Geoffrey Brethouwer v CSF Financial Services Pty Ltd T/A My Life My Advice

[2019] FWC 7696

[2019] FWC 7696

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Geoffrey Brethouwer
v
CSF Financial Services Pty Ltd T/A My Life My Advice
(U2019/9065)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 8 NOVEMBER 2019

Application for an unfair dismissal remedy — minimum employment period — application dismissed.

[1] On 15 August 2019, Mr Geoffrey Brethouwer (Applicant) lodged with the Fair Work Commission (Commission) an unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act).

[2] The Respondent, CSF Financial Services Pty Ltd T/A My Life My Advice (Respondent) (CSF), objected to the application on the grounds that Mr Brethouwer had not served the minimum employment period required for protection from unfair dismissal pursuant to s.382(a) of the Act. CSF submit Mr Brethouwer’s total period of employment is five months and five days, which is less than the six-month employment period required by the Act.

[3] Section 382 sets out circumstances that must exist for Mr Brethouwer to be protected from unfair dismissal. The Commission can only order an unfair dismissal remedy if Mr Brethouwer is a person “protected from unfair dismissal”. Mr Brethouwer is required to have completed a period of employment that is at least the minimum period of employment (s.382(a)). The term minimum employment period is defined in s.383 of the Act. CSF is not a small business therefore, pursuant to s.383, the minimum employment period in this case is six months.

[4] At the hearing before me on 8 November 2019, CSF sought permission pursuant to s.596 of the Act to be represented by Mr Jonathan Nguyen, a qualified lawyer, on the basis that it would enable the matter to be dealt with more efficiently. Mr Brethouwer did not object to CSF being legally represented. I was satisfied that CSF should be granted permission to be legally represented pursuant to s.596(2)(a) of the Act.

The cases presented

[5] It is not in contention that Mr Brethouwer commenced his employment with CSF on 29 January 2019 and his employment came to an end on 1 August 2019. It is also not in contention that Mr Brethouwer took an approved period of leave without pay from 3 July 2019 to 30 July 2019 (inclusive) and that the total leave period was 20 days.

[6] CSF submit that pursuant to s.22(b) of the Act, the 20 days of leave without pay taken by Mr Brethouwer is a period that does not count towards Mr Brethouwer’s minimum period of service as it is excluded from the calculation of continuous service. CSF submit Mr Brethouwer’s total period of continuous service is five months and 5 days, which is less than the six months of continuous service required under the Act. 1

[7] Mr Brethouwer gave evidence that he worked as a full time Financial Planner and his workdays were from Monday to Friday. Mr Brethouwer’s evidence was that his leave to travel overseas was approved prior to accepting the role with CFS. At the time of making his request, Mr Brethouwer submits he did not ask for his leave to be unpaid and that this arrangement was later agreed upon. For those reasons, Mr Brethouwer submits that his unpaid leave of 20 days should count towards his period of service as an employee with CSF. 2

[8] Mr Paul Steward, Employer Services Manager, gave evidence consistent with Mr Brethouwer’s evidence that CFS was notified of Mr Brethouwer’s pre-planned leave arrangements prior to the commencement of his employment and that subsequent to his engagement, he elected to take the foreshadowed leave as leave without pay. 3

[9] Mr Brethouwer also gave evidence that his employment contract contained a six- month probationary period, and as the unpaid leave was approved leave it should be counted in calculating his period of continuous service with CFS.

Consideration

[10] A probationary period within an employee’s contract, and the minimum employment period Mr Brethouwer is required to have met to be a person protected from unfair dismissal, are not one and the same. Regardless, there is no evidence before me that suggests Mr Brethouwer’s contract proposes that any period of unpaid leave should be counted towards a period of continuous service with his employer.

[11] An employee’s period of employment is defined in s.384(1) of the Act as being a period of continuous service the employee has completed with the employer at the time as an employee.

[12] The minimum period of employment is assessed on the basis of “continuous service”, which is defined in s.22 of the Act. Section 22(2)(b) provides that a period of unpaid leave does not count as service. It is irrelevant as to when Mr Brethouwer applied to take the leave, as the relevant consideration is the time during which the leave was taken.

[13] While the Act does not contemplate when an employee has notified of their intention to take leave, the Act specifically deals with when the period of leave has been taken. In the current matter, when the intention to take a period of leave was notified by Mr Brethouwer and agreed upon by CSF is irrelevant to the determination of whether or not Mr Brethouwer had completed a the minimum period of employment required to be a person protected from unfair dismissal.

Conclusion

[14] Whilst the period of unpaid leave that Mr Brethouwer took does not break his continuous service with CSF, the period of leave does not count towards the length of his continuous service with CSF (s.22(2)(b)). Therefore, Mr Brethouwer’s total period of employment was less than six months. I find that Mr Brethouwer has not served the minimum employment period and is therefore not a person protected from unfair dismissal.

[15] Accordingly, the application is dismissed. An order to that effect will be published with this decision.

COMMISSIONER

Appearances:

Mr G. Brethouwer for himself;

Mr J. Nguyen for the Respondent.

Hearing details:

2019.

Melbourne:

November 8.

Printed by authority of the Commonwealth Government Printer

<PR714121>

 1   Exhibit R2.

 2   Exhibit A1.

 3   Exhibit R1.