Drew Wilson v Programmed/Integrated Workforce Qld
[2014] FWC 4136
•30 JUNE 2014
[2014] FWC 4136 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Drew Wilson
v
Programmed/Integrated Workforce Qld
(U2014/4818)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 30 JUNE 2014 |
Summary: unfair dismissal application - whether minimum period of employment served.
[1] This matter concerns an application made by Mr Drew Wilson under s.394 of the Fair Work Act 2009 (“the Act”). Mr Wilson seeks an unfair dismissal remedy in relation to the cessation of his employment by Integrated Workforce Queensland (“Integrated”).
[2] Integrated, however, contends that the Applicant has not completed the minimum period of employment for the purposes of s.382 of the Act and is therefore not a person who can make an application for an unfair dismissal remedy.
[3] Before such time as an application under s.394 of the Act can be determined, the Commission must be satisfied that the applicant was protected from unfair dismissal.
[4] Section 382 specifies when a person is protected from unfair dismissal. Section 382(a) provides relevantly:
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 [...]
[5] Section 383 specifies the “minimum employment period”:
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.
(underline emphasis added)
[6] Mr Wilson’s materials submitted in relation to whether or not he had met the requirements of s.382 of the Act admit to a period of employment which saw him perform duties with Coca-Cola Amatil, in Richlands, Queensland, between October 2008 and January 2014.
[7] The Applicant appears to have performed his duties with Coca-Cola Amatil variously through employment with Challenge Recruitment and Integrated Recruitment.
[8] The Applicant stated that Challenge Recruitment lost a contract to provide labour to Coca-Cola Amatil to Integrated Recruitment in late 2013.
[9] Mr Wilson contends that I should have regard to the entirety of the period over which he performed duties for Coca-Cola Amatil - that is a period of five years. Further, Mr Wilson asked that the Commission disregard recruitment contract changes from time to time as they had no impact on him for reason that his role remained unchanged.
[10] The evidence from Integrated, however, was that the Applicant was first employed with it for the period of 6 September 2010 through to 6 February 2011. Integrated provided a letter of separation (which it states was requested by Mr Wilson). This letter of separation was dated and signed 9 March 2011 attesting to the duration of Mr Wilson’s employment.
[11] Integrated further contends that Mr Wilson commenced a new assignment with it at Coca-Cola Amatil on 2 September 2013, as a general hand. That is, a period of some two years since the prior period of employment.
[12] Integrated provided a copy of a signed casual employment agreement entered into between it and the Applicant which was dated and signed by both parties on 22 August 2013. The employment agreement indicated that Mr Wilson had been “recorded as being available to accept offers of casual employment”, and that being so “recorded as an available casual employee does not guarantee work” or “any entitlement to ongoing employment”.
[13] The Applicant received an “assignment” as described in the casual employment agreement on 2 September 2013. That assignment (which was to Coca Cola Amatil) ceased on 31 January 2014.
[14] The evidence in this matter points to the Applicant having been employed by Integrated from 2 September 2013. His employment agreement states that the date of employment is referrable to the assignment date. Further, the materials provided by the Respondent indicate that the Applicant’s previous periods of employment cannot be taken to constitute continuous service; the Applicant ceased his employment and at a much later time was re-employed.
Reckoning period of employment
[15] Section 2G of the Acts Interpretation Act 1901 provides as follows:
2G Months
(1) In any Act, month means a period:
(a) starting at the start of any day of one of the calendar months; and
(b) ending:
(i) immediately before the start of the corresponding day of the next calendar month; or
(ii) if there is no such day--at the end of the next calendar month.
Example 1: A month starting on 15 December in a year ends immediately before 15 January in the next year.
Example 2: A month starting on 31 August in a year ends at the end of September in that year (because September is the calendar month coming after August and does not have 31 days).
(2) In any Act, a reference to a period of 2 or more months is a reference to a period:
(a) starting at the start of a day of one of the calendar months (the starting month ); and
(b) ending:
(i) immediately before the start of the corresponding day of the calendar month that is that number of calendar months after the starting month; or
(ii) if there is no such day--at the end of the calendar month that is that number of calendar months after the starting month.
Example 1: A reference to 6 months starting on 15 December in a year is a reference to a period starting on that day and ending immediately before 15 June in the next year.
Example 2: A reference to 6 months starting on 31 October in a year is a reference to a period starting on that day and ending at the end of April in the next year (because April is the calendar month coming sixth after October and does not have 31 days).
[16] The Applicant’s period of employment was the duration of the assignment offered to him on 2 September 2013. Pursuant to s.2G of the Acts Interpretation Act 1901, where a period of employment commences on 2 September 2013, six months thereafter is 2 March 2014.
Conclusion
[17] The Applicant has not completed the minimum employment period as required under s.382 of the Act in order to be a person who is protected from unfair dismissal. His application under s.394 of the Act seeking an unfair dismissal remedy must therefore be dismissed.
[18] I note that there are other jurisdictional issues raised in relation to the application. One of these was that the Applicant resigned at his own initiative in so far as he declined any further assignments (according at least to Integrated). Because of my finding above in relation to s.382 of the Act, I have not had cause to determine this further objection.
SENIOR DEPUTY PRESIDENT
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