Iftekhar Ahmed

[2010] FWA 5121

[2010] FWA 5121

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Iftekhar Ahmed

(U2010/549)

John Coker

(U2010/551)

Van Lieu

(U2010/552)

Mario Pires

(U2010/554)

Richard Eyles

(U2010/555)

Saleem Ahmed

(U2010/556)

Christopher Delaney

(U2010/557)

v
Serco Australia Pty Ltd

VICE PRESIDENT WATSON SYDNEY, 12 JULY 2010

Termination of employment - whether minimum period of employment completed - whether employee advised in writing before employment started that a period of service with an old employer would not be recognised - Fair Work Act ss 382 - 384, 394.

[1] This decision, edited from the transcript in the matters, concerns applications filed by Mr I Ahmed, Mr J Coker, Mr V Lieu, Mr M Pires, Mr R Eyles, Mr S Ahmed and Mr C Delaney (the applicants) pursuant to s 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy concerning the termination of their employment by Serco Australia Pty Ltd (Serco).

[2] Serco objected to the applications prior to conciliation of the matters on the basis that the applicants had not completed the requisite minimum period of employment. The applications were listed for hearing to determine the jurisdictional issue. At the hearing of these matters on 11 June 2010, Mr B Miles represented the applicants and Mr M Cooper represented Serco.

[3] Serco contends that the applicants commenced employment with Serco on 28 October 2009. It contends that service with the previous detention centre operator G4S Australia Pty Ltd (G4S) should not be taken into account when considering whether the minimum qualifying period has been completed as there has been neither a transfer of service nor a transfer of business between G4S and Serco. The applicants contend that periods of service completed with G4S should count as service for the purpose of determining whether the minimum employment period has been completed. It is common ground that the employment of each of the applicants terminated in March 2010, less than five months after Serco contends the employment commenced.

[4] The question for determination in this matter is whether the applicants have served the requisite period of employment for the purposes of Division 2 of Part 3-2 of the Act and in particular ss 382 - 384 of the Act. It is common ground that unless the period of service with the previous employer, G4S, is included as service, the applicants do not have the requisite period of service for the purposes of their applications.

[5] Section 384 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.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”

[6] It is also accepted that service with G4S does not count as a period of service if all elements of s 384(2)(b) of the Act are present. Counsel for the applicants in these matters, Mr Miles, accepts that s 384(2)(b)(i) and (ii) are satisfied and if s 384(2)(b)(iii) is made out, then service with G4S will not be taken into account. The question to consider therefore is whether, in the terms of s 384(2)(b)(iii), Serco informed the applicant employees in writing before their employment with Serco started that a period of service with the old employer would not be recognised.

[7] The employer argues that the letter of employment provided to each employee, and in particular clause 1(c) of that letter, falls within that description. In my view this is essentially a question about the construction of the provisions of the Act by reference to the terms of the letter of employment, together with the other documentation including the relevant enterprise agreement which was provided to employees in conjunction with the letter of employment.

[8] A difficulty arises in this matter because the wording relied on by the employer in paragraph 1(c) uses different words to the words of s 384(2)(b)(iii). The wording of the letter is as follows:

“...

1. Position/classification & contract of employment

...

(c) You will not be required to serve a period of probationary employment. Nevertheless, as your position at Serco is a new contract of employment, all qualifying periods set out in the Fair Work Act 2009 and the Serco Immigration Detention Centres Agreement 2009 will apply.”

[9] I have considered the matter and the submissions of the parties and in my view the wording used by the employer in paragraph 1(c) of the letter of employment when fairly and objectively construed does fall within the description of s 384(2)(b)(iii). In stating that qualifying periods in the Act will apply, employees should have known that the qualifying period of service for an unfair dismissal remedy applied to their employment with Serco. That was clearly the intention of Serco. In my view employees in receipt of that letter would and should have understood that the qualifying period of, in this case, six months’ employment would need to be served with Serco in order for employees to be able to access the unfair dismissal remedy in the Act.

[10] Given the conclusion I have reached, none of the applicants have completed the requisite period of employment for the purposes of accessing the unfair dismissal remedy. No remedy is therefore available and the applications must be dismissed in each case.

VICE PRESIDENT WATSON

Appearances:

C Boyd with B Miles of counsel for the applicants

M Cooper with K Dent of counsel for Serco Australia Pty Ltd

Hearing details:

2010.

Sydney

June 11

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