Edward Williamson v The War Veterans' Home Myrtle Bank Incorporated T/A RSL Care SA
[2016] FWC 7988
•4 NOVEMBER 2016
| [2016] FWC 7988 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Edward Williamson
v
The War Veterans’ Home Myrtle Bank Incorporated T/A RSL Care SA
(U2016/7272)
DEPUTY PRESIDENT BARTEL | ADELAIDE, 4 NOVEMBER 2016 |
Termination of Employment - whether applicant served minimum employment period
Introduction
[1] Mr Edward Williamson (the applicant) was dismissed by RSL Care SA T/A War Veterans Home (the employer or respondent) on 11 May 2016. He has filed an application seeking an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).
[2] The respondent has raised a jurisdictional objection, claiming that the applicant’s employment did not meet the minimum employment period.
[3] The issue between the parties is a narrow but important one. The relevant facts of the employment are as follows:
● The applicant was employed to perform part time work as a Personal Care Assistant under the Aged Care Award 2010;
● The employer is not a small business and the requisite minimum employment period is 6 months;
● The applicant’s employment was confirmed in a letter dated 10 November 2015 from the respondent’s Chief Operating Officer, Mr David Walshaw. The letter advised that “Start Date is 12th November 2015”.
● The applicant signed an “Employment Agreement” on 11 November 2015, which again identified the commencement date of the position as 12th November 2015.
● The applicant was dismissed on the afternoon of 11 May 2016. He received one weeks’ pay in lieu of notice of termination. 1
[4] The applicant argues that his period of employment commenced on the date that the Employment Agreement was signed, that being the date when the contract of employment came into existence between himself and the employer. The period of employment should therefore be measured as the period between 11 November 2015 and 11 May 2016.
[5] The applicant characterised the date of 12 November 2015 as a “suggested” commencement date, but I am not persuaded that this is correct. This may have been the tenor of discussions prior to 10 November 2015, but by the time the offer of employment was committed to writing and the applicant signed the Employment Agreement, the start date of 12 November 2015 was fixed.
[6] The employer addressed the minimum employment period provisions under ss.382 and 383 of the Act. Ms Donna Mooney, the respondent’s HR Manager, provided an affidavit addressing the start and end dates of the applicant’s employment, and appended a number of documents pertaining to the applicant’s employment.
[7] The employer submitted that the applicant’s period of employment was 12 November 2015 to 11 May 2016, and that this period does not meet the 6 month minimum employment period.
Consideration
[8] To access the unfair dismissal jurisdiction of the Fair Work Commission (the Commission) a person must be “protected from unfair dismissal” in accordance with s.382 of the Act:
“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.”
[9] There is no dispute that the applicant meets one or more of the requirements in s.382(b) of the Act. The “minimum employment period” referred to in s.382(a) of the Act is defined by reference to ss.383 and 384 of the Act:
“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.
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) …”
[10] The issue raised by the applicant’s submission, namely, whether there is a distinction between the employment relationship and the contract of employment, is a matter upon which views have previously differed. 2 More recently, in the matter of De Silva-McKay v EQ Life Pty Ltd, Senior Deputy President Watson held that dismissal, for the purposes of calculating the minimum employment period under s.383 of the Act, was termination of the employment relationship, not the contract of employment.3
[11] Of necessity and by implication, the same reasoning must apply to the commencement of employment, that is, it is the commencement of the employment relationship not the time at which the contract of employment commenced. This approach is reinforced by the reference to “continuous service” as the measurement of the “period of employment” and the definition of continuous service in s.22 of the Act. 4
[12] The employment relationship commenced on 12 November 2015 and ceased on the afternoon of 11 May 2016.
[13] Section 2G of the Acts Interpretation Act 1901 defines “month”. The use of this definition for the purposes of calculating the minimum employment period under s.383 of the Act was affirmed in Prigge v Manheim Fowles Pty Ltd. 5 Section 2G provides:
“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 …”
[14] Adopting this definition, a period of 6 months commencing on 12 November 2015 ends immediately before 12 May 2016, that being midnight on 11 May 2016. The applicant was dismissed on the afternoon of 11 May 2016. Accordingly he had not served the minimum employment period of 6 months at the point of dismissal.
[15] The applicant is not a person protected from unfair dismissal and the Commission has no jurisdiction to hear his unfair dismissal application. An order dismissing the application is issued with this decision.
DEPUTY PRESIDENT
Written submissions:
Respondent’s Outline of Submissions – Jurisdictional Objection, dated 9 September 2016.
Reply by Applicant, dated 19 September 2016.
Respondent’s Reply – Jurisdictional Objection, dated 23 September 2016.
1 Employment Separation Certificate attached to the Form F2 Application.
2 See for example Wilkinson v Skippers Aviation Pty Ltd PR903635, 30 April 2001, McIntyre VP, Cartwright SDP, Harrison C.
3 [2013] FWC 7482 at [72], citing J Searle v Moly Mines Limited [2008] AIRCFB 1088.
4 There is no issue that the whole of the applicant’s employment was continuous service.
5 [2010] FWA 28, 7 January 2010, Richards SDP.
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