Bill Parzinkas v M Square Projects Pty Ltd T/A Signarama Brunswick West

[2018] FWC 4293

[2018] FWC 4293

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bill Parzinkas
v
M Square Projects Pty Ltd T/A Signarama Brunswick West
(U2018/2834)

COMMISSIONER MCKINNON MELBOURNE, 20 JULY 2018

Unfair dismissal – jurisdictional objection – whether employee met the minimum employment period – objection dismissed.

[1] On 19 March 2018, Mr Bill Parzinkas applied to the Commission under section 394 of the Fair Work Act 2009 (the Act) for a remedy in relation to alleged unfair dismissal. Mr Parzinkas alleges that his employment was terminated by M Square Projects Pty Ltd T/A Signarama Brunswick West (Signarama) on 6 March 2018.

[2] On 16 April 2018, Signarama filed a Form F3 with the Commission, objecting to the application on jurisdictional grounds on the basis that:

1. Mr Parzinkas’ dismissal was a case of genuine redundancy as described under section 389;

2. In the alternative, Signarama was a small business as described in section 23 and the dismissal was consistent with the Small Business Fair Dismissal Code.

[3] On 13 June 2018, Signarama filed a Form F4 further objecting to the application on the grounds that Mr Parzinkas has not served the minimum employment period under section 383 of the Act and accordingly is not a person “protected from unfair dismissal” under section 382.

[4] On 20 July 2018, I dismissed the objection in relation to the minimum employment period. These are my reasons.

Preliminary issues

[5] Mr Parzinkas’ application was filed on 19 March 2018. There is no dispute that his employment was terminated on 6 March 2018 and, in accordance with section 396 of the Act, I find that his application was filed within 21 days after the dismissal took effect.

[6] Signarama says it employed 3 employees. This fact is not disputed by Mr Parzinkas and I have no reason to doubt it. I am satisfied on the evidence that the respondent was at the time of Mr Parzinkas’s cessation of employment a small business employer within the meaning of the Act. It follows that the minimum employment period in this case is 12 months. 1

Consideration

[7] To be protected from unfair dismissal, Mr Parzinkas must have been employed by Signaram for at least the minimum employment period. 2 A period of service with an employer is defined in section 22 of the Act as a period of employment that, relevantly, excludes certain periods of unauthorised absence and unpaid leave or unpaid authorised absence.

[8] The parties agree that Mr Parzinkas was employed by Signarama from 27 February 2017 until 6 March 2018. However, Signarama says that once leave taken by Mr Parzinkas during his employment is deducted, Mr Parzinkas’s service was less than the minimum employment period of 12 months.

[9] Signarama filed a Form F3 and Form F4 as well as a brief email statement of Mr Arafat Adams 3, which includes the following:

“He was absent to the office several days and he took 2 weeks complete off during his mother’s death.”

“I can also confirm he did not work 1 Full year in our office because he had several leaves that are considered unpaid leaves because his leaves were exhausted.”

[10] I take from this statement the contention by Signarama that a period of paid leave in excess of an employee’s leave entitlements is properly characterised as ‘unpaid leave’. However, whether a period of leave is paid or unpaid is a question of fact. There is no reason to consider the provision of paid leave in excess of an employee’s entitlement any differently from what it is – that is, paid leave.

[11] Mr Adams gave evidence at the hearing of the jurisdictional objection on 20 July 2018. He confirmed that Mr Parzinkas took leave on a number of occasions including a two week period at the end of January 2018 when his mother died and on individual days when he was sick or stressed. He agreed that each leave period was agreed to, and paid for by, Signarama.

[12] Mr Adams gave evidence that Mr Parzinkas left work early on a number of occasions. I accept this evidence which was not contradicted. However, there is insufficient material before me to identify the totality of those absences. On that basis, I am able to ascertain the effect, if any, on the period of Mr Parzinkas’ employment.

[13] Mr Parzinkas gave evidence that he was absent for a two week period from 17 January 2018 to 29 January 2018 in connection with his mothers’ death. He also agreed that he took leave from time to time and that he was paid on each occasion. There is a dispute about the total amount of leave taken by Mr Parzinkas during his employment and whether it was in excess of his accrued entitlements, but nothing turns on it. The relevant questions are whether leave taken was paid, and whether absences from work were authorised.

[14] I find that all leave taken by Mr Parzinkas during his employment was paid leave.

[15] I find that Mr Parzinkas was absent from work from 17 to 29 January 2018 and that this absence was agreed to, and paid for by, Signarama.

[16] I find that Mr Parzinkas also took individual days of leave from time to time during his employment, and that he was paid for these days by Signarama.

[17] I am not satisfied on the material before me that Mr Parzinkas was absent from work without authorisation for a period that would reduce his service to less than twelve months.

Conclusion

[18] I find that there is no relevant period of unpaid leave or unauthorised absence that is taken to reduce Mr Parzinkas’ period of service as an employee of Signarama to less than twelve months, having regard to section 22.

[19] These reasons form the basis of my decision to dismiss the jurisdictional objection in relation to the minimum employment period.

[20] The matter will now be referred for conciliation.

COMMISSIONER

Appearances:

N Dircks for the Applicant

A Adams for M Square Projects Pty Ltd

Hearing details:

2018.

Melbourne:

July 20.

Printed by authority of the Commonwealth Government Printer

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 1    Fair Work Act 2009, s.382(a); s.383(b)

 2    Fair Work Act 2009, s.382(a); s.383(b)

 3   Email to the Commission from Arafat Adams and Rashick Ali dated 6 July 2018