Alex Copley v Tranmor Enterprises Pty Ltd T/A Maxiplas
[2022] FWC 1073
•9 MAY 2022
| [2022] FWC 1073 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Alex Copley
v
Tranmor Enterprises Pty Ltd T/A Maxiplas
(U2022/747)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 9 MAY 2022 |
Application for an unfair dismissal remedy – jurisdictional objection – minimum employment period – jurisdiction objection dismissed – minimum employment period met.
On 14 January 2022, Mr Alex Copley (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with Tranmor Enterprises Pty Ltd T/A Maxiplas (the Respondent) on 12 January 2022 was unfair.
The Respondent objects to the application on the basis that, at the time of his dismissal, the Applicant had not completed the minimum employment period (MEP) of 6 months as required under s.383(b) of the Act. Consequently, the Respondent contends that the Applicant is not entitled to pursue relief for his claimed unfair dismissal under the Act.
Determination of the Respondent’s jurisdictional objection in respect of the MEP was heard on 6 May 2022. Materials were filed by the Respondent in respect of its MEP jurisdictional objection and in accordance with directions issued by the Commission. The Applicant did not file any file any materials in response to the Respondent.
In proceeding with the hearing/conference on 6 May 2022, I determined to hold a conference pursuant to s.398 of the Act. The Applicant appeared on his own behalf at the conference and gave evidence. Mr Andrew Magers (Legal Counsel for Respondent) appeared for the Respondent and called Mr Stephen Hutchins (CFO for Respondent) to give evidence.
Background and evidence
The Applicant commenced a period of casual employment with the Respondent on 9 February 2021 which continued until 9 May 2021 at which point the Respondent’s operation was forced to close due to site lease issues. The Respondent subsequently moved and restarted its operations at a new site in mid-June 2021. In the period between closure of the former site on 9 May 2021 and reopening of the operation in mid-June 2021, the Applicant sought and obtained new employment. When approached by his former supervisor in mid-June 2021 enquiring as to his availability for work, the Applicant advised that if things did not work out with his new employer he would be interested. Approximately one week later the Applicant re-commenced employment with the Respondent.
The Applicant re-commenced employment on a casual basis with the Respondent on 23 June 2021 which continued until his termination of employment by the Respondent on 12 January 2021[1]. In the period between 23 June 2021 and 12 January 2022 the Applicant worked the following hours of work on a casual basis[2];
Week ending Hours 26 June 2021 30.24 3 July 2021 30.23 10 July 2021 45.38 17 July 2021 38 24 July 2021 45.16 31 July 2021 45.27 7 August 2021 34.48 14 August 2021 35.44 21 August 2021 37.55 28 August 2021 38 4 September 2021 38 11 September 2021 37.59 18 September 2021 30.24 25 September 2021 37.28 2 October 2021 37.58 9 October 2021 22.58 16 October 2021 37.29 23 October 2021 37.58 30 October 2021 38.02 6 November 2021 37.56 13 November 2021 30.21 20 November 2021 37 27 November 2021 38 4 December 2021 36.13 11 December 2021 30.24 18 December 2021 37.56 25 December 2021 0 1 January 2022 0 8 January 2022 22.07
The Respondent shut down its business in the period 17 December 2021- 4 January 2022 for its Christmas shutdown and did not offer the Applicant any work in that period. The Applicant worked his last shift on 7 January 2021 and was notified of his dismissal on 12 January 2021.
Statutory Provisions
Before considering the merits of the Applicant’s unfair dismissal application, the Commission is required by s.396 to decide certain matters. Section 396 provides as follows:
“396Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
It is not contested that the application was filed within the 21-day statutory timeframe specified in s.394(2) of the Act. Therefore, the next issue that must be determined is whether the Applicant is a person protected from unfair dismissal (s.396(b)). Relevantly for the purpose of the present matter, the question to be answered in respect of s.396(b) is that found at s 382(a) which states as follows;
“382When 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
…”
The minimum employment period is one year for a small business employer and six months for other employers, as provided by s.383 of the Act which states 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 384 defines the meaning of minimum employment period as follows;
“384 Period of employment
(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.
(2) However:
(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; …”
Section 22 of the Act defines the terms service and continuous service as follows;
“22 Meanings of service and continuous service
General meaning
(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).
(2) The following periods do not count as service:
(a)any period of unauthorised absence;
(b)any period of unpaid leave or unpaid authorised absence, other than:
(i)a period of absence under Division 8 of Part 2‑2 (which deals with community service leave); or
(ii)a period of stand down underPart 3‑5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or
(iii)a period of leave or absence of a kind prescribed by the regulations;
(c)any other period of a kind prescribed by the regulations.
(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.
…”
Before turning to consider the contentions of the parties it is useful to highlight the observations of the Full Bench in Wayne Shortland v The Smiths Snackfood Co Ltd[3] (Shortland v Smiths) where they said the following concerning what will constitute the minimum employment period of a casual employee;
“[13] Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury.”[4]
Consideration
From the above statutory provisions and on the authority of Shortland v Smiths I discern the following must be established to determine the Applicant’s period of employment in order to ascertain whether he had met the relevant MEP at the date of his dismissal;
(i)Was the Respondent a small business, such that MEP required to have been served was 12 months;
(ii)If the Respondent was not a small business, the MEP required to have been served by the Applicant will be 6 months;
(iii)Establish the Applicant’s period of employment by reference to the contiguous periods of service (that being the period of continuous service) which involved regular and systematic engagement during which periods of service the Applicant had an expectation of ongoing employment; and
(iv)Deduct from the period of continuous service any excluded periods to ascertain the Applicant’s period of employment for the purpose of establishing whether he served the MEP.
It is not in dispute that the Respondent is not a small business employer. Therefore, the MEP required to have been served by the Applicant is that of 6 months. Nor was it in contention between the parties, and I accept, that the Applicant was employed on a casual basis by the Respondent.
I discern from the Applicant’s evidence that he contends that his period of employment met the MEP, that his casual employment was on a regular and systematic basis and that he had a reasonable expectation of continuing employment during his period of service.
The Respondent contends that the Applicant did not meet the MEP. It submits that the first period of engagement as a casual employee between 9 February 2021 and 9 May 2021 ended when the plant closed following which the Applicant obtained alternate employment, and as such that period of engagement should not be included for the purpose of determining the Applicant’s period of employment.
In respect of the second period of engagement as a casual employee, the Respondent accepts that the period from 23 June 2021 to 12 January 2022 exceeds 6 months and that the Applicant was regularly and systematically engaged in that period, save for the period between 17 December 2021 and 4 January 2021 when the business closed for its Christmas shutdown. The Respondent contends that while the Applicant’s termination was communicated on 12 January 2021, his last shift was actually on 7 January 2021 and that the Christmas shutdown period should not count towards the Applicant’s period of employment for the purpose of determining whether the Applicant met the MEP.
The Respondent makes the above submission on the Christmas shutdown on the basis that the period from 17 December 2021 to 4 January 2022 was “unpaid leave” which is an excluded period, as defined at s.22(1) of the Act, for the purpose of calculating the Applicant’s period of employment. The Respondent further contends that while that excluded period may not break the continuous service of the Applicant, it must be deducted from the Applicant’s period of employment in calculating whether the Applicant met the MEP.
It is uncontested that the Applicant originally commenced employment with the Respondent as a casual employee on 9 February 2021 and ceased employment on 9 May 2021 when the previous site closed following which he sought and obtained alternate employment. I am satisfied that the site closure and the Applicant’s securing alternate employment evinces an intention that there would be no further engagements, thus breaking the period of continuous service. Consequently, and applying the authority of Shortland v Smiths, that initial period of casual employment is not to be counted for the purpose of establishing the Applicant’s period of employment.
Turning to the second period of casual engagements, the Respondent contends that the last shift worked by the Applicant on 7 January 2021 should be taken to be the end date of his period of employment. I disagree. While the Applicant was not engaged for any shifts after 7 January 2021, the date on which the Respondent made clear there would be no further shifts offered was 12 January 2022. Therefore, I am satisfied that the Applicant’s period of continuous service was from 23 June 2021 to 12 January 2022, that being a period of 6 months, 2 weeks and 6 days (203 days).
I am satisfied that the period from 23 June 2021 to 12 January 2022 involved an unbroken sequence of engagements and as such constitutes a period of continuous service. It is also apparent, and I find on the evidence that the Applicant was engaged on a regular and systematic basis during that period and had an expectation of ongoing employment during that period of service. While the Applicant was not offered shifts during the Christmas shutdown from 17 December 2021 to 4 January 2022, which period the Respondent characterised as “unpaid leave”, that break does not constitute an interruption of the continuous service as neither party made clear there would be no further engagements beyond that shutdown.
If the Respondent is correct in its submissions that the period from 17 December 2021 to 4 January 2022 is a period of “unpaid leave” that as an excluded period must be deducted from the period of continuous service, that would result in a deduction of 2 weeks and 4 days (18 days) from the Applicant’s period of continuous service of 6 months, 2 weeks and 6 days (203 days). The Applicant’s period of employment would therefore be 6 months and 2 days (185 days) and on that basis he will have served the MEP of 6 months with the Respondent.
Notwithstanding that the Applicant appears to have met the MEP on the above analysis, I doubt the correctness of Respondent’s submission that the period of 17 December 2021 to 4 January 2022 must be deducted from the Applicants period of employment. Nothing may turn on this if my above analysis is correct that the MEP has been met. However, in the event my analysis above is incorrect it is appropriate for me to deal with Respondent’s argument that the period from 17 December 2021 to 4 January 2022 is an excluded period for the purpose of calculating the Applicant’s period of employment.
As I have previously stated, the Applicant has established a period of continuous service from 23 June 2021 to 12 January 2022, that being a period of 6 months, 2 weeks and 6 days (203 days). The Respondent contends that pursuant to the definition of service found at s.22 of the Act, the period from 17 December 2021 to 4 January 2022 was a period of “unpaid leave” and as such is an excluded period and while not breaking the period of the Applicant’s continuous service, does not count as service for the purpose of calculating the period of employment. The Full Bench in Affinity Education Group Limited v Kogler[5] (Kogler), when considering the period of employment of a casual employee, relevantly stated the following;
“[7] It is therefore necessary for Affinity Education’s jurisdictional objection to be determined. However, we do not consider that the evidence as it currently stands permits this Full Bench to undertake this task. We consider that the expressions “unpaid leave” and “unpaid authorised absence” in s.22(2)(b) connote periods of time off work which, but for the permission or authorisation of the employer, would have been expected if not required to have been worked by the employee. In the case of a casual employee, this raises issues of some complexity, since according to normal legal concepts of casual employment a casual employee is offered and may accept or reject work on a day by day basis. When a casual employee does not work on a given day, it may be difficult absent appropriate evidence to determine whether the day was taken off as leave or an absence authorised by the employer, or whether the employee simply chose not to make himself or herself available for work that day.” (emphasis added)
The Full Bench in Kogler highlighted the challenge of determining whether a particular absence of a casual employee could be characterised as “unpaid leave” or an “unpaid authorised absence.” I agree with the Full Bench’s observation that the terms “unpaid leave” and “unpaid authorised absence” “connote periods of time off work which, but for the permission or authorisation of the employer, would have been expected if not required to have been worked by the employee.”
In the present circumstances the Applicant would not have been offered or required to work but for the “unpaid leave.” That is for the simple reason that no work was available due to the Christmas shutdown of the Respondent. I do not agree with the Respondent that it constitutes a period of “unpaid leave” . Rather, it was a period that the Applicant was not offered work due to the operational requirements of the business. That has a different character to and may be contrasted with for example a period of authorised leave sought by the Applicant, but for which authorised leave he would have been offered and expected to work.
It follows from the above that the period from 17 December 2021 to 4 January 2021 was not a period of “unpaid leave or unpaid authorised absence” as that term is used in s.22 of the Act. Consequently, it is not an excluded period and must be counted as service for the purpose of calculating the Applicant’s period of employment.
I am satisfied that the Applicant has served a period of 6 months 2 weeks and 6 days (203 days) with the Respondent, that being a period in excess of the MEP of 6 months. I have reached this conclusion, on the basis that the period from 17 December 2021 to 4 January 2022 (18 days), is not an excluded period and is to be counted in the Applicant’s period of employment. If I am wrong in that conclusion, the Applicant still meets the MEP, with a period of employment of 6 months and 2 days (185 days) if the period of 18 days is not counted in the calculation of his period of employment.
Conclusion
I have found that the Applicant has met the MEP. Consequently, the Respondent’s jurisdictional objection is dismissed. The matter will now be programmed for hearing of the merits of the Applicant’s application for an unfair dismissal remedy.
DEPUTY PRESIDENT
Appearances:
A Copley, Applicant.
A Magers for the Respondent.
Hearing details:
2022.
Melbourne (by Microsoft Teams):
May 6.
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[1] Ibid at [4].
[2] Ibid, Attachment 1, Applicant Pay Summary.
[3] [2010] FWAFB 5709.
[4] Ibid at [13].
[5] [2014] FWCFB 8752.
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