Debaki Thani Bartaula v G8 Education Early Learning Centre

[2015] FWC 2535

[2015] FWC 2535

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Debaki Thani Bartaula
v
G8 Education Early Learning Centre
(U2015/138)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 13 APRIL 2015

Application for relief from unfair dismissal.

[1] Ms Debaki Thani Bartaula alleged the termination of her employment by G8 Education Early Learning Centre (G8) was unfair. In her application, she advised that she commenced employment on 29 July 2013 1 and her employment ended on 19 December 2014.

[2] G8 objected to Ms Bartaula’s application on the grounds that she had not served the minimum employment period.

[3] An employee is required to have served six months (one year if employed by a small business) employment to be protected from unfair dismissal. Section 383 of the Fair Work Act 2009 (the Act) provides 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.

[4] Section 384 defines period of employment 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.

[5] Ms Bartaula agreed that she commenced employment at the Huggy Bear High Wycombe in 2013. Ms Bartaula’s employment ended when she left work on 25 March 2014 because she was pregnant. Ms Bartaula was not entitled to maternity leave because she had not been employed for 12 months.

[6] In October 2014, Ms Bartaula was then employed by G8 at Huggy Bear for some casual shifts and on 21 October 2014, she was employed by Shemlex at Buggles and her employment with G8 ended. G8 then took over Shemlex’s business at Buggles at the close of business on 31 October 2014 and on 30 October 2014 Ms Bartaula was offered employment at Buggles by G8. The written offer of employment advised Ms Bartaula that her service with Shemlex would be counted for all purposes except for the purpose of calculating period of employment.

[7] The evidence established that G8 took over the business at Huggy Bear on 13 June 2014. At that time, Ms Bartaula was not a transferring employee because she was not an employee of Huggy Bear at the time of the transfer of business and she did not become an employee of G8 within three months of the termination of her employment by Huggy Bear. 2

[8] Therefore, the period of Ms Bartaula’s employment at Huggy Bear between 2013 and March 2014 did not count as service with G8.

[9] In any event, Ms Bartaula’s employment with G8 ended when she took up employment with Shemlex. Shemlex and G8 were not related entities and no transfer of employment occurred.

[10] Ms Bartaula’s short service with Shemlex, which commenced on 21 October 2014, also does not count because even though she was a transferring employee, as her employement with Shemlex was terminated and she accepted the offer of employment with G8, she was advised in writing in advance that her service would not be counted for the purpose of period of employment.

[11] In determining whether Ms Bartaula has served the minimum employment period, no assessment has been made about the merits of her case. The Fair Work Commission has no discretion to waive the requirements of the Act.

[12] On the evidence before the Commission, Ms Bartaula’s service with G8 commenced on 30 October 2014 and ended on 19 December 2014. Ms Bartaula has not served the minimum employment period and therefore she is not protected from unfair dismissal and her application is dismissed.

DEPUTY PRESIDENT

Appearances:

Ms D Bartaula on her own behalf.

Ms J Battersby for the Respondent.

Hearing details:

2015.

Melbourne, Brisbane and Perth via telephone:

10 April.

 1   In her original application, she advised she commenced on this date. In later documentation she advised that she commenced on 29 August 2013. This discrepancy does not need to be resolved.

 2 Fair Work Act 2009, section 311.

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