Craig Thomas v MDG Labour Hire Pty Ltd

[2019] FWC 5709

[2019] FWC 5709

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Craig Thomas
v
MDG Labour Hire Pty Ltd
(U2019/5443)

DEPUTY PRESIDENT COLMAN MELBOURNE, 16 AUGUST 2019

Application for an unfair dismissal remedy – minimum employment period – less than six months’ service – application dismissed

[1] This decision concerns an application by Mr Craig Thomas for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act). Mr Thomas was employed as a dump truck driver on a casual basis by MDG Labour Hire Pty Ltd (MDG). His position was made redundant on 23 April 2019.

[2] MDG raised two jurisdictional objections to the application. First, it said that Mr Thomas was employed for only four months and two weeks, less than the minimum six month employment period required by the Act. Secondly, it submits that Mr Thomas’ application was lodged two days out of time, and that there are no exceptional circumstances that would warrant the Commission granting an extension of time under s 394(3).

[3] The company’s jurisdictional objections were heard before me this morning. I conducted the proceeding as a recorded conference. At the conclusion of the proceeding I advised the parties that the company’s first jurisdictional objection was upheld because it was clear that Mr Thomas had not served the minimum employment period. I stated that I would issue a brief written decision confirming my conclusion.

[4] The Commission can only order an unfair dismissal remedy if the applicant was a person ‘protected from unfair dismissal’ (s 390). This in turn requires the person to have completed a period of employment that is at least the minimum period of employment (s 382(a)). Section 383 provides that, if an employer is not a ‘small business employer’, as in the present case, the minimum employment period is six months.

[5] In accordance with directions of the Commission, the company filed a written submission and a statement of evidence of Ms Jenny-Ellen Kennedy, its general counsel, together with various documents. Mr Thomas did not file submissions or evidence in relation to the question of the minimum employment period, despite being afforded additional time to do so by Commissioner McKinnon at a non-compliance hearing on 26 July 2019. I note that, in his F2 unfair dismissal application form, Mr Thomas did not answer the question at item 1.1 of the form about when his employment commenced. He did however affirm that his employment ended on 23 April 2019.

[6] In the conference today, the company maintained that Mr Thomas commenced employment on 5 December 2018, and that his total employment period was therefore less than six months. Mr Thomas said that he thought his employment had commenced earlier than this, in October or November. He did not indicate any particular date.

[7] The company then pointed to the supporting documentation filed in the Commission and served on Mr Thomas. The copy of Mr Thomas’ contract of employment was undated. However the company had also submitted a tax file number declaration, a document entitled ‘new employee induction checklist’, and a document stating that Mr Thomas had been provided with a copy of the Fair Work Information Statement. All of these documents bear Mr Thomas’ signature and are dated 4 December 2018. Mr Thomas said that he remembered signing various documents at the start of his employment. He did not challenge the signatures or the dates on these documents.

[8] The evidence points clearly to a conclusion that Mr Thomas’ employment with the company commenced on 5 December 2018. Even accepting Mr Thomas’ submissions that all of his casual service counts towards the minimum employment period, on the basis that it was regular and systematic with a reasonable expectation of continuing employment, his total period of employment was still less than six months, spanning the period from 5 December 2018 to 23 April 2019. His unfair dismissal application therefore cannot proceed.

[9] It is not necessary for me to deal with the company’s second jurisdictional objection.

[10] I find that Mr Thomas has not served the minimum employment period. For this reason he is not a person protected from unfair dismissal. Mr Thomas’ unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

C Thomas for himself

J Kennedy for MDG Labour Hire Pty Ltd

Hearing details:

2019

Melbourne (by telephone):

16 August

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