Elisaia Laga'aia v M L a Property Group Pty Ltd

[2020] FWC 2354

[2020] FWC 2354

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Elisaia Laga’aia
v
M L A Property Group Pty Ltd
(U2020/3856)

COMMISSIONER BISSETT MELBOURNE, 6 MAY 2020

Application for an unfair dismissal remedy.

[1] MrElisaia Laga’aia has made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (FW Act) for relief from unfair dismissal. Mr Laga’aia was employed by M L A Property Group Pty Ltd (MLA). His application was made on 30 March 2020.

[2] On his Form F2 application for unfair dismissal Mr Laga’aia said that he commenced employment with MLA on 2 March 2020 and that his employment was terminated on 13 March 2020.

[3] On 31 March 2020 the Commission attempted to contact Mr Laga’aia on his nominated phone number. He did not answer the call but a detailed voicemail message was left for him advising that he did not appear to have completed the minimum employment period required by the FW Act. He was also advised that he would receive a letter in relation to his application and that he should respond to that letter.

[4] The Commission also emailed a letter to Mr Laga’aia that day. That letter advised that based on the information provided in his Form F2, he did not appear to have completed the minimum employment period and asked that he provide any information that showed he had worked the minimum employment period. If nothing was received from him within 14 days Mr Laga’aia was advised that his application for unfair dismissal may be dismissed.

[5] On 31 March 2020 the Commission received email correspondence from Mr Laga’aia in which he said:

Dear FWC,

You have rejected my FWC Form 2 unfair dismissal application for incorrect reasons.

You seem to have assumed that my short period of employment renders me ineligible to make an unfair dismissal clam to the FWC.

You seem to be ignoring the legal effect of the Small Business Fair Dismissal Code.

You will see that my Form 2 claim expressly mentions that I was summarily dismissed for “serious misconduct”.

Summary dismissal for alleged serious misconduct constitutes an exception to the FW Act when it comes to the period of employment, which becomes irrelevant due to the operation of the Small Business Fair Dismissal Code.

Please reinstate my unfair dismissal claim forthwith before the expiry of the mandatory 21 days for submission.

Please let me know the result immediately

Kind Regards,

Elisaia Laga’aia

[6] Following receipt of this correspondence my chambers emailed Mr Laga’aia providing details of the minimum employment provisions of the FW Act and seeking any further submissions on the matter he would seek to make.

[7] Mr Laga’aia provided further submissions as requested on 30 April 2020.

[8] I do not accept Mr Laga’aia’s submissions and his application will be dismissed as he has failed to complete the minimum employment period required to enable a person to be protected from unfair dismissal.

[9] Mr Laga’aia’s submission is, in effect, that he worked for a small business, that business is covered by the Small Business Fair Dismissal Code (Code), he was summarily dismissed, such a dismissal is subject to the Code and not the FW Act, and that Code is the complete statement of matters relevant to dismissal of employees in small businesses. The Code does not specify that a person must have completed 12 months minimum employment period to be eligible to make an application for unfair dismissal and therefore he does qualify to make the application.

[10] Mr Laga’aia submitted that:

A close examination of the case law reveals that the issue of employment period is often not in question. When it is, however, there appears to be a simplistic assumption that Sections 382 and 383 of the FW Act should be called upon to aid juridical analysis. But how this approach is justified never seems to be addressed. My submission is that these cases are wrongly decided, and the Code was intended by Parliament to stand alone as a bulwark against harsh and unconscionable conduct by small business employers, insufficiently addressed in the FW Act itself. No small business employer ought be able to dismiss an employee for alleged serious misconduct where that is not justified, and the Code provides justice and fairness to a hapless employee in such a circumstance, where the FW Act consummately fails to do so.

[11] Mr Laga’aia did not expand as to why he considered cases in relation to the minimum employment period wrongly decided or the basis on which he considered Parliament intended the Code to stand as a “bulwark against harsh or unconscionable conduct” by small business employers and further why such protections would not be given to employees so treated by large employers.

[12] Mr Laga’aia also submitted that “if the Code were intended to be limited by reference to the period of employment, then the Fair Work Commission’s Unfair Dismissal Benchbook would say so, this being such a significant legal bar in the context of serious misconduct.”

[13] This said, Mr Laga’aia’s error is that he confuses the Code which relates to the process of dismissal with the FW Act which provides a dismissed employee with the right to make an application that the dismissal was unfair. The Code is a procedural document which can be taken into account in relation to how a dismissal was given effect. It does not, however, provide a legislative basis to make an application to challenge either the validity or procedural fairness of the dismissal to the Commission. That is provided by the FW Act.

[14] The Explanatory Memorandum to the Fair Work Bill 2008 makes this point clear. It states:

There will also be a Small Business Fair Dismissal Code (the Code) for businesses with fewer than 15 employees (small business employers). The Code will set out the steps a small business employer needs to take in order for the dismissal to be fair. If an employee of a small business employer makes an unfair dismissal claim, FWA will first determine if the employer has complied with the Code. If so the dismissal will be considered fair. If the employer has not complied with the Code, the claim will treated in the same way as any other unfair dismissal claim, and FWA will go on to determine whether the dismissal was harsh, unjust or unreasonable.

[underlining added]

[15] Importantly the Explanatory Memorandum also states that:

There will also be special assistance for small business employers through the Small Business Fair Dismissal Code and a 12 month qualifying period for small business employees. Therefore, small businesses will have 12 months in which to assess the performance of an employee and terminate their employment if necessary. This will be adequate time for a small business to assess the performance of an employee.

[underlining added]

The provisions of the FW Act

[16] The FW Act is clear. Section 382 provides that a person is protected from unfair dismissal if, at the relevant time, the person has completed the minimum employment period. The minimum employment period is set out in s.383 and is one year for person employed by a small business. A person not protected from unfair dismissal has no recourse to the unfair dismissal remedy provisions of the FW Act.

[17] Section 396 of the FW Act sets out those things that the Commission must decide prior to considering the merits of an application for an order that the dismissal was unfair. One of those matters that the Commission must decide is if the Applicant is protected from unfair dismissal. 1

[18] If a person is not protected from unfair dismissal then an application from that person cannot be considered by the Commission.

Consideration

[19] Mr Laga’aia has made his application to the Commission. The FW Act sets out the power of the Commission to deal with such applications. The minimum employment period places constraints on those applications for unfair dismissal the Commission can deal with. A proper reading of the Code indicates that it is relevant only to the determination of whether a dismissal is fair. It does not interfere with other provisions of the FW Act or have any effect as to whether the Commission has jurisdiction to deal with an application for unfair dismissal.

[20] I would observe that, if Mr Laga’aia was correct and the Code is the complete codification for the consideration of unfair dismissal in relation to small businesses (even if it is only in relation to summary dismissal – although this distinction makes no sense), the Code provides no right to have the dismissal reviewed and for no remedy for a dismissal that might be considered to be unfair. If the Code is the complete codification in relation to dismissal of employees from small businesses, there can be no recourse to the Commission as the Code provides no such process. Mr Laga’aia cannot ignore those parts of the FW Act that act as a bar to his application and rely on the Code but then seek to rely on other parts of the FW Act to enable his application to be heard.

[21] Mr Laga’aia’s complaint about the Unfair Dismissal Benchbook is also misplaced. Mr Laga’aia reads the Benchbook from his perspective as to the operation of the Code. That the minimum employment period is not mentioned in the Code does not mean it does not apply to employees of small businesses. As the FW Act makes clear there is a minimum employment period for all employees in accessing the unfair dismissal provisions of the FW Act.

[22] Section 587 of the FW Act sets out the Commission’s power to dismiss an application:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[23] I am satisfied that as Mr Laga’aia has not completed the required minimum employment period under the FW Act, his application is not within the jurisdiction of the Commission and therefore has no reasonable prospects of success. I therefore order that his application be dismissed under s.587(1)(c) of the FW Act. An order 2 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR719130>

 1 Section 396(b) of the FW Act.

 2   PR719131.