J Maitland v Envar Service Pty Ltd T/A Envar Group

[2015] FWC 4345

[2015] FWC 4345

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

J Maitland
v
Envar Service Pty Ltd T/A Envar Group
(U2015/4318)

COMMISSIONER ROE MELBOURNE, 26 JUNE 2015

Application for relief from unfair dismissal.

[1] Mr J Maitland was employed by Envar Group (Envar) as an apprentice from August 2011 until he completed his apprenticeship on 19 October 2014. Mr Maitland was offered ongoing employment and this was reflected in a new contract of employment dated 20 October 2014. The letter of 20 October 2014 stated that:

“the Directors have pleasure in confirming the completion of your apprenticeship effective 19 October 2014. Your new appointment is a wage based position with the following remuneration . . . ”

[2] That new contract of employment stated that there was a six month probation period. Envar Group alleged that Mr Maitland was abusive towards a client on 4 March 2015 and terminated his employment without notice the following morning, 5 March 2015.

[3] Envar argues that when an apprentice is employed there is no guarantee of employment at the end of the training contract. Envar argues that there are therefore two separate employment periods applicable to Mr Maitland, one was for the period of the apprenticeship and the second is the new employment contract which was subject to a probation period of six months.

[4] Mr Maitland refers to s.22 Fair Work Act 2009 (the Act) which defines continuous service as follows:

“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) 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 underPart 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.

(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.”

[5] The definition of service is read in conjunction with s.384 of the Act which defines the period of employment as the period of continuous service that the employee has completed with the employer.

[6] The relevant modern award is the Manufacturing and Associated Industries and Occupations Award 2010 (the Award). That award provides, consistent with the apprenticeship provisions in other awards that unless specifically provided for all provisions of the Award including the NES notice of termination provisions apply to apprentices (clause 15.11 of the Award). For example, the Award provides that “[i]n apprentice is entitled to be released from work without loss of continuity of employment and to payment of the appropriate wages to attend any training and assessment specified in, or associated with, the training contract” (clause 15.11(a)(i)). It is clear that service as an apprentice counts as part of continuous service except where the employment of the apprentice does not continue after the conclusion of the apprenticeship.

[7] The National Employment Standards (NES) exclude those subject to training arrangements other than an apprentice (s.123(d) of the Act) from the notice of termination and redundancy provisions. Apprentices are explicitly excluded from redundancy provisions (s.123(4)(a)). However, as the Award states apprentices are covered by the notice of termination provisions. The employment of Mr Maitland was not terminated in accordance with those provisions. Even if an apprentice was to be terminated in accordance with the provisions and then immediately re-employed I am satisfied that this would not break the continuity of service. It is the intention of both the Award and the NES that apprentices who continue to work for an employer after the completion of their apprenticeship have the period of their apprenticeship counted as part of their period of service. Of course there is specific exemption from unfair dismissal protection when the employment of the apprentice does not continue after the completion of the apprenticeship (s.386(2)(b) of the Act).

[8] Even in cases where there is a short break between the completion of the apprenticeship and the resumption of employment with the employer it may be argued, depending upon the circumstances, that service is continuous. The Building and Construction General On Site Construction Award 2010 contains a specific provision in clause 15.2(e) of the Award:

“Redundancy provisions do not apply to apprentices, provided that where the employment of an apprentice by an employer is continued after the completion of the apprenticeship, the period of the apprenticeship will be counted as service for the purposes of the award and long service leave entitlements and in the event that an apprentice is terminated at the end of their apprenticeship and is re-engaged by the same employer within six months of such termination, the period of the apprenticeship will be counted as service in determining any future termination entitlements.”

[9] The Manufacturing and Associated Industries and Occupations Award 2010 does not contain a similar provision which means that where there is a break in service the particular circumstances are to be considered in the context of s.22 of the Act. In the circumstances of this case, there is no break in service. There was no termination of employment or notice of termination of employment. The letter of 20 October 2014 simply confirms that the apprenticeship was completed on the 19 October 2014 and offers on going employment from the 20 October 2014. What was signed on 20 October 2014 may well be a new or varied contract of employment but the existence or otherwise of a new contract of employment does not necessarily affect the issue of service or continuous service under ss.22 and 382 of the Act.

[10] I am satisfied that the period of continuous service of Mr Maitland is from the commencement of his apprenticeship in 2011 until his dismissal in March 2015. This is a period of continuous service which exceeds the minimum period specified in s.383 of the Act. Mr Maitland is therefore protected from unfair dismissal

COMMISSIONER

Appearances:

C Silver on behalf of the Applicant.

J Miller on behalf of the Respondent.

Hearing details:

2015.

Melbourne (by video link to Perth):

June 26.

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