 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Adam Joseph Los
v
Ted Frazer Carpet Cleaning
(U2021/10839)
| COMMISSIONER CIRKOVIC | MELBOURNE, 7 MARCH 2022 |
Application for relief from unfair dismissal – Jurisdictional objection – Minimum employment period – Application dismissed
On 25 November 2021, Mr Adam Joseph Los (the Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal by Ted Frazer Carpet Cleaning (the Respondent).
On 30 January 2022, the Respondent filed a Form F3 – Employer Response to Unfair Dismissal Application (Employer Response) to the Applicant’s Unfair Dismissal Application and raised the jurisdictional objection that the Applicant’s employment did not meet the minimum employment period and that the Applicant was lodged out of time.
This matter was heard on 7 March 2022 to determine whether the Applicant is a person protected from unfair dismissal. The Respondent had originally raised the objection that the application was out of time however, on 4 February 2021, Mr Stranaghan of the Respondent advised Chambers that the Respondent no longer wished to pursue this objection.
On 3 February 2022 my Chambers issued directions for the filing of materials with respect to both the out of time and minimum employment period objections. The Applicant did not submit materials in accordance with these directions. My Chambers sent correspondence to the Applicant on 1 March 2022 asking that he lodge his materials immediately and seek leave of the Commission for the late filing of his materials.
The Applicant’s representative contacted Chambers that day and confirmed that she received the directions and indicated to my associate that the Applicant would be requesting an adjournment of the hearing of 7 March 2022. The Applicant representative was advised that such a request would need to be made in writing with reasons for the adjournment provided.
Neither the Applicant nor the Applicant’s representative responded to the correspondence from my Chambers on 1 March 2022 nor put the request for an adjournment in writing and did not provide reasons for the request. The Applicant’s representative emailed Chambers on the morning of the hearing requesting an adjournment but did not provide reasons for seeking the adjournment. I determined the matter would proceed as listed.
At the hearing, the Applicant was represented by his support person Ms Amanda O’Rourke and gave evidence on his own behalf. Mr Andrew Stranaghan gave evidence for the Respondent. Mr Stranaghan is the manager and owner of the Respondent company.
Background
There is no contest that the Applicant’s employment with the Respondent commenced on 18 March 2021.
The Applicant stated in his Form F2 that the effective date of termination was 5 November 2021, the same day he was notified of the dismissal. The Respondent stated in its Form F3 response at question 1.4 that the dismissal took effect on 29 October 2021. In response question 1.3 of the Form F3, as to date the employer notified the Applicant, the Respondent states “he asked for an (sic) was given a certificate of separation on 11th November 2021.” At the hearing, Mr Stanaghan gave evidence that the Form F3 was completed in part from his dictation to Mr Kevin Nogurea, an employee that assists him.
At the hearing, Mr Stranaghan stated that a face-to-face conversation between him and the Applicant occurred on 29 October 2021 and that it was “the last day the Applicant worked for us”. Further, Mr Stranaghan produced a screenshot of a text message allegedly sent from the Applicant’s mobile phone number to Mr Stranaghan on 29 October 2021 stating:
“Seeing as though you fired me on the spot, i (sic) will be coming to pick up a separation certificate from you in the morning please have that ready for me.”[1]
For completeness, I note the Applicant denies having sent the messages but concedes the phone number appearing in the screenshot of the text message exchange was his own. I also note that despite the parties disagreeing as to the substance and nature as to the communications between them on 29 October 2021, it is common ground that there was an exchange that day between Mr Stranaghan and the Applicant and that it was the Applicant’s last day of work for the Respondent.
I also note that the Respondent produced a payslip for the Applicant for the period 17 October 2021 to 30 October 2021. Given the above, I am satisfied that the Applicant was aware that his employment had ceased on 29 October 2021 and that the effective date of termination was 29 October 2021.
On the basis of the material before me, I find that the Applicant commenced his employment with the Respondent on 18 March 2021 and his dismissal took effect on 29 October 2021. In those circumstances, the Application was not made within the 21-day statutory time limit, however given my findings at paragraph 22 of this decision, this finding has no bearing on the outcome of this application. Therefore, the Applicant was employed by the Respondent for a period of 7 months, 1 week and 4 days. I note that even if I am wrong and the Applicant’s effective date of termination was either 5 November 2021 or 11 November 2021, as advanced by the Applicant and Respondent respectively, my finding at paragraph 22 will not be disturbed.
Protection from unfair dismissal
Section 382 of the Act sets out the circumstances where a person is be protected from unfair dismissal. Section 382 of the Act is 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
(b) one or more of the following apply:
(i) a modern award covers the person;
(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.”
Section 383 of the Act defines the meaning of ‘minimum employment period’. Section 383 of the Act is as follows:
“383 Meaning of minimum employment period
The minimum employment period is:
(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;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer--one year ending at that time.”
Section 23 of the Act defines the meaning of ‘small business employer’. Section 23 of the Act is as follows:
“23 Meaning of small business employer
(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a)subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.
(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a) the employee who is being dismissed or whose employment is being terminated; and
(b)any other employee of the employer who is also being dismissed or whose employment is also being terminated.”
The Respondent states in its Employer Response Form F3 that it employed 12 people, 8 in Australia and 4 remote employees in the Philippines, immediately preceding the termination of the Applicant’s employment The Respondent also submitted a Screenshot from Xero (the accounting software the Respondent utilises for payroll purposes) which provided that there were 8 employees working for the Respondent at the time the Applicant’s employment ceased. During the hearing, the Respondent confirmed that the figure of 8 employees in Australia was accurate just before the Applicant’s employment ceased on 29 October 2021.
With respect to the 4 employees in the Philippines, Mr Stranaghan submitted in oral evidence that the four employees were “contractors” working for a company, “Stranaghan Enterprises”, registered in the Philippines and managed by Mr Stranaghan’s father-in-law. Mr Stranaghan confirmed that the owners of the Respondent company and Stranaghan Enterprises are the same. There is no material before me on the terms of engagement between the four contractors and Stranaghan Enterprises. Given the absence of material before me, I am unable to make a finding as to whether the four “contractors” are to be including in the assessment of the total number of employees for the purpose of s.23 of the Act. That said, I note that were those four employees added to the total employed in Australia, the Respondent would still have employed less than 15 employees at the time immediately preceding the termination of the Applicant’s employment.
On the basis of the above, I am satisfied that the Respondent is a small business employer within the meaning of s.23 of the Act.
Consideration
As I am satisfied that the Respondent is a small business employer, in order for the Applicant to be a person protected from unfair dismissal, I must find that the Applicant completed a period of employment with the Respondent of at least one year at the time the Applicant was given notice of the dismissal or immediately before the dismissal (whichever is earlier).
An employee’s period of employment commences on the employee’s first day at work.[2] As agreed between the parties and stated above, the Applicant’s employment commenced on 18 March 2021.
As found at paragraph 13 above, I found that the Applicant’s dismissal took effect on 29 October 2021.
Therefore, I find that the Applicant completed a period of employment with the Respondent that lasted some 7 months, 1 week and 4 days at the time the Applicant was dismissed on 29 October 2021. Accordingly, the Applicant did not complete the prescribed minimum employment period of one year and is therefore not a person protected from unfair dismissal pursuant to s.382 of the Act.
The application is therefore dismissed.
COMMISSIONER
Appearances:
Mr Adam Joseph Los (for himself)
Ms Amanda O’Rourke (for the Applicant)
Mr Andrew John Stranaghan (for the Respondent)
Hearing details:
10:00AM AEDT Monday 7 March 2022 by Microsoft Teams
[1] Text message exchange dated 29 October 2021 between Mr Adam Los and Mr Andrew Stranaghan.
[2] Corner v SkyCity Adelaide Pty Ltd (2011) 204 IR 63, [7]
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