Alexander Giulianetti v Centrella Gyms t/as Anytime Fitness Parafield

[2015] FWC 6400

[2015] FWC 6400

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Alexander Giulianetti
v
Centrella Gyms t/as Anytime Fitness Parafield
(U2015/5995)

DEPUTY PRESIDENT SAMS SYDNEY, 15 SEPTEMBER 2015

Application for remedy for unfair dismissal – dismissal for misconduct – gym employee – criminal charges pending - failure to comply with directions – failure to attend proceedings – no explanation - minimum employment period not met – applicant not a person protected from unfair dismissal – application dismissed.

[1] On 18 June 2015, Mr Alexander Giulianetti (the ‘applicant’) filed an application for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). The applicant had been employed as a Gym Club Manager by Centrella Gyms t/as Anytime Fitness (the ‘respondent’) in Parafield, South Australia. He was dismissed in the afternoon of 4 June 2015 after he had earlier been arrested in the gym by Police, in front of members and staff. He was subsequently charged with unlawfully being in possession of steroids, selling prescription drugs and money laundering. Criminal proceedings are pending.

[2] In its Form F3 Employer’s Response, the respondent raised two jurisdictional objections to the application; firstly, that the applicant had not completed the minimum employment period, as required by s 382 of the Act and, secondly, that the applicant had been dismissed in accordance with the Small Business Fair Dismissal Code (the ‘Code’) (ss 385 and 388) as the respondent employed ten employees at the relevant time and it was therefore a Small Business Employer, as defined in s 14 of the Act.

[3] This application has had a rather unfortunate history, which I need not traverse in great detail - suffice to observe that the application first filed was both incomplete and incorrectly filled out; the applicant failed to attend a phone directions hearing on 5 August 2015; the applicant sought (unsuccessfully) to adjourn his case pending the outcome of the criminal proceedings against him; failed to comply with directions for the hearing of the jurisdictional objections and he failed to attend the hearing on 5 September 2015, without any explanation.

[4] As to the applicant’s request for an adjournment, I note that the applicant was informed by myself and His Honour SDP O’Callaghan that the determination of the jurisdictional objections were unrelated to the criminal proceedings and therefore irrelevant to the outcome of those proceedings. In addition, I observe that the applicant was informed, on a number of occasions that a failure to comply with the Fair Work Commission’s directions and/or attend the hearing, risked his application being dismissed, pursuant to s 399A of Act.

[5] The jurisdictional objections were listed for hearing on 5 September 2015. Mr Centrella appeared for the respondent. There was no appearance for, or on behalf of the applicant and no advice from him that he would not be attending the hearing, let alone any explanation for his non-attendance.

[6] Mr Centrella referred to and relied on a witness statement of Mr Robert Kovacic on behalf of the respondent. Relevantly, the documents attached to Mr Kovacic’s statement were:

(a) a signed copy of the applicant’s contract of employment which discloses at cl 3 that the applicant commenced employment on 30 April 2015; and
(b) an employee total hours report from 1 June 2015 to 14 June 2015, disclosing that during this period, the respondent engaged ten employees, including the applicant, as at 4 June 2015.

CONSIDERATION

[1] In my opinion, this matter can be dismissed on a number of bases, including the applicant’s consistent failure to comply with the Commission’s directions (s 399A of the Act). Nevertheless, it seems to me that the application can be readily dismissed on the ground that the applicant did not have the requisite minimum employment period with the employer. I explain my reasons for doing so.

[2] This application was made under s 394 of the Act; typically described as an unfair dismissal application. An application of this kind can only be made by a person who is protected from unfair dismissal as described in s 382 of the Act, which is expressed 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.

[3] The definition of ‘minimum employment’ period for the purposes of s 382(a) is to be found at s 383 and 384 of the Act 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.

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; and

(b) if:

(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.

[4] Notwithstanding that the applicant has not addressed this objection one way or the other, the unequivocal documentary evidence, being the applicant’s contract of employment, is that he commenced employment on 30 April 2015. As the applicant was dismissed on 17 June 2015 - some five weeks later - the applicant had not completed the minimum employment period, irrespective of whether the respondent was a Small Business Employer.

[5] It follows that the applicant was not a person protected from unfair dismissal and, axiomatically, is not able to make an application for an unfair dismissal application, pursuant to s 394 of the Act in respect to his employment with the respondent. I will make orders to dismiss this application, which will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

No appearance for the applicant.

Mr Centrella for the respondent.

Hearing details:

2015

Adelaide:

3 September

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