Daniel Renata v Att Logistics Pty Ltd T/A Amalgamated Taxi Trucks

[2014] FWC 3010

[2014] FWC 3047

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Malcolm Harris
v
SX Projects Pty Ltd
(U2013/17556)

DEPUTY PRESIDENT BOOTH SYDNEY, 9 MAY 2014

Termination of employment - application for unfair dismissal remedy - jurisdiction - high income threshold - minimum employment period.

[1] Mr Malcolm Harris worked as a construction project site manager with SX Projects Pty Ltd until 28 November 2014. He was given notice of dismissal on 18 November 2014 by email. The email contained no reasons for dismissal. He was told by Construction Manager, Mr Stephen Millard by telephone that he “was being made redundant...due to my apparent uncertainty of my future employment plans with the company and my apparent altercation via email with another staff member”. 1

[2] Mr Harris has made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy.

[3] SX Projects Pty Ltd has objected to his application being made on the grounds that Mr Harris’s employment does not meet the minimum employment period and his annual rate of earnings was greater that the high income threshold (currently $129,300 per annum). 2

[4] The matter came before me for hearing on 7 March 2014. SX Projects Pty Ltd was represented by Ms Kate O’Connell, Chief Financial Officer and Mr Harris represented himself. Although directions had been given on 14 February 2014 for SX Projects Pty Ltd to file submissions in support of its jurisdictional objection 14 days prior to the hearing, its material was only supplied to the Commission and Mr Harris on 6 March 2014. However, Mr Harris was satisfied that most of this material had already been seen by him and he was prepared to respond to the jurisdictional objection. Although not directed to, Mr Harris provided submissions to the Commission on 5 March 2014 and these submissions were supplied to Ms O’Connell on the day of hearing. I adjourned the hearing to allow time for Ms O’Connell to read these submissions.

[5] I allowed further time beyond the day of hearing for Mr Harris to provide any further information about his use of his private motor vehicle for work related purposes and for Ms O’Connell to consider the relevance of s.22 of the Act to her submission in relation to Mr Harris’s continuity of service for the purpose of calculating the minimum employment period.

[6] Mr Harris supplied some material on 4 April 2014. Amongst this material were statutory declarations dated 13 March 2014 from Mr Scott Sturt, former Construction Foreperson, SX Projects Pty Ltd and from Mr Steven Baker, Building Operations Manager, Winston Hills Mall, dated 1 April 2014. Ms O’Connell also provided a statutory declaration from Mr Daniel Lipari of SX Projects Pty Ltd dated 4 April 2014. I have had no regard to these Statutory Declarations as Mr Sturt, Mr Baker and Mr Lipari did not give evidence before me.

[7] Ms O’Connell did not take the opportunity of making any further submissions in relation to s.22 of the Act.

[8] SX Projects Pty Ltd bears the onus in satisfying the Commission of the validity of their jurisdictional objection to Mr Harris’s application, that is, that Mr Harris is not protected from unfair dismissal. To be protected from unfair dismissal Mr Harris must have completed the minimum employment period and either be covered by a modern award or an enterprise agreement or have received annual rate of earnings less than the high income threshold. It was common ground between the parties that he was not covered by a modern award or an enterprise agreement.

[9] Section 382 of the Act reads 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.

Note: High income threshold indexed to $129,300 from 1 July 2013

Minimum employment period

[10] SX Projects Pty Ltd employed 55 employees at the time or immediately prior to Mr Harris’s dismissal and accordingly, pursuant to s.383 of the Act, the minimum employment period was six months.

[11] Section 383 of the Act reads 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.

[12] The calculation of Mr Harris’s period of employment is in contention. Section 384 of the Act makes clear that the period of employment is the period of continuous service the employee has completed with the employer.

[13] Section 384 of the Act reads 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; 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.

[14] It is not contended that Mr Harris is a casual employee.

[15] Ms O’Connell contended that Mr Harris was employed by SX Projects Pty Ltd on 1 July 2013 and as the date his dismissal took effect was 28 November 2013 his period of employment was less than 5 months. As such it was less than the minimum employment period of 6 months for an employer, such as SX Projects Pty Ltd , that employs more than 15 employees.

[16] On the other hand Mr Harris submits that he has been employed by SX Projects Pty Ltd since 30 January 2006 when he commenced his employment with Southern Cross Constructions (NSW) Pty Ltd. He says his employment was transferred to an associated entity, SX Projects Pty Ltd or SX Projects (NSW) Pty Ltd on 1 September 2012 and ag