Ian O'Driscoll v Underground Services Australia T/A Cape
[2019] FWC 7830
•18 NOVEMBER 2019
| [2019] FWC 7830 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ian O’Driscoll
v
Underground Services Australia T/A CAPE
(U2019/9974)
DEPUTY PRESIDENT BEAUMONT | PERTH, 18 NOVEMBER 2019 |
Application for an unfair dismissal remedy - minimum employment period - minimum period not met.
[1] Mr O’Driscoll lodged an application for an unfair dismissal remedy having been dismissed by Underground Services Australia T/A CAPE (Cape). Cape objected to the application on the basis that Mr O’Driscoll had not satisfied the minimum employment period of six months, having commenced work on 17 June 2019 and having been dismissed effective 22 August 2019.
[2] Mr O’Driscoll contended that he started working for Cape in or around June 2017, had a period of unpaid leave from 26 January 2018 for a non-work related injury, and then resumed work on 17 June 2019. On that basis, he argued he had satisfied the minimum employment period.
[3] This decision deals with the jurisdictional objection that the minimum employment period had not been completed and therefore Mr O’Driscoll was not protected from unfair dismissal. However, in short, I have concluded Mr O’Driscoll has not completed the minimum period of employment with Cape, and is therefore not a person protected from unfair dismissal pursuant to ss 382(a) and 396(b) of the Fair Work Act 2009 (Cth) (the Act). Mr O’Driscoll’s unfair dismissal application must consequently be dismissed and an order 1 to that effect will be issued with this decision. My reasons follow.
Background
[4] Cape employed Mr O’Driscoll as an operator pursuant to a written contract with a start date of 17 June 2017 and an end date of 15 October 2017. 2 The end date for the contract was extended to 13 April 2018.3
[5] Mr Ry Fonseka, the previous Human Resources Manager for Cape, gave evidence that on or around 24 January 2018, he was notified that Mr O’Driscoll had sustained a non-work related injury. 4 Some email correspondence ensued including an email dated ‘Fri, Jan 26, 2018’ which stated:
hi Ry, sorry for the late reply, I’m going to have to be off work indefinitely until I can get my back fixed. It’s probably looking like surgery at the moment as it hasn’t really healed. Sitting and walking are a struggle so im not good for much. I sent a doctors note in when I first did it and asked for my sick leave to be paid out, and also pay from working on the 4th and 5th of December as I couldn’t get a time sheet in for those 2 days. I don’t think that has been done. Hopefully I can apply with cape again once I am fixed up and cleared to work again.
Thanks, Ian. 5
[6] Mr Fonseka replied to Mr O’Driscoll’s email stating, amongst other matters, that Mr O’Driscoll was on a fixed term contract for the ‘Ponds project,’ but if resigning he would push payroll to pay out all entitlements and Mr O’Driscoll could have anything owing to him. By email dated 26 January 2018, Mr O’Driscoll confirmed to Mr Fonseka ‘that would be good thanks Ry’. 6 Mr Fonseka sent an email later that day requesting the resignation to enable payroll to progress the separation payments.7 By email dated 26 January 2018, Mr Fonseka replied ‘I, Ian O’Driscoll wish to resign from my job with Cape due to an injury obtained outside of work.’
[7] On 28 March 2019, Mr O’Driscoll contacted a representative of Cape via email. 8 The email set out Mr O’Driscoll’s previous work history with Cape and his availability – ‘I am currently looking for work and wanted to ask if there is any FIFO positions available at the moment. I have HR, Loader & Bobcat tickets, and am willing to do any job you might have available and can start immediately.’9
[8] Cape subsequently offered Mr O’Driscoll employment as an operator on the Koodaideri project commencing on 5 June 2019. Mr O’Driscoll accepted the offer, signing the employment contract on 14 June 2019. Mr O’Driscoll was notified of his dismissal on 22 August 2019 and it took effect on that same day.
What are the relevant legislative provisions and how do we interpret them?
[9] A person is protected from unfair dismissal if they have completed the minimum employment period. 10 The meaning of ‘minimum employment period’ for the purpose of this application is six months.11
[10] Section 383 of the Act sets out the meaning of the minimum employment period as follows:
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.
[11] Section 384 of the Act is concerned with how an employee’s period of employment is calculated for the purpose of determining if the employee has satisfied the minimum employment period. The relevant part reads:
(1) [Meaning of period of employment]
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. (emphasis added)
[12] The starting point is that a period of employment is also referred to as a period of continuous service.
[13] Section 22 defines the terms ‘service’ and ‘continuous service’, the relevant subsections follow:
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) [Exceptions to meaning of service]
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) [Excluded period does not break continuous service]
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…
[14] A period of continuous service can be made up of a series of periods of service. 12 An employee may have a series of contiguous periods of service with an employer that may count towards a single period of employment (period of continuous service) with that employer.13
Consideration
[15] Mr O’Driscoll was in part plagued by a paucity of persuasive evidence when it came to advancing his case. Notwithstanding guidance provided in a mention and in subsequent correspondence from Chambers prior to the hearing, it appeared that he failed to appreciate the hearing was the opportunity to adduce evidence to support his case.
[16] Directions were issued on 11 October 2019 for the filing of materials. Mr O’Driscoll failed to comply with those directions and had not filed his materials by 18 October 2019. On 28 October 2019, Chambers wrote to Mr O’Driscoll observing his non-compliance with the directions and similarly addressed Cape, who were due to file materials on 25 October 2019.
[17] On 28 October 2019, Mr O’Driscoll wrote to Chambers advising ‘i wish to request an extension to file submissions until november 4, as i have been occupied with family matter [sic] that are now resolved, my apologies.’ Later in the day on 28 October 2019, Chambers informed Mr O’Driscoll that the extension had not been granted because the reason he had provided was insufficient and lacked supporting evidence. An extension was granted in which to provide further reasons and supporting evidence for the extension request.
[18] On 31 October 2019, Chambers wrote to Mr O’Driscoll observing that Chambers had not received any further evidence or reasons substantiating the extension request. No further correspondence was received from Mr O’Driscoll. Therefore, on 4 November 2019, Chambers wrote to the parties informing them that the hearing would proceed based on materials filed to date. Parties were informed that submissions could be made at hearing. Further, notwithstanding that Mr O’Driscoll had not filed a witness statement, he was permitted to give viva voce evidence.
[19] While Mr O’Driscoll contended that his period of absence with a non-work related injury did not break his continuous service with Cape – a finding as such, is simply not open on the evidence. I am not persuaded that Mr O’Driscoll embarked on either a period of unpaid leave or unpaid authorised absence. His own correspondence to Cape, after sustaining his back injury, and thereafter where he sought further employment opportunities with the company, manifests that there was no employment relationship for the period of, on or around 26 January 2018, until he commenced employment again on 5 June 2019.
[20] While Mr O’Driscoll may agitate that in January 2018, he was compelled or otherwise forced to resign to obtain a payment of entitlements, that purported scenario is not played out on the evidence before me. The email correspondence between both Mr O’Driscoll and Mr Fonseka does not follow Mr O’Driscoll’s script, and Mr Fonseka’s evidence is unsupportive of such libretto.
[21] I have found that Mr O’Driscoll commenced employment with Cape on 5 June 2019 in accordance with his employment contract dated 14 June 2019. It was uncontroversial that Mr O’Driscoll’s dismissal took effect on 22 August 2019. It is therefore the case that Mr O’Driscoll has not completed the minimum period of employment with Cape.
DEPUTY PRESIDENT
Appearances:
Applicant on his own behalf
Mr Scott of Cape for the Respondent
Hearing details:
12 November
2019
By Phone
Printed by authority of the Commonwealth Government Printer
<PR714336>
1 [PR714373].
2 Exhibit R2 Annexure 1.
3 Exhibit R2 Annexure 2.
4 Exhibit R1 [1].
5 Exhibit R1.
6 Exhibit R1.
7 Exhibit R1.
8 Exhibit R2.
9 Exhibit R2.
10 Fair Work Act 2009 (Cth) s 382(a).
11 Ibid s383(a).
12 Wayne Shortland v The Smiths Snackfood Co Ltd [2010] FWAFB 5709.
13 Ibid.
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