Georgios Papias v LAMA Furniture Manufacturers Pty Ltd
[2023] FWC 1192
•19 MAY 2023
| [2023] FWC 1192 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Georgios Papias
v
LAMA Furniture Manufacturers Pty Ltd
(U2023/2030)
| COMMISSIONER YILMAZ | MELBOURNE, 19 MAY 2023 |
Application for an unfair dismissal remedy – break in employment – New contract of employment – No written contract – Minimum Employment period
Mr Georgios Papias (the Applicant) has applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in relation to his termination of employment by LAMA Furniture Manufacturers Pty Ltd (LAMA). He claims to have been unfairly dismissed on 20 February 2023.
LAMA oppose the application and submit that the Commission has no jurisdiction to hear the substantive application as Mr Papias had not met the minimum employment period of twelve months. LAMA submit that Mr Papias was employed on 22 March 2022, but had been previously employed from 27 July 2021 until 15 October 2021 (first period of employment).
Mr Papias submits that his employment is continuous from 18 July 2021[1] disputing that his employment was terminated on 15 October 2021. He submits that he completed a period of 17.5 months of employment as a full-time upholsterer and furniture maker and therefore completed the minimum employment period.
LAMA submits that Mr Papias’ employment was terminated on 15 October 2021 when he advised his employer that he had no intention of being vaccinated against COVID-19, collected his tools and left the workplace without any notice. LAMA submit that Mr Papias was re-employed on 22 March 2022 under a new contract of employment after Mr Papias’ brother (also an employee) informed LAMA that Mr Papias had been vaccinated and is available to return to work should there be a job for him. LAMA submits that it employed Mr Papias due to a shortage of skilled labour but informed him that his prior poor attendance record in 2021 would not be tolerated.
Both parties were self-represented. Mr Papias tendered in evidence a witness statement and gave oral evidence. Mr Bill Nedas, Director and Manager tendered in evidence a witness statement, payslips and a record of unauthorised absence during the second period of employment. Mr Nedas gave oral evidence for LAMA.
The matter to be determined is whether the Commission has jurisdiction relating to the whether Mr Papias had met the minimum employment period.
Applicant’s submissions
Mr Papias submits that he commenced employment with LAMA on 18 July 2021 as a full-time upholsterer and furniture maker and was dismissed on 20 February 2023 without prior counselling or warning.[2] However, during the hearing he could not confirm date of commencement and provided no evidence to dispute LAMA’s payroll evidence of commencement on 27 July 2021.
Mr Papias says that on Thursday 15 February 2023 the temperature in the factory was nearing 46 degree Celsius. He further says that he was feeling unwell during the day, he did not have water, had a sore knee and informed the office at 3pm that he could not continue working and left.[3]
It is submitted that the owner (Bill) contacted him by telephone after he left asking where he was going as the working day was to finish in an hour. He submits that he was questioned about whether he would work the following day in the heat and on responding that he would not if it was too hot, the owner advised not to come in.[4]
Mr Papias says that he attended work on Monday 20 February and while working at his bench was approached and told “you are finished, you were actually sacked on Thursday, I am letting you go today.” He further states that he was not warned prior to his dismissal.[5]
In relation to the period 15 October 2021 to 22 March 2022, Mr Papias submits that there was no break in employment, but rather a period of absence because he was not vaccinated and could not work for his employer. He further submits that while his employer submits that the period was unauthorised, he states that the period did not break continuity of employment.
Mr Papias submits that his brother who was vaccinated and continued to work for LAMA informed him that “Bill asked when he would get his vaccine so that he could return to work.” [6]
Mr Papias also submits he is aggrieved because he believes he was not paid his accrued entitlements in 2021 and questions whether he was paid correctly during 2022-2023.[7]
Respondent’s submissions
LAMA object to the application on the ground that Mr Papias had not met the minimum employment period of twelve months. It states that it employed fewer than 15 employees.
LAMA submit that as a small business it did not provide written contracts of employment, but Mr Papias had signed the relevant paperwork relating to superannuation, tax file number, bank account details and next of kin for payroll purposes. It tendered in evidence payslips for what it described as two separate periods of employment.[8]
It disputes the allegation that the factory was too hot to work and there was no water. It submits that Mr Papias had left the workplace without authority during work hours on Thursday 16 February 2023. Mr Nedas gave evidence that he phoned Mr Papias after learning from the Receptionist that he had left and was told it was too hot to work so he left to get an ice-cream and go home. Mr Nedas states that Mr Papias failed to attend work on Friday 17 February 2023. On Monday 20 February 2023, Mr Papias arrived for work 15 minutes late and was asked about his leaving early and arriving late to work. Mr Nedas gave evidence that he said to Mr Papias that “it was not going to work” “enough is enough” because of his continued unreliability and he says that Mr Papias offered if he should leave “do you want me to finish?”, to which he replied yes. He further gave evidence that Mr Papias packed up his tools and left the workplace.[9] Mr Nedas did not contest the evidence that the final payslip had the word “terminated” written on it by hand but does contest that he said that Mr Papias was terminated since Thursday 16 February 2023.[10]
Mr Nedas gave evidence in relation to the payroll records which he says show a poor attendance record of 1347.5 hours instead of the 1748 rostered hours of work. Mr Nedas submits that Mr Papias worked 35.44 weeks once the unauthorised absence was accounted for. He also gave evidence that the first period of employment of less than 13 weeks came to an end when Mr Papias was informed that the business could not risk fines therefore proof of vaccination was required. He says that Mr Papias made it clear that he would not obtain the vaccination for COVID-19 and would rather not work. He further disputes that the absence was unauthorised, instead stating that there was a termination of employment on 15 October 2021 when Mr Papias left.[11]
In regard to the first period of employment in 2021, Mr Nedas submits that the employment clearly came to an end at the initiative of Mr Papias as he indicated he would rather not work than obtain the vaccination. Further that he packed up his tools indicated that he would not be returning. [12] He states that the decision to leave was a resignation and notice was deducted from any pay owing to Mr Papias at the time.[13] In relation to the payroll records, he submits that MYOB (the company payroll system) records any employment for an employee during a financial year. Therefore, the records in financial year 2021-2022 show two periods of employment as there was a break of more than five months.[14]
Mr Nedas further disputes that he asked for him to return via Mr Papias’ brother. Instead, he gave evidence that Mr Papias’ brother approached him inquiring whether he would re-employ Mr Papias as he had been vaccinated after his wife pressured him to be vaccinated and find paid work. Mr Nedas gave evidence that because of labour shortages he agreed to take Mr Papias back, on the condition that attendance would not be a problem.
Mr Nedas gave evidence that employment commenced on 22 March 2022 and terminated on 20 February 2023 after the early departure from work on Thursday and absence on Friday. He disputes that there was any authority or mutual understanding regarding the absence on Friday 17 February 2023. Rather Mr Nedas gave evidence that Mr Papias was cavalier in regard to his attendance, often taking time off work without authority and this was the basis of verbal counselling and warning prior to the dismissal.
Mr Nedas disputes that the pay calculations were incorrect.
The legislation
The Commission can order a remedy for unfair dismissal if it is satisfied that an applicant was protected from unfair dismissal and is unfairly dismissed.[15] Sections 382 and 383 of the Act provides that a person is protected from unfair dismissal if they have completed a minimum employment period of 12 months if a small business employer, or six months if not a small business employer. A small business employer is defined as a business with 15 or fewer employees. LAMA submit they are a small business employer, therefore the minimum employment period in this matter is twelve months. The relevant provisions of the Act are sections 382 and 383. The Act provides for excluded periods and periods that may affect the period of continuity.
The relevant sections of the Act are:
“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.”
The minimum employment period required to have been served to comply with s.382(a) is twelve months. LAMA submit that Mr Papias was covered by a modern award,[16] and tendered evidence of number of employees extracted from payroll records showing 14 employees employed at the time of Mr Papias’ dismissal.
Section 383 provides:
“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.”
The twelve months is calendar months. LAMA contend that Mr Papias had completed 46 weeks of employment including periods of unauthorised leave.
Further, LAMA contend that taking into account the unauthorised absence Mr Papias completed 35.44 weeks of continuous service. The provision provides:
“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.”
Continuous service has a meaning as effected in s.22. Section 22 provides:
“22 Meanings of service and continuous service
General meaning
(1)A period of serviceby 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.”
Taking into consideration s.22 of the Act, LAMA gave evidence of 73.5 hours of paid sick leave during employment from 22 March 2022 to 20 February 2023. This period of paid leave does not affect the period of employment, however, a total of 270.25 hours were unpaid and, in most cases, unauthorised which is not included for the purposes of s.22 (1)(a) and (b). I observe that even without considering the unpaid leave, Mr Papias had completed a continuous period of less than 12 calendar months. Of the 46 weeks and 3 days of work, Mr Papias was on unpaid leave for 7 weeks and 4.25 hours, leaving just over 39 weeks of continuous employment.
Consideration
Was there one or two separate periods of employment?
Mr Papias contends that his employment commenced in July 2021 and was continuous until his dismissal on 20 February 2023, a period of 17.5 months.[17] LAMA contend that Mr Papias commenced employment on 22 March 2022 and his employment terminated on 20 February 2023. This period of some 46 weeks included paid sick leave and unpaid/unauthorised leave leaving a period of just over 39 weeks of continuous service which is less than the minimum employment period of 12 months. LAMA also contend the earlier period of employment of less than 13 weeks in 2021 came to an end when Mr Papias left his employ after refusing to comply with the mandated vaccination requirements. I note that a period of more than 5 months lapsed before Mr Papias was reemployed in March 2022.
I am satisfied that there is no evidence of any agreement to keep the job open for five months between the two periods of employment. I accept the evidence of Mr Nedas that the employment came to an end on 15 October 2021, therefore the period of less than 13 weeks of employment is a separate and unrelated contractual arrangement. I accept on the oral evidence of Mr Nedas that after Mr Papias’ brother approached him to consider rehiring Mr Papias as he had met the vaccination obligations, that the reengagement on 22 March 2022 was a new and separate contract of employment, albeit a verbal one.
I am satisfied that the oral evidence of Mr Nedas was corroborated by the payslips. The payslips do show that LAMA was a small business and that while Mr Papias was employed full-time, he was regularly absent from work, rarely completing a full week of work. Mr Papias worked for LAMA for a continuous period of just over 39 weeks, less than the 12 months minimum employment period required by s.383 and for the purpose of protection from unfair dismissal under s.382 of the Act.
Conclusion
For the above reasons, I am satisfied that LAMA had employed Mr Papias from 22 March 2022 until 20 February 2023. The 46 weeks was reduced to just over 39 weeks of continuous employment taking into account the unpaid/unauthorised absence over the period of employment. The continuous period of just over 39 weeks falls short of the 12 months of minimum employment period required under s.383 of the Act. Consequently, the application cannot proceed pursuant to s.382 of the Act, and Mr Papias’ application is dismissed.
Under s.587 (1) of the Fair Work Act 2009, the Commission may on its own motion dismiss an application that is not made in accordance with the Act. Section 587 (1)(a) is enlivened as the application made under s.390 of the Act has not met the requirements of s.382 (a) of the Act.
Accordingly, the application for an unfair dismissal remedy is dismissed. Orders will be issued to give effect to this decision.
An order to that effect will be issued with this decision.[18]
COMMISSIONER
Appearances:
Mr G. Papias on his own behalf.
Mr B. Nedas for the Respondent.
Hearing details:
12 May 2023
Microsoft Teams
[1] The Form F2 noted 7 July 2021 and during the hearing Mr Papias could not confirm the date of commencement.
[2] Applicant’s Form F2.
[3] Applicant’s witness statement and oral evidence.
[4] Applicant’s witness oral evidence.
[5] Applicant’s witness statement and oral evidence.
[6] Applicant’s witness oral evidence.
[7] Applicant’s witness oral evidence.
[8] Respondent’s Submissions: Payslips from First Period of Employment 27.7.21-15.10.21 and Payslips from Second Period of Employment 22.3.22-16.2.23
[9] Form F3 and Respondent’s witness oral evidence.
[10] Respondent’s witness statement and oral evidence.
[11] Respondent’s oral evidence.
[12] Respondent’s witness statement and oral evidence.
[13] Respondent’s witness oral evidence.
[14] Ibid.
[15] s.390 Fair Work Act 1990.
[16] Form F3, Question 1.1.
[17] Applicant’s outline of submissions, Question 2d.
[18] PR762064
Printed by authority of the Commonwealth Government Printer
<PR762063>
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