David Pope v Water Dynamics Pty Ltd
[2016] FWC 6451
•19 SEPTEMBER 2016
| [2016] FWC 6451 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
David Pope
v
Water Dynamics Pty Ltd
(U2016/6750)
COMMISSIONER LEE | MELBOURNE, 19 SEPTEMBER 2016 |
Application for relief from unfair dismissal - jurisdictional objection - s.383 Fair Work Act 2009 - minimum employment period - was there a break in continuity of employment?
[1] This decision relates to an application made by Mr David Pope (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy alleging that the termination of his employment from Water Dynamics Pty Ltd (the Respondent) was harsh, unjust and or unreasonable.
[2] The Respondent in this matter has raised a jurisdictional objection to the application, alleging that the Applicant was not an employee who has completed a period of employment with the Respondent of at least the minimum employment period (the jurisdictional objection) and was therefore not a person protected from unfair dismissal. The Respondent was not a small business at the time of the dismissal. Therefore, the Applicant’s required minimum employment period prior to dismissal is six months, for the Applicant to be protected from unfair dismissal. This decision relates to the jurisdictional objection only.
[3] The Respondent submits that the Applicant’s employment took place in two distinct periods, the first period of time from 8 July 2015 until 8 January 2016 and the second period from 12 January 2016 until he was dismissed on 29 April 2016. The Respondent contends that the employment relationship ended on Friday 8 January 2016 by way of dismissal and that employment recommenced on the Tuesday, 12 January 2016. The Respondent contends that as the second period of employment is less than 6 months, and the first period of employment cannot be counted, that the Applicant has not served the minimum employment period.
Relevant legislation
[4] Section 382 of the Act relevantly provides:
“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.”
[5] Minimum employment period is defined in s.383 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.”
[6] The period of employment is defined by s.384 of the Act 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.”
[7] The terms of service and continuous service are defined by s.22 of the Act 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.
(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.
Meaning for Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2
(4) For the purposes of Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2:
(a) 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:
(i) any period of unauthorised absence; or
(ii) any other period of a kind prescribed by the regulations; and
(b) a period referred to in subparagraph (a)(i) or (ii) 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; and
(c) subsections (1), (2) and (3) do not apply.
Note: Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2 deal, respectively, with requests for flexible working arrangements, parental leave and related entitlements, and notice of termination or payment in lieu of notice.
(4A) Regulations made for the purposes of subparagraph (4)(a)(ii) may prescribe different kinds of periods for the purposes of different provisions to which subsection (4) applies. If they do so, paragraph (4)(b) applies accordingly.”
The submissions
[8] It is common ground that the Applicant commenced employment with the Respondent in the role of Sales Representative on 8 July 2015. The Applicant was subject to a 6 month probationary period. The Applicant’s hours of work are detailed in Schedule A of the Employment Agreement as 8am – 5pm Monday to Friday… and as required and requested, one Saturday per month from 8.30am to 12am (3.5 hours per month). 1
[9] The Respondent submitted that on 17 December 2015 that Mr Adam Wright, the Applicant’s direct manager met with the Applicant to confirm that his performance was unsatisfactory and that an “end of probation meeting” was to be held between the Respondent and the Applicant on 4 January 2016.
[10] The Respondent submits that the meeting occurred on 4 January 2016 between the Applicant and his direct supervisor, Mr Wright. At that meeting it is claimed Mr Wright formally gave the Applicant one weeks’ notice of termination of his employment with the Respondent on the grounds of poor performance and that the Applicant was advised that his employment was to cease on 8 January 2016.
[11] It is further submitted that, at the same meeting, the Applicant was offered by the Respondent a new contract in the same role of Sales Representative that the Applicant was already employed as. The only change in contractual terms was that the new contract offered provided for a maximum term of 3 months. The commencement date of the new contract was 12 January 2016. Other than the new contract of employment having a fixed term, Mr Davis agreed that the terms and conditions offered were identical to that performed by the Applicant in his last 6 months of employment. 2 The Applicant accepted that new contract at the 4th of January meeting and signed it on that day. At the expiration of that contract on 12 April 2016, a second contract was entered into, which Mr Davis referred to as “just extension of that fixed term contract”.3 The employer terminated the Applicant’s employment on 6 May 2016, prior to the expiration of the second fixed term contract.
[12] The Respondent submits that the Applicant’s first period of employment cannot be counted as part of the overall period of continuous service for the purposes of section 384 of the Act given the break in service, that is, the termination of his employment on 8 January 2016.
[13] The Applicant submits that he served continuously in employment without any break or separation from 8 July 2015 to 6 May 2016, a period of almost 10 months. Importantly, the Applicant does not agree that his employment terminated on Friday 8 January 2016. The Applicant submits that he worked on all of the days in the relevant period including the Monday, 11 January 2016. The Applicant submits that there was no break in his employment and that he meets the minimum employment period.
Evidence
[14] It is not in contest that the Applicant’s leave entitlements were paid out at the conclusion of the first 6 months of employment. However, the Applicant gave evidence that he only became aware of this fact on Tuesday 12 January 2016. 4 However, Mr Wright’s evidence is that he informed the Applicant on 4 January 2016 that he would be paid out all outstanding entitlements.5 It is not in dispute that the Applicant worked until Friday 8 January 2016. It is also not in dispute that the Applicant met with Mr Wright on 4 January 2016 and at that meeting Mr Wright offered the Applicant a fixed term contract that had a starting date of 12 January 2016. The fixed term contract contained identical terms and conditions and was for an identical role. The Applicant signed that fixed term contract on that same day, being 4 January 2016. There is a dispute about what else was discussed at the 4 January meeting.
[15] It is clear from the evidence that Mr Davis, the acting Chief Executive Officer had in mind that he would terminate the Applicant’s employment, allow for a break in service of one day (the 11th of January) and then immediately re-employ the Applicant on a 3 month contract. That much is clear from the email that he sent to Mr Bell and Mr Wright on 21 December 2015 which is in the following terms:
“Hi Gents
Just to be sure there is no confusion in how the process will flow with David Pope if you were to consider offering a fixed term agreement.
Please review the following.
You will be giving David 1 weeks’ notice on the 4th of January that you are terminating his employment. You will need to send the approval to terminate form to Berni so this can all be sorted.
If you wish to offer David a fixed term contract I suggest we do it for a 3 month period.
The process would unfold as follows.
1. Meet with him on 4th of January as planned and give him the 1 weeks’ notice.
2. Offer him the opportunity of working on a fixed term contract for 3 months.
3. If he agrees have him work the remainder of the week in the branch.
4. Give him Monday the 11th off (so there is a break in his employment) and ask him to come in on the 12th.
5. On the 12th give him his fixed term contract and ask him to sign it.
Note:
- all of his entitlements will be paid out when his employment is terminated.
- If we decide to reemploy at the end of the fixed term contract we would draft a new agreement.
- There would not be another probation period as this is deemed to have been served.
- For the purposes of LSL calculation his start date would be deemed as his original start date.
Please confirm you intentions asap so we can put the necessary documents in order.
Regards Steve” 6
[16] However, Mr Davis was not directly involved in the key discussions with the Applicant about his purported termination and re-engagement. That role fell to Mr Wright the direct supervisor of the Applicant.
[17] While it is apparent that Mr Davis had made a decision to terminate the employment of the Applicant at the end of his probationary period, it is apparent the key question is whether or not the termination of employment actually occurred or whether the Applicant simply continued in his employment beyond the end of his probationary period.
[18] The means by which the Applicant was said to have been advised he was terminated from his first engagement was verbally by Mr Wright at a meeting on 4 January 2016. Mr Wright said in his statement that in the meeting on 4 January 2016, he gave the Applicant notice that his employment with the Respondent was to terminate on 8 January 2016 due to poor performance. Further that he had not successfully completed his probation due to his poor performance. 7 Mr Wright’s evidence was that during the meeting, he believed he was “extremely clear to David in relation to the termination of his permanent full time employment with Water Dynamics and the opportunity for David to be reengaged with Water Dynamics, if he so wished”.8
[19] However, the Applicant’s characterisation of the conversation on 4 January 2016 was quite different to that of Mr Wright. The Applicant’s evidence as to what occurred in the meeting is set out in paragraph 6 of his statement as follows:
“On 4th January I attended the arranged meeting with Mr ‘Adam Wright’ to discuss my employment probation. see DP-7
The further discussion consisted of the following words spoken and recalled to the best of my ability.
I said: Well how did I go with probation?
He said: I have been authorised to offer you an extension of your employment.
I said: Well that’s good news, it’s a good birthday present for tomorrow.
He said: Yep.
Mr ‘Adam Wright’ then passed over the new employment agreement that was on his desk for me to sign.
I said: Did I get a pay rise?
He said: No pay rise, same expectations, same money, same vehicle, same hours, same job. If all continues to go well, we will get you to sigh [sic] another one in April.
I said: OK, all good.
I then signed the agreement on the 4th January as dated. See DP-6” 9
[20] At the hearing, I asked Mr Wright to comment on the Applicant’s characterisation of the meeting of 4 January. His evidence was as follows:
The Commissioner: “All right. So take me through it. What do you say is right and what do you say is wrong and why?”
Mr Wright: “Okay. (Indistinct). The conversation didn’t start with, “How did I go with my probation?”“
The Commissioner: “Yes, what happened?”
Mr Wright: “As I said before, we - we spoke about - we went through results and then it changed to about probation. So it was more me raising it, not him saying, “How did I go?”“
The Commissioner: “Yes.”
Mr Wright: “From that, I informed him - as I said, I informed him that - that he’d failed his probationary period, however, we were prepared to offer him a new contract.”
The Commissioner: “Yes.”
Mr Wright: “Well, that’s good news. He was in the way of (indistinct). It was more about the fact that he was disappointed that he initially thought he was finishing up.”
The Commissioner: “Yes.”
Mr Wright: (Indistinct)
The Commissioner: “Yes.”
Mr Wright: “So then it was, “Hang on a minute. It’s not the end of the world.”“
The Commissioner: “Because you’re offering him continuing employment.”
Mr Wright: “Because I’m offering him and - instead a (indistinct) contract extension or a new contract. So it’s not the end of the world, however, to be successful in this, this is what we need you to do.”
The Commissioner: “Which is what?”
Mr Wright: “Get some sales and, more importantly, can you please, please tell me where you are going and what you are doing? It makes my life a lot easier.”
The Commissioner: “Yes. So you impressed on him the need to meet performance standards?”
Mr Wright: “Have - on those two particular points, have done since August.”
The Commissioner: “Yes, all right. And then you want to keep on going? So - - -”
Mr Wright: ““Do I get a pay rise?” “No pay rise. No pay rise.”“
The Commissioner: “Yes.”
Mr Wright: “That’s correct.”
The Commissioner: “Yes, agree with all of that.”
Mr Wright: “Yes. He said, “Same expectations?”. Yes, we reiterate the expectations. Can you please - I don’t know about “All going well” (indistinct). I didn’t specify a date in regards to that contract and when it ends and whatnot.”
The Commissioner: “Yes. So anything missing from that conversation from your perspective? That’s pretty much how it went?”
Mr Wright: “Yes, well, as I said, there’s a little bit in regards to, hey, this is the new contract. We touched on what the contract involved, please understand you finish up. There is a day of separation in between the two. Don’t come to work. You’ll be paid your super, paid - you’ll be paid out your holidays, your sick leave - a little bit of sick leave because there was - wasn’t much left - and there was 50 odd hours of that would be paid out. You start on Tuesday, the 12th. You can have Monday off. Do not come to work, mate. Then we went into the car. There was a bit of - I cannot recall the exact conversation. As it was presented to him, he signed it there and then. He was not overly impressed about it. Well, go home and have a think about it, mate. Take the thing home. Go have a read of it. I’m here until Friday. Bring it back on Friday. Go and have a read.”
The Commissioner: “Yes. Then he signed it on the spot?”
Mr Wright: “Signed it on the spot, okay, and then I asked him to - also I gave him the three bits of paperwork. So I asked him to sign that and the form there. (Indistinct)” 10
[21] The “three bits of paperwork” Mr Wright was referring to include the probation report. 11 The fourth section of the probation report has two boxes that can be selected, one being ‘Employment Confirmed’ and the other being ‘Employment Unsuccessful’. The ‘Employment Unsuccessful’ box is the one selected. However, it is clear that the Applicant did not sign the probation report and the Applicant was adamant in his evidence that he did not see the probation report. The evidence of Mr Wright was that he gave the Applicant a copy of the probation report but he concedes that the Applicant did not sign it.
[22] While it was the stated intention of Mr Davis that the Applicant have a break in employment on Monday 11 January 2016, it is clear that the Applicant was paid for that day. Mr Davis conceded this, however said that “we can argue that January 11th was paid in lieu because he actually wasn’t at work”. 12 Mr Davis appeared to be unaware of the fact that the Applicant was paid on 11 January 2016, and only established that after the Applicant raised this in his evidence that he was paid for every day during January, including 11 January 2016. 13 Mr Wright was unaware until the day of the hearing that the Applicant was paid for the Monday 11 January 2016.14
[23] The Applicant claimed that he worked from home on 11 January 2016. During the hearing an email sent from Mr Pope to Mr Wright with an attached weekly call planner was tendered into evidence through Mr Davis. The weekly call planner provided that the Applicant was on annual leave on the Monday 11 January 2016. 15 At first, the Applicant disputed that this email was sent from him and queried its authenticity. However ultimately the Applicant conceded he must have sent the email but claimed he could not remember doing so. Mr Wright confirmed that he had received the email. When asked by me if upon receiving the weekly call planner recording that the Applicant was on annual leave what action did he take in respect to that, Mr Wright replied “none, because it was pretty clear that he started on the Tuesday on a new contract”.16
[24] There was also an Employment Separation Certificate 17 in evidence. The certificate states that employment ceased on 8 January 2016. I do not doubt the authenticity of the certificate. However, the Applicant’s evidence is that he never received a copy of the certificate and neither of the Respondent’s witnesses were able to provide evidence that the certificate was actually sent.
[25] The Applicant became aware that his leave entitlements had been paid out on 12 January 2016. The Applicant gave evidence that his reaction to this was as follows:
“On 12th January I noticed a discrepancy in my Bank Account where monies had been deposited by Water Dynamics payroll. I then called payroll to inform them of this as payday was not until 14th of every month. I was then informed by Bernadette (Payroll) that Mr ‘Stephen Davis’ had told her to pay me out all accrued leave entitlements.
On 12th January after speaking to payroll I called Mr ‘Adam Wright’ to inform him of what had happened. The further discussion consisted of the following words spoken and recalled to the best of my ability.
I said: Hey Adam it’s Popie (David Pope), I have just got off the phone with Bernadette and I have been paid out.
He said: What are you talking about?
I said: I have been paid out, what the f---- has happened, all my leave, everything.
He said: I don’t know what you’re talking about, leave it with me and I’ll call you back.
Call back ‘Adam Wright’: He said: I have spoken to Bernadette (payroll) and she told me that ‘Steve’ (Steve Davis CEO) had made the decision, I can’t do anything about it.
I said: This is bull----.
He said: Sorry mate it’s out of my hands, you still have a job.” 18
[26] Mr Wright did not deal with that part of the Applicant’s evidence in his witness statement. When I asked Mr Wright about the Applicant’s evidence as to the alleged phone call on 12 January 2016, Mr Wright agreed that a conversation similar to that did take place but claimed that it was much later in the year, in April. Further, Mr Wright claimed that the Applicant was not asking why he had been paid out but rather why he had not been paid out after he commenced his second short term contract. 19
[27] Throughout his employment, the Applicant was provided as part of his terms and conditions, a fully maintained company car, a laptop computer and a mobile phone. Mr Wright’s evidence is that the Applicant kept his fully maintained company car, laptop and mobile phone throughout the entire January period, including the Monday, 11 January 2016. 20 Mr Wright gave evidence that he allowed the Applicant to keep the items as it was more convenient than to have the Applicant return them, particularly the car. 21
Consideration
[28] It is apparent that a cessation of non-casual employment and then re-employment with the same employer can break continuity of service. 22 I agree with the observations of Commissioner Spencer in Ireland v Hanson Construction Materials Pty Ltd23 where she found “There is an absence of a clear legislative provision, covering the re-engagement of an employee within 3 months by the same Employer, as the Act in its current form does not allow for these two periods of employment to be joined”.24 The Respondent contends that there was such a break in continuity, caused by the dismissal of the Applicant on 8 January 2016 and his subsequent re-employment on 12 January 2016.
[29] In this matter, the Applicant was consistent in his evidence that he was simply unaware that his employment was terminated on 8 January 2016. A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 25 If the Applicant, as a matter of fact, was not aware that his employment terminated on 8 January 2016 then there was no termination of the employment relationship and no break in the continuity of employment.
[30] There is conflicting evidence as to whether the Applicant was aware or not aware that his employment was terminated on 8 January 2016. There are a number of ways in which the Respondent contends that the Applicant should have been aware that he was terminated and I will deal with each in turn.
[31] Before doing so, it is necessary to make some observations on the demeanour of the witnesses. Overall, I found Mr Davis to be a most reliable witness and consistent in his testimony. I do not doubt the intent of Mr Davis to effect a termination of the employment of the Applicant and then to re-engage him with a break in his employment. While it was clear that Mr Davis wanted to employ the Applicant on a short term contract because of his performance concerns during the Applicant’s first 6 months of employment this could have been done without attempting to effect a break in continuity of employment. The motivation for Mr Davis in directing Mr Wright to provide for a break in employment was not at all clear to me.
[32] In any case, it is clear that it was Mr Wright who was to give effect to the intention of Mr Davis as reflected in the email he was sent by Mr Davis. 26 Whether or not there was a termination of the Applicant’s employment on the 8th of January largely turns on the evidence of Mr Wright and Mr Pope, the Applicant. While I found Mr Davis to be reliable and consistent, the same cannot be said of these two witnesses. There was a tendency on occasion for both to provide evidence that seemed at least implausible. Against this background I have considered the differing relevant factual evidence and made the necessary findings.
[33] The Applicant claims that he had never seen the Employment Separation Certificate until it was filed as part of the proceedings. Mr Davis and Mr Wright both gave evidence that they expected and believed that the Employment Separation Certificate was posted. However, neither could provide direct evidence that it was posted. The Applicant was adamant that he never received the Employment Separation Certificate. In the absence of direct evidence that the Employment Separation Certificate was posted to the Applicant, I accept the Applicant’s evidence that he did not receive it.
[34] Similarly, the Applicant states that he never saw the probation report at the 4 January 2016 meeting or at any time after that. Mr Wright gave rather unconvincing evidence that he provided a copy to the Applicant in a bundle of documents and then also said that he left it in the room with the Applicant. It is clear that while there is provision for the Applicant to sign the document, he has not signed it. If the Applicant had seen the probation report, he would have seen the box ticked that indicated his employment was unsuccessful. However, on balance I am not satisfied that the Applicant did see the probation report.
[35] I will now consider the email from Mr Pope to Mr Wright dated 12 January 2016 attaching the weekly call planner 27 which the Respondent put into evidence on the day of the hearing. It is evident that this email was sent from the Applicant to Mr Wright on 12 January 2016 and that it indicates that the Applicant assessed himself as being on annual leave on the day of Monday 11 January 2016. The Applicant initially claimed that he had never seen the document or did not remember it28 and then after some questioning conceded he did send the email and must have filled out the document but does not remember.29 . Moreover, the Applicant was adamant that he was working from home on Monday 11 January 2016 and that he did not have a day off. The Applicant’s claim that he cannot remember sending the email was not convincing. In any case, there is no evidence to suggest that he did not send it. His notation that the Monday was an annual leave day is inconsistent with the Applicant’s evidence that he was working from home that day. I do not accept the Applicant’s evidence that he was working from home. This claim is not consistent with any of the evidence in the matter. His claim that he was working from home reflects a propensity for the Applicant to give evidence that he thinks will best suit his case as opposed to evidence that is accurate. I am satisfied that the Applicant forwarded the email dated 12 January 2016 attaching the weekly call planner.30 This indicates that the Applicant considered himself to be on annual leave on the day of Monday 11 January 2016.
[36] There is then the paying out of the Applicant’s leave entitlements. Save for the differences in views of what occurred in the discussion on the 4 January 2016, the pay out of the entitlements provides an indication that, at the minimum and as conceded by the Applicant, that he, “…realised something had happened in respect to my employment”. 31 However, I am satisfied that the Applicant did not know about the pay out of his entitlements until 12 January 2016 as he asserts. I was convinced by the Applicant’s testimony as to the conversation that he had with Mr Wright on 12 January 2016 as he set out in paragraph 7 of his witness statement.32 I am unconvinced by Mr Wright’s claim that a conversation similar to that occurred but at a later time in April, where the Applicant questioned why he had not been paid out his entitlements. I consider this claim to be vague and further, do not accept that Mr Wright told that Applicant his entitlements would be paid out at the meeting on 4 January 2016.
[37] Overall, I am satisfied that the Applicant was not aware that his entitlements were paid out until 12 January 2016. The fact that there is a pay out of the Applicant’s entitlements is not sufficient, without more to satisfy me, that the Applicant knew that his employment was terminated. In any case, the Applicant was not aware of the fact until 12 January 2016; the day the Respondent contends he commenced his new period of employment. In those circumstances, it cannot be said that there is a break in continuity of service.
[38] There is then the conversation that occurred between the Applicant and Mr Wright during the meeting on 4 January 2016. Mr Wright gave evidence that he told the Applicant in clear terms that his employment was terminating on 8 January 2016 and he would recommence employment on 12 January 2016. However, Mr Wright was inconsistent in his evidence on this point, partly because I expect that he was attempting to insert into his evidence clarity as to the Applicant’s termination of employment in the 4 January conversation that was simply not there. Mr Wright was clear in his depiction of the 4 January conversation with the Applicant during in his evidence at the hearing. 33 Considering that testimony, Mr Wright tells the Applicant he is offering him a contract extension or a new contract. He discussed improving his performance standards and that there was no pay rise. There is only the claimed statement of “please understand you finish up, there is a day of separation between the two”.34 I have indicated earlier I accept the Applicant was not aware of the pay out of his entitlements until 12 January 2016. Mr Wright claims he said to the Applicant “you can have Monday off, do not come to work mate”.35 This is consistent with the Applicant submitting that he was on annual leave on 11 January 2016. Considering the conversation in its entirety I accept the Applicant’s claim that he was simply unaware his employment was being terminated, as this was not communicated to the Applicant.
[39] Considering the evidence overall, it is evident that there was no written communication to the Applicant terminating his employment on 8 January 2016. The communication, if it exists, was oral. A termination of employment can be communicated orally. 36 However, the termination does not take effect unless or until it is communicated to the employee who is being dismissed.37 In the circumstances of this case, I am satisfied that Mr Davis, sought to effect a termination of the Applicant’s employment and have him re-employed and allowing for a break in the Applicant’s continuity of service. However, I am unable to find that Mr Wright gave effect to that intention.
[40] Rather, the evidence supports a finding that the Applicant was told by Mr Wright that while there were problems with his performance, he was getting a contract extension and was told to “take the day off” on the Monday. Consistent with that, the Applicant filed a weekly call planner 38 stating he was on annual leave that day. Indeed the Applicant was paid for each and every day during the relevant period including the Monday, 11 January 2016. While it is evident that it was not the intent of the company that the Applicant be paid for that day, he was paid. The fact he was paid is more consistent with the finding that the Applicant thought he was having a paid day off rather than the attempt of Mr Davies to characterise it as a payment in lieu of notice after he became aware there was a payment made for that day. The fact that the Applicant kept his company car, laptop and mobile phone throughout the period, is consistent with a finding that the Applicant was not aware that his employment was terminated on the 8th of January 2016. I do not accept the evidence of Mr Wright that he told the Applicant in clear terms that he was being dismissed and re-employed.
[41] For these reasons I am satisfied that the Applicant was unaware that the Respondent was attempting to terminate his employment and recommence the contract at a later time. Rather, the Applicant knew he had not performed well during the probation period and that as a result the Respondent offered him a further short term 3 month contract extension. While the Applicant understood this was a change from being a permanent employee, the Applicant accepted the terms of the contract, its terms, other than the fixed term component, being identical to the terms and conditions he was already engaged on. He was told to have a day off on the 11th of January and he complied with that. The Applicant then continued his employment without any break of continuity. Not surprisingly the Applicant was unaware the Respondent was seeking to terminate his employment and re-employ him. While the change in the contract of employment is evident, it does not appear that there was any cessation of the employment relationship. Accordingly, there was no termination.
[42] As there was no termination of employment, there was no break in the Applicant’s continuity of employment. Accordingly he was employed for a continuous period of more than 6 months at the time of his dismissal on 16 May 2016 and has therefore been employed for more than the minimum employment period. Therefore, I am satisfied that the Applicant has served the minimum employment period as required by the Act and is a person protected from unfair dismissal.
[43] The jurisdictional objection is therefore dismissed. The matter will be listed for further programming.
[44] An order will be issued concurrently with this decision.
COMMISSIONER
Appearances:
D Pope on his own behalf for the Applicant
S Davis on behalf of the Respondent
Hearing details:
2016.
Shepparton:
28 July.
Final written submissions:
1 July 2016.
1 Exhibit R1, Witness Statement of Steven Davis, SD1
2 PN208 - PN213
3 PN227
4 PN1042 - PN1045
5 Exhibit R3, Witness Statement of Adam Wright, [18]
6 Exhibit R1, Witness Statement of Steven Davis, SD5
7 Exhibit R3, Witness Statement of Adam Wright
8 Exhibit R3, Witness Statement of Adam Wright, [25]
9 Exhibit A2, Witness Statement of David Pope, [6]
10 PN645 - PN672
11 Exhibit R3, Witness Statement of Adam Wright, AW5
12 PN305
13 PN305
14 PN577 – PN578
15 Exhibit R2, Email from Mr D. Pope to Mr A. Wright dated 12 January 2016
16 PN891
17 Exhibit R3, Witness Statement of Adam Wright, AW8
18 Exhibit A2, Witness Statement of David Pope, [7]
19 PN736 - PN762
20 PN579 – PN580
21 PN568
22 Pearson v K&S Freighters (unreported, Cribb C, 9 January 2003) PR926447, Voican v Monadelphous Engineering Pty Ltd [2013] FWC 9329, Nash v Serco[2014] FWC 7634
23 Ireland v Hanson Construction Materials Pty Ltd[2013] FWC 5292
24 [2013] FWC 5292 [37]
25 Burns v Aboriginal Legal Service of Western Australia (Inc) (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496 [24]
26 Exhibit R1, Witness Statement of Steven Davis, SD5
27 Exhibit R2, Email from Mr D. Pope to Mr A. Wright dated 12 January 2016
28 PN280
29 PN996 - PN1019
30 Exhibit R2, Email from Mr D. Pope to Mr A. Wright dated 12 January 2016
31 Exhibit A2, Witness Statement of David Pope, [8]
32 Exhibit A2, Witness Statement of David Pope, [7]
33 PN645 - PN672
34 PN670
35 PN670
36 Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) [8]; citing Barolo v Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.
37 Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496 [24].
38 Exhibit R2, Email from Mr D. Pope to Mr A. Wright dated 12 January 2016
Printed by authority of the Commonwealth Government Printer
<Price code C, PR585198>
2
3
0