DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Erena Hita
v
Big Bell Gold Operations Pty Ltd T/A Central Murchison Gold Project
(U2017/10713)

DEPUTY PRESIDENT BULL

PERTH, 18 DECEMBER 2017

Application for an unfair dismissal remedy, minimum employment period not met, application dismissed.

[1] On 5 October 2017, Ms Erena Hita (the applicant) made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). Her initial application did not provide any details of the respondent employer, and following correspondence from the Fair Work Commission (Commission), an amended Form F2 was filed identifying the employer as Big Bell Gold Operations Pty Ltd T/A Central Murchison Gold Project (the respondent).

[2] In her amended application, the applicant stated that she commenced employment with the respondent on 8 May 2017, and that she was notified of her dismissal and her dismissal took effect on 27 September 2017. On the basis of this information, the applicant was employed for a period of approximately four months and three weeks.

[3] On 5 October 2017 the Commission sent correspondence to the applicant advising that on the basis of the information contained in the application, it appeared that she had not served the minimum employment period of six months, as per s.383 of the FW Act. The correspondence directed the applicant to advise the Commission within 14 days whether or not she wished to proceed with her application, and failure to do so may result in her application being dismissed. The email correspondence from the Commission, sent to the email address provided on the application form, was returned with an undeliverable message, following which an alternative email address was sourced and used.

[4] A further telephone call was made to the applicant seeking confirmation that she had received the Commission’s correspondence. The applicant confirmed receipt of the correspondence.

[5] On 6 October 2017 the applicant provided additional material in support of her application. The documents provided consisted of:

• a payment advice slip from an entity named CoreStaff Pty Ltd 1. The payment advice indicated the applicant was paid by Corestaff Pty Ltd for casual work undertaken for its client Big Bell Gold Pty Ltd, from 27 February to 5 March 2017.

• a Travel Confirmation report confirming the applicant’s itinerary for nine flights between Meekatharra and Perth for the time period commencing 31 January 2017 and concluding 18 April 2017, and providing confirmation of accommodation at the Yaloginda Camp.

[6] No further material was provided by the applicant to the Commission.

[7] On 24 October 2017 the Commission attempted to contact the applicant via phone and left a voice mail requesting she contact the Commission about her application.

[8] A further voice mail was left for the applicant on 25 October 2017, alerting the applicant that the further documentation she had provided named a different employer to that named on her application. The applicant was requested to contact the Commission as soon as possible to provide clarification.

[9] No response was received from the applicant and on 3 November 2017 the Commission further contacted the applicant via phone seeking clarification. Upon speaking to the applicant, she was advised that the payment advice slip provided by her on the 6 October 2017 identified her employer as Core Staff Pty Ltd, not the entity named in her application. The applicant replied that she believed her employment had transferred from Core Staff Pty Ltd to the respondent. She advised that she had further documentation to submit which she believed would show that she met the minimum employment period. She advised she would lodge this further documentation as soon as possible.

[10] No further documentation was received from the applicant by the Commission.

[11] On 1 December the Commission contacted the applicant via phone to advise that no further documentation had been received from her and the Commission would therefore progress the matter based on the material before it. The applicant advised that she would send further material in support of her application and wanted to proceed.

[12] The Commission sent further correspondence to the applicant on 13 December 2017, confirming that no further material had been received by the applicant. The applicant was put on notice that, on the material before the Commission, the applicant did not appear to meet the minimum employment period and her application may be dismissed without further notice.

[13] To date, the applicant has not provided any further material to the Commission.

[14] Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.

[15] Section 383 of the Act sets out 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.

[16] The applicant has submitted that she was employed by the Respondent for a period of approximately four months and three weeks. She has provided evidence to the Commission of her employment with another entity, labour hire company Core Staff Pty Ltd, prior to being employed by the respondent. The payment advice slip provided indicates that while employed by Core Staff Pty Ltd, the applicant worked at the respondent’s site, with the respondent named as the client of Core Staff Pty Ltd.

[17] In the applicant’s telephone call with the Commission on 3 November 2017, the applicant advised that she believed her employment had transferred from Core Staff Pty Ltd to the respondent, and as such she satisfied the minimum employment period.

[18] Service with two or more employers may count as continuous service for the purposes of the minimum employment period in circumstances when the employers are associated entities 2 or when there has been a transfer of business between non-associated entities and the employee is a transferring employee.3

[19] There is no evidence before the Commission to demonstrate that the respondent and Core Staff Pty Ltd are associated entities, nor that there has been a transfer of business per s.311 of the FW Act.

[20] In the circumstances of this matter and on the material before the Commission, I am satisfied the applicant has not completed the required minimum employment period and consequently is not a person protected from unfair dismissal.

[21] Section 587(1) of the Act provides:

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.

[22] Consequently, the application is dismissed under s.587(1) of the Act.

DEPUTY PRESIDENT

1 The Core Staff website advertises the company as providing labour hire and recruiting services:

2 Section 12 of the FW Act defines associated entity as having the meaning given by s.50AAA of the Corporations Act 2001

3 Fair Work Bill 2008 Explanatory Memorandum at Item 1521

Printed by authority of the Commonwealth Government Printer

Erena Hita v Big Bell Gold Operations Pty Ltd T/A Central Murchison Gold Project

[2017] FWC 6707

18 DECEMBER 2017

DECISION