Jamie Young v PT Powder Coaters Pty Ltd T/A PT Powder Coasters & Sandblasting Services

[2019] FWC 3773

[2019] FWC 3481

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jamie Young
v
PT Powder Coaters Pty Ltd T/A PT Powder Coasters & Sandblasting Services
(U2019/1030)

DEPUTY PRESIDENT BEAUMONT PERTH, 18 JUNE 2019

Application for an unfair dismissal remedy – objection that minimum employment period not served – jurisdictional objection dismissed.

[1] Mr Young, formally employed by PT Powder Coaters Pty Ltd T/A PT Powder Coasters & Sandblasting Services (Powder Coaters), made an application to the Fair Work Commission (the Commission) for a remedy in respect of his dismissal.

[2] Powder Coaters is a small business employer with nine employees. It was asserted that Mr Young was dismissed for performance issues, presenting late for work, and then embarking on a heated disagreement with another employee and his Manager. In the days preceding his dismissal he was questioned about his tardiness by his Manger, Mr Jordan Buzzard. During these discussions, Mr Young allegedly became angry and said:

Fuck Dragan, I’m not taking order from him, he isn’t Australian, I don’t have to listen to him, his is a cunt, he can’t speak fucking English, he can get fucked.

[3] Mr Young concedes that there were, in effect, heated verbal discussions with both Dragan and Mr Buzzard. The abovementioned statement was not included in Mr Young’s evidence.

[4] The initial issue to resolve is whether Mr Young was protected from unfair dismissal. Powder Coaters argues that he is not because he has not satisfied the minimum employment period, which for a small business employer is a year. There was no controversy regarding Power Coaters status as a small business employer.

[5] Mr Norm Trandos, Director of Powder Coaters, stated that on 17 January 2019, Mr Young was notified he had been dismissed and his dismissal took effect on that same day. Mr Young disputes this and asserts that he was notified on 21 January 2019.

[6] Having commenced employment on a casual basis on 18 January 2018 and, having not been employed as a permanent employee until 19 March 2018, Powder Coaters contended Mr Young had not satisfied the minimum employment period as the period from January to March did not count toward it.

[7] For a person to be protected from unfair dismissal they must have, among other things, completed a period of employment with their employer which is at least the minimum employment period. 1 The Fair Work Act (2009) (Cth) (the Act) describes an employee’s period of employment with an employer as the ‘period of continuous service the employee has completed with the employer at that time as an employee’.2 Therefore, to meet the definition of ‘minimum period of employment’ the period of service with the employer must have been ‘continuous’.3

[8] In the case of a casual employee, a ‘period of service’ with an employer will not count towards an employee’s period of employment unless:

a) the employment was on a regular and systematic basis; and

b) the employee had a reasonable expectation of continuing employment on a regular and systematic basis.

[9] For Mr Young to be protected from unfair dismissal he had to have served a minimum employment period of one year. 4 Therefore, the issues to be determined are:

a) did Mr Young’s period of employment from 18 January 2018 until 19 March 2018 count toward the minimum employment period for the purpose of s 382 of the Act;
b) were there periods of unpaid leave or unpaid authorise absence that did not count as service; 5
c) when did Mr Young’s employment end; and
d) did Mr Young completed a period of employment of one year.

[10] It is observed that the parties were self-represented. Consequently, both were provided with clear guidance on what was expected from them concerning the hearing and that much would turn on the evidence they adduced. Relevant resources were provided by way of guidance.

[11] At the commencement of the hearing Mr Trandos advised that Mr Buzzard would not be giving evidence. However, during the hearing Mr Buzzard could be heard at times providing Mr Trandos with information. This is of course understandable given he was intimately involved with the events of 17 January until 21 January 2019. It is unclear why Mr Trandos opted not to call Mr Buzzard. However, in the circumstances, I can reliably find facts, draw conclusions from them, and determine the threshold issue without drawing any inference such as that referred to in Jones v Dunkel. 6

Background

[12] Mr Young commenced work with Powder Coaters on 18 January 2019, 7 and for the first two months was employed on a casual basis.8 He gave evidence that during the two months he worked full-time on a 38 hour a week basis. There were two types of shifts worked, an 8.30am until 4.45pm shift or a 6.30am until 2.45pm shift. Mr Young stated he understood that the first two months constituted a probationary period, which aligned with the evidence of Mr Trandos. Regarding his knowledge of start and finish times, in addition to the days worked, Mr Young said that he just knew from when he commenced work with Powder Coaters he was working on a full-time basis.

[13] Mr Trandos’ evidence was that Mr Young started on a permanent full-time basis on 19 March 2018 and that his usual start time was 8.30am and his finish time was 4.45pm. After working the initial two month period, Mr Trandos’ said that Mr Young would often not show up for work, but was not given any warnings.

[14] Although Q2(i) of the ‘Respondent’s Outline of Argument: objections’ notes ‘[U]npaid sick leave (can provide details if required)’, no further evidence was provided by Mr Trandos concerning the number of absences, when the absences occurred, and whether the absences were unauthorised or unpaid. This is notwithstanding guidance to parties regarding preparation for a hearing.

[15] Contrary to Mr Trandos’ account, Mr Young said that he had had absences from work for sickness and medical conditions. However, he always rang up and there was never a time where he did not provide a medical certificate.

[16] On Thursday, 17 January 2019, Mr Young was said to have presented late for work, and was asked why he was late by a co-worker named Dragen. According to the parties a heated discussion ensued, and Mr Young immediately sought out Mr Buzzard, the General Manager, to inform him what had occurred. By all accounts, Mr Young subsequently had a heated discussion with Mr Buzzard.

[17] Mr Young became upset when informed by Mr Buzzard that Dragen had been given the responsibility to deal with him, and Mr Buzzard supported Dragen’s actions. Mr Young gave evidence that Mr Buzzard advised him that he was not satisfied with Mr Young’s performance. Mr Young said that he felt angered by this, and let down that Mr Buzzard had not told him there were issues.

[18] According to Mr Young, Mr Buzzard confronted Dragen, informing him that he was no longer to deal with Mr Young as he would do so, and then Mr Buzzard proceeded to tell Mr Young ‘[I]f I fucked up I would be gone’. 9

[19] Mr Young said that he left work having grabbed his keys as he felt distressed. 10 On arriving home he contacted WorkSafe and made a workplace bullying complaint and thereafter called his doctor as he had an anxiety attack.11 Mr Young’s evidence was that the doctor provided a medical certificate.

[20] Later in the day on 17 January 2019, Mr Young said that he returned to Powder Coaters to speak to Mr Buzzard about filing a complaint about Dragen and provided him with his medical certificate. 12 According to Mr Young, Mr Buzzard declined to talk about the dispute further and informed him that he would discuss his continuing employment on 18 January 2019.13 Mr Young states that he was not called on 18 January 2019, and he contacted Mr Buzzard on 21 January 2019 to organise a meeting to resolve the issue.14 Mr Buzzard agreed to meet.15

[21] Mr Trandos’ account of what occurred over 17 January to 21 January 2019 differs to that of Mr Young.

[22] According to Mr Trandos, Mr Young was asked to leave on 17 January 2019 and thereafter Mr Buzzard attempted to call him numerous times. As Mr Young would not answer his phone, the business was forced to send a letter on 17 January 2019 advising him of his extreme misconduct and that his employment was terminated. As far as Mr Trandos was concerned Mr Young’s employment terminated on 17 January 2019.

[23] However, Mr Young expressed that he did not receive the letter of termination dated 17 January 2019 until 21 January 2019. Mr Young’s evidence was that he was not informed of his dismissal until meeting with Mr Trandos and Mr Buzzard on the morning of 21 January 2019. At that meeting he was told that his employment had been terminated for gross misconduct and that it was effective immediately.

What are the relevant legislative provisions and how do we interpret them?

[24] A person is protected from unfair dismissal if they have completed the minimum employment period. 16 The meaning of ‘minimum employment period’ for the purpose of this application is a period of one year.17

[25] 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.

(2) [When casual employment counts toward period of employment]

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… (underlining my emphasis).

[26] The starting point is that a period of employment is also referred to as a period of continuous service.

[27] Section 22 defines the terms ‘service’ and ‘continuous service’, the relevant subsections of which:

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…

[28] A period of continuous service can be made up of a series of periods of service. 18 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.19

[29] However, contiguous periods of service will only count towards the employee’s period of employment if the requirements in s 384(2)(a)(i) and (ii) are met. Those requirements are, in short, that the employment was on a regular and systematic basis, and during the period of service the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

[30] In the decision of Ponce it was observed that ‘it is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement’. 20 It was further explained in Ponce that it is not necessary to establish that shifts, and start and finish times were regular or rostered, to establish that the employment was on a regular and systematic basis’.21

[31] In Yaraka Holdings, 22 Madgwick J, concurring with the majority, said with respect to the phrase ‘regular and systematic’ that a ‘regular… basis’ may be constituted by frequent though unpredictable engagements, and that a ‘systematic basis’ did not have to involve predictability concerning those engagements or an assurance of work. Regarding ‘systematic basis’ he said that it implied something more than regularity if regularity were to refer to frequency. The basis of engagement, said Madgwick J had to exhibit something that could fairly be called a system, method or plan (cf the definition of ‘systematic’ in the Macquarie Dictionary, revised 3rd edn, 2001).

Did Mr Young’s period of casual employment form part of the minimum employment period?

[32] The finding as to whether employment is regular and systematic is an objective one having regard to the totality of the evidence.

[33] It was clear from the evidence of both Mr Young and Mr Trandos that Mr Young, whilst employed on a casual basis, worked five days a week and kept regular start and finish times. On any view, it could be said that such employment was regular and systematic.

[34] As to whether there was a reasonable expectation of on-going employment, both parties confirmed that they considered the initial months as constituting a ‘probationary period’. The successful completion of a probationary period would usually indicate, on any objective basis, that the employment would now be ongoing, or permanent. The converse position being, that dissatisfactory performance in such period may result in an extension of the period or dismissal. There was no evidence to the effect that Mr Young was informed during the ‘probationary’ period that his performance was dissatisfactory or that the business did not intend to engage him in a permanent position moving forward.

[35] I have therefore concluded that Mr Young’s casual employment was regular and systematic, and during that period, Mr Young had a reasonable expectation of on-going employment. I find that the regular and systematic casual employment occurred for the period of 18 January 2018 until 19 March 2018 and forms part of Mr Young’s continuous service for present purposes. This period therefore counts toward the minimum employment period for the purpose of s 382(a) of the Act.

Were there periods of unpaid leave or unpaid authorise absence that did not count as service?

[36] While periods of unpaid leave or unpaid authorised absences were alluded to by Mr Trandos, and the Form F3 made mention of the same, there was simply no evidence before me to conclude that there were such periods.

When did Mr Young’s employment end?

[37] A termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated. 23 In Ayub v NSW Trains,24 the Full Bench said:

[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective. [(1986) 60 ALJR 78] Where notice is given of the termination of the employment contract, then the contract will terminate at the end of the period of notice specified in the communication to the employee. [(1984) 5 FCR 447] The principles in this respect were summarised by the Supreme Court of NSW (White J) in Fardell v Coates Hire Operations Pty Ltd [(2010) 201 IR 64] as follows:

[82] To be effective, a notice of termination of a contract of employment must specify a time when termination is to take effect, or that time must be ascertainable (G J McCarry, Termination of Employment Contracts by Notice (1986) 60 ALJ 78 at 79; Burton Group Ltd v Smith [1977] IRLR 351 at 354). The notice is to be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties (Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; [1997] AC 749 at 767-768; Carter v Hyde [1923] HCA 36; (1923) 33 CLR 115 at 126; Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673 at 677; Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; (1999) 47 NSWLR 473 at [99]).

[38] It was Mr Young’s evidence that he was not notified of his dismissal until 21 January 2019 at which time he was verbally informed that his employment had been terminated for gross misconduct and he had received the letter of 17 January 2019, informing him of the same. Included in Mr Young’s documents were what appeared to be photocopies of an envelope addressed to him, and stamped with the date ‘21.01.19’, with what seems to be the back of the envelope bearing the name of PT Powder Coaters.

[39] When Mr Trandos was asked in cross examination whether Mr Young was made aware of his dismissal on 17 January 2019, he replied to the effect:

Mr Young we were calling you numerous times; took your belongings and it did not look like you were coming back. We were forced to send you a letter.

[40] While the evidence of Mr Trandos was that he understood the letter was sent on 17 January 2019, it appears that it was Mr Buzzard who sent the letter and in that respect no detail was provided concerning the postal method used (pre-paid, express post or registered). There was no evidence before me to show that Mr Young had received the letter before 21 January 2019. Based on the evidence before me, I have found that Mr Young’s employment ended on 21 January 2019. 25

Conclusion

[41] I am satisfied Mr Young’s period of service whilst employed on a casual basis counts towards his period of employment with Powder Coaters. He had worked full-time for just over a year with Powder Coaters. There was no evidence of excluded periods which would reduce his period of service with Powder Coaters such as a period of unauthorised absence or unpaid leave. Therefore, I have concluded that Mr Young has completed the relevant minimum employment period.

[42] Powder Coaters’ jurisdictional objection that Mr Young has not served the minimum employment period is therefore dismissed and the matter will now be remitted to the Unfair Dismissal Case Management Team for further programming.

DEPUTY PRESIDENT

<PR708498>

 1   Fair Work Act 2009 (Cth) s 382.

 2   Ibid s 384(1).

 3   Holland v UGL Resources Pty Ltd. T/A UGL Resources[2012] FWA 3453 [16].

 4   Fair Work Act 2009 (Cth) s 382.

 5   Ibid s 22(2).

 6 (1959) 101 CLR 298.

 7   Exhibit R3.

 8   Exhibit A1 Witness Statement of Jamie Young (Young Statement).

 9   Ibid.

 10   Ibid.

 11   Ibid.

 12   Ibid.

 13   Ibid.

 14   Ibid.

 15   Ibid.

 16   Fair Work Act 2009 (Cth) s 382(a).

 17 Ibid s383(b).

 18   Wayne Shortland v The Smiths Snackfood Co Ltd [2010] FWAFB 5709.

 19   Ibid.

 20   Ponce v DJT Staff Management Services Pty Ltd t/as Daly's Traffic[2010] FWA 2078.

 21 Ibid [87].

 22   Yaraka Holdings Pty Ltd v Giljevic (2006) 149 IR 339 [89], [91].

 23   Burns v Aboriginal Legal Service of Western Australia Inc (2000) T3496.

 24   [2016] FWCFB 5500.

 25   Fair Work Act 2009 (Cth) s 383(b).

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