Gareth Davies v ACE Operations Pty Ltd

[2015] FWC 6798

[2015] FWC 6798 [Note: Appeals pursuant to s.604 (C2015/7082, C2015/7084) were lodged against this decision - refer to Full Bench decision dated 21 December 2015 [[2015] FWCFB 8300] for result of appeals.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gareth Davies
v
ACE Operations Pty Ltd
(U2015/10128)

Kimberley Davies
v
ACE Operations Pty Ltd
(U2015/10130)

COMMISSIONER BISSETT MELBOURNE, 7 OCTOBER 2015

Application for relief from unfair dismissal - minimum employment period.

[1] Mr Gareth Davies and Mrs Kimberley Davies have each made an application to the Commissioner seeking relief from unfair dismissal. They were employed by ACE Operations Pty Limited (ACE) to work on a property operated by ACE. Mr Davies’ employment was terminated on 29 July 2015. Mrs Davies employment was terminated at around this time. Mrs Davies says that on 30 July 2015 she was aware her employment had been terminated.

[2] ACE raises a jurisdictional objection to the applications. It says that neither Mr Davies nor Mrs Davies was employed for the minimum employment period required under the Fair Work Act 2009 (the Act) to be eligible to make an application for unfair dismissal and the applications should therefore be dismissed.

[3] The Act provides that a person is protected from unfair dismissal if, amongst other things, the person has completed a period of employment with the employer of at least the minimum employment period. In this case (the employer has more than 15 employees) the minimum employment period is six months.

[4] The circumstances of Mr and Mrs Davies are different and each will be separately considered.

[5] At the conclusion of the hearing I requested ACE to produce a broader range of daily reports from the farm in question and payslips for Mr and Mrs Davies. I indicated that if I intended to rely on this material I would provide the parties with an opportunity to be heard on it. This material has not been relied on by me in reaching my decision.

Mr Davies

[6] Mr Davies says that he commenced work with ACE as a Farm Manager on 23 January 2015. Mr Davies produced an unsigned contract dated 19 January 2015 that has a commencement date of 23 January 2015. This contract provided for a payment of $50,000 per annum, inclusive of superannuation.

[7] Mr Davies says that he was initially offered a position in Cobram with a commencement date of 23 January 2015. Accommodation was not available at Cobram so a position at Maffra was offered.

[8] On 20 January 2015 Mr Davies flew from New Zealand where he lived ahead of his wife and children. He says he arrived in Melbourne where he stayed for three days. In this period he arranged to inspect the farm at Maffra to determine if it was suitable for him and his family.

[9] Mr Davies travelled to Sale on 25 January 2015 where he was met by Mr Hopkinson (known as Hoppy). He was placed in temporary accommodation at Happy Days Motor Inn where he stayed for about 5 days. He was also given the use of a company car.

[10] On 29 January 2015 Mr Davies travelled to Melbourne. He met his wife and children who had arrived from New Zealand on 30 January 2015. They then travelled to Cobram to collect some furniture and returned to Maffra.

[11] Mr Davies says that on 31 January 2015 he attended for work, milked some cows, met some staff and then, with some help, unloaded furniture.

[12] ACE produced a contract (again unsigned) which indicated a start date for Mr davies of 2 February 2015 with an annual salary of $60,000 inclusive of superannuation.

[13] ACE also produced a number of emails sent by Mr Davies to various representatives of ACE where he indicated that his start date was 1 February 2015. These are included in the evidence of Mr Bayard and are marked Annexure C and D.

[14] ACE produced, as part of its material filed with the Commission, a number of ‘daily reports’ for the Maffra farm which, Mr Bayard says, indicate the number of cows milked, where they are paddocked and other activities for the day and indicate who was rostered on and off on the farm, who was working that day and the tasks they did (e.g. milking). 1 This form is completed daily by the manager or most senior person rostered on. The daily sheets do not indicate Mr Davies as having been at work until 3 February 2015.

[15] Mr Davies agrees that his employment was terminated on 29 July 2015.

[16] Mr Davies submits that, as he was provided with the use of a company car and his accommodation at Happy Days was paid for by ACE he, at least, was employed by ACE from 25 January 2015. This means that at the time his employment was terminated he had been employed for a period greater than six months.

Consideration

[17] There is no evidence that Mr Davies did any work for ACE prior to 31 January 2015. That he had arrived in Australia and his accommodation was being paid for by ACE does not mean he had commenced working for it.

[18] Nothing can be taken from the contracts of employment. Neither was signed by Mr Davies and neither was signed by a representative of ACE. I would observe however that the failure to have the contracts signed by Mr Davies or by ACE is a sign of poor management practices. Had the contracts been signed or had there been any clear written communication of the date of commencement of employment much time could have been saved at least with respect to this matter.

[19] Mr Davies does not suggest he commenced working for ACE prior to 31 January 2015, just that his accommodation was being met and he had the use of a car and he does not understand how this could occur if he was not working for them at that stage.

[20] In reaching my conclusion I have not had regard to the daily reports as provided as part of Mr Bayard’s statement. They add nothing to my consideration and I am not convinced, in any event, of their accuracy.

[21] If I accept Mr Davies evidence the first day he worked for ACE was 31 January 2015 when he attended work for milking. That he was in accommodation provided by ACE and that he had use of a car prior to 31 January 2015 does not mean his employment had commenced prior to 31 January 2015.

[22] I am satisfied that Mr Davies commenced working for ACE on 31 January 2015. His employment was terminated on 29 July 2015. Mr Davies therefore did not complete six months employment with ACE.

Mrs Davies

[23] Mrs Davies agrees that she commenced employment with ACE on 1 February 2015. The issue in dispute with respect to Mrs Davies and, therefore, if she completed the minimum employment period is when her employment ended.

[24] There is nothing put by ACE to suggest that Mrs Davies did not commence working for it on 2 February 2015.

[25] Mrs Davies did not receive a signed contract from ACE, nor has she received a letter of termination or any correspondence advising her that her employment has been terminated and the date of termination.

[26] Mr Davies name does not appear on any daily reports although it is not disputed that she worked for ACE.

[27] Mrs Davies says that on 29 July 2015 Mr Davies rang her and advised her his employment had been terminated . During this week Mrs Davies had some time off to attend to organising child care and attending to medical appointments for her daughter. She says she was due back at work on 1 August 2015.

[28] On 30 July 2015 Mr Davies received an email form Mr Bayard of ACE that said:

Gareth

Under the terms of your employment agreement we are required to give you two weeks notice paid in lieu.

However, in lieu of any additional time worked we will pay a total of 4 weeks.

Under the housing agreement we are not required to give you any notice, however we are willing to allow you to remain in the house for 4 weeks.

Regards

[29] Mr Davies responded to Mr Bayard the same day and said:

Hi Jeremy

Just to clarify this is for both Kimberely (sic) and myself as we were hired as a couple and told by Mark this was the case…

[30] Mr Bayard responded ‘correct’.

[31] Mrs Davies says that she took from this email that her employment had also been terminated. She did not attend work on 1 August 2015 as rostered because she understood her employment had been terminated.

[32] Mrs Davies produced her final payslip which she says shows she was paid from 18 July 2015 to 31 July 2015. 2

Consideration

[33] I have considered the payslip produced by Mrs Davies. I take the date range from the payslip to be no more than the fortnightly pay period covered by the payment and not indicative of a date of termination of employment. This conclusion is reinforced by a consideration of Mr Davies payslip. 3 Mr Davies agrees that his employment was terminated on 29 July 2015 but his final payslip also shows that it, too, is for the period 18 to 31 July 2015. The date range on the payslip is not indicative of the date of termination of employment. If it was Mr Davies payslip would have a date range of 18 to 29 July 2015.

[34] I am satisfied that Mrs Davies was aware that her employment had been terminated on 30 July 2015.

[35] On Mrs Davies own evidence she commenced employment on 1 February 2015. Her employment was terminated on 30 July 2015. Mrs Davies did not complete six months employment with ACE.

Conclusion

[36] In making their applications both Mr and Mrs Davies sought compensation for time they say they worked but were not properly remunerated. These are not matters that are properly dealt with in this decision. I would note however that my decision in this matter does not preclude Mr and Mrs Davies taking those matters to the Fair Work Ombudsman if they believe they were not correctly paid.

[37] For the reasons above I find Mr Davies did not complete the minimum employment period of six months with ACE. Mr Davies is therefore not eligible to make an application for unfair dismissal. His application is dismissed. An order to this effect will be issued with this decision.

[38] For the reasons above I find Mrs Davies did not complete the minimum employment period of six months with ACE. Mr Davies is therefore not eligible to make an application for unfair dismissal. His application is dismissed. An order to this effect will be issued with this decision.

COMMISSIONER

Appearances:

G. Davies for himself.

K. Davies for herself.

S. Schreier-Joffe of Sasphire Legal with J. Bayard for the Respondent.

Hearing details:

2015.

Sale Magistrates Court:

September 25.

 1   Annexures E and F to evidence of Mr Bayard.

 2   Exhibit K1.

 3   Exhibit G2.

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