Emma Wells v ABC Blinds & Awnings

[2016] FWC 8260

[2016] FWC 8260

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Emma Wells
v
ABC Blinds & Awnings
(U2016/10244)

COMMISSIONER WILSON MELBOURNE, 21 NOVEMBER 2016

Application for relief from unfair dismissal.

Application for Unfair Dismissal Remedy. Jurisdictional objection; whether completed the Minimum Employment Period for reason of absence on unpaid leave or unpaid authorised leave.

[1] Ms Emma Wells was employed by Riverslea Holdings Pty Ltd, trading as ABC Blinds and Awnings (the Respondent) in Wangara, Western Australia, in suburban Perth, during a period that commenced on 4 February 2016 and which finished on 4 August 2016.

[2] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters to be considered before considering the merits of the application and one of those matters is the question of whether Ms Wells was a person protected from unfair dismissal at the time of her dismissal, for reason of the assertion by ABC Blinds and Awnings that she has not completed the minimum employment period.

[3] The other matters within the section, of whether her application to the Fair Work Commission was made within time limits permitted by the Act; of whether the dismissal was consistent with the Small Business Fair Dismissal Code; or whether it was not a genuine redundancy, do not arise for consideration.

[4] For the reasons set out below, I have found that Ms Wells has not served the minimum employment period and so she is not a person protected from unfair dismissal, meaning that her application must be dismissed.

BACKGROUND

[5] Ms Wells was first employed by ABC Blinds and Awnings on 4 February 2016 as a casual employee. ABC Blinds and Awnings submit that when she was employed her status was as a casual employee since she was backfilling another employee who was on extended sick leave. The evidence provided in the matter indicates that notwithstanding that Ms Wells was a casual employee, she worked regular hours on each day Monday to Friday and some Saturdays and, with the exception of two days within the period of her casual employment. Not long after she was employed Ms Wells notified her employer she would be attending a music festival and that she would not be available to work on either Friday 19 or Monday, 22 February 2016. She subsequently did not work on those days.

[6] ABC Blinds and Awnings notes about the initial casual employment arrangement that Ms Wells had been engaged to replace another employee who had become ill whilst overseas. As a result, at the commencement of the contract of employment both parties were uncertain about when the other employee would return to work. The job advertisement to which Ms Wells responded referred to it being offered for a period of “approx 3 months with the possibility of full-time employment”. ABC Blinds and Awnings further submit that the other employee returned to work on 15 April 2016 in the role Ms Wells had been engaged.

[7] Further, the Respondent submits that Ms Wells was offered full-time employment during April but for a different reason, explained by ABC Blinds and Awnings as being the resignation of another employee on 4 April 2016. That resignation lead to Ms Wells being offered a permanent full-time contract commencing from 11 May 2015.

[8] Through both periods of employment, Ms Wells points to having worked each of the weekdays Monday to Friday. Ms Wells’ evidence is also that she worked occasional Saturdays with the days that she did work being agreed between her and a small number of other employees on an informal basis, with the product of their discussion being written on a whiteboard. Ms Wells’ evidence on the subject is that she worked five Saturdays throughout her employment.

[9] Ms Wells was dismissed from employment early on the morning of 4 August 2016 shortly after arriving at work. The reason set out within the termination letter provided to Ms Wells, which is dated 3 August 2016, but which was not given to her until the morning of 4 August is that “as you are still within your probation period we have decided not to continue your employment here at ABC Blinds & Awnings”.

[10] The notice of termination of employment of Ms Wells, being given on 4 August 2016, is precisely 6 months after the first date on which she was employed by ABC Blinds and Awnings.

[11] The Employer Response Form provided by ABC Blinds and Awnings indicates the company employed 115 employees at the time that Ms Wells was dismissed. Accordingly the applicable minimum employment period is six months.

[12] The argument is made by ABC Blinds and Awnings that Ms Wells has not completed a period of six months continuous service in its employment. In this regard, ABC Blinds and Awnings argue;

● that the period of casual service should be disregarded in calculating Ms Wells period of continuous service; and

● that even if the period of casual service is to be counted, her total period of continuous service is less than six months for reason of the two day’s absence in February referred to above.

[13] This decision considers each of the jurisdictional contentions.

RELEVANT LEGISLATION

[14] Sections 382, 383 and 384 of the Act relevantly provide as follows:

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.

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; …”

CONSIDERATION

[15] In this case, Ms Wells had two broad periods of employment, namely the period of casual employment which lasted between February and May 2016 and secondly the period of “full-time” employment which began on 11 May 2016.

[16] In Ms Wells’ case there does not appear to be any dispute that, for the time she was a casual employee, she worked a set number of hours each week day, with the exception of the two days that she had off and working some additional Saturdays as overtime.

[17] In considering the questions in dispute, I take into account the principle that it is the employment that must be a regular and systematic basis, not the hours worked. A clear pattern or roster of hours is a strong evidence of regular and systematic employment. Engagement on a systematic basis does not require an employee to foresee or predict when their services may be required. It is sufficient that the pattern of engagement occurs as a consequence of an ongoing reliance upon the employee’s services. 1

[18] It is also been said by the Full Bench that s.384 is concerned with how an employee’s period of employment is calculated, with the section drawing a distinction between a period of service and a period of employment. An employee may have a series of continuous periods of service with an employer that may count towards a single period of employment with that employer. That continuous service will be broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. 2

[19] While the Respondent argues that there could have been no reasonable expectation of continued employment on Ms Wells’ part because she was employed as a casual to cover another who was on extended sick leave, the evidence leads to the finding that Ms Wells’ employment as a casual employee was both on a regular and systematic basis and that she had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

[20] As a result, there is little doubt that consideration of Ms Wells’ period of employment as a whole, both as a casual employee and a full-time employee, is a period of continuous service for the purposes of s.384.

[21] While that is so, the Respondent’s submissions in respect of the need to omit Ms Wells’ unpaid absences on 19 and 22 February 2016 from the consideration of the minimum employment period require consideration and ultimately lead to the disposition of the argument in the Respondent’s favour.

[22] Section 22 of the Act provides a greater definition of the meaning of “service” and “continuous service” with subsections (1), (2) and (3) of that section providing 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 under Part 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) – (8) omitted]

[23] The Respondent’s evidence, uncontested by Ms Wells, is that she did not work on Friday 19 or Monday 22 Febraury 2016 because she took those days as unpaid leave to attend a music festival. As a result of that evidence and the provisions of s.22, I am obliged to not count as “service” the two days Ms Wells had as unpaid leave or unpaid authorised absence, namely Friday 19 and Monday, 22 February 2016. While those two days do not break Ms Wells’s continuous service with ABC Blinds and Awnings, they do not count towards the length of her continuous service.

[24] In Ms Wells’ case for her to be a person protected from unfair dismissal she must have completed the minimum employment period, prescribed in s.382 of the FW Act as being “six months ending … when the person is was given notice of the dismissal”.

[25] Consideration of the provisions of s.2G and s.36(1) of the Acts Interpretation 1901 (Cth) leads to the finding that, for the purposes of s.382 of the FW Act, the period of six months referred to in that section is calculated from the first day of employment, being 4 February and ending immediately before the start of the corresponding day of the sixth succeeding calendar month, adjusted as need be for reason of the matters within s.22 of the Act. In Ms Wells’ case, the period of six months is required to be extended by two days for reason of the two days that Ms Wells had as unpaid leave or unpaid authorised absence. Accordingly the six months required for the minimum employment period would end on 6 August 2016.

[26] For the reason that Ms Wells was dismissed on 4 August 2016 she has not served the minimum employment period. Accordingly, her application for unfair dismissal must be dismissed.

[27] An order dismissing Ms Wells’ application for unfair dismissal is issued at the same time as this decision.

COMMISSIONER

Appearances:

Ms E Wells on her behalf

Mr M Brice for the respondent

Hearing details:

2016.

Melbourne (by telephone):

October 27.

 1   Kamanda v House with No Steps[2016] FWC 767, [7], with reference to Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6, (2005) 149 IR 339, [69].

 2   Shortland v Smiths Snackfood Co Ltd [2010] FWAFB 5709, (2010) 198 IR 237, [12] – [13].

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