Jay Papacounstantinou v Impact Plumbing and Gas Pty Ltd T/A Impact Plumbing and Gas
[2018] FWC 5696
•20 SEPTEMBER 2018
| [2018] FWC 5696 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jay Papacounstantinou
v
Impact Plumbing and Gas Pty Ltd T/A Impact Plumbing and Gas
(U2018/3283)
| DEPUTY PRESIDENT DEAN | SYDNEY, 20 SEPTEMBER 2018 |
Application for an unfair dismissal remedy - jurisdiction - whether dismissal due to end of training arrangement.
On 28 March 2018, Mr Jay Papacounstantinou made an application pursuant to s.394 of the Fair Work Act 2009 for a remedy in respect of his alleged unfair dismissal by Impact Plumbing and Gas Pty Ltd T/A Impact Plumbing and Gas (Impact Plumbing).
Mr Papacounstantinou had been employed as an apprentice plumber with Impact Plumbing.
Impact Plumbing objected to Mr Papacounstantinou’s application on the ground that it did not dismiss Mr Papacounstantinou. Rather, Impact Plumbing contends it had fulfilled its obligations under a training contract with Mr Papacounstantinou once he attained the required competencies for completion of his apprenticeship, and there was no obligation to continue to employ him past the completion of his apprenticeship.
The application was listed for a jurisdictional hearing in Brisbane on 28 August 2018. At the hearing Mr George Calderon, with permission pursuant to s.596 of the Act, appeared on behalf of Mr Papacounstantinou. Mr James Warbrick, Director, appeared on behalf of Impact Plumbing.
Relevant Legislation
Impact Plumbing relies on s.386(2)(b) of the Act. Section 386 of the Act relevantly provides:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
…
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement;
…”
Issue to be determined
There is no dispute that Mr Papacounstantinou was a person to whom a training arrangement applied, as defined by the Act. Training arrangement is defined in s.12 of the Act as follows:
“training arrangement means a combination of work and training that is subject to a training agreement, or a training contract, that takes effect under a law of a State or Territory relating to the training of employees.”
There is also no dispute that Mr Papacounstantinou’s employment was limited to the duration of the training arrangement.
The issue to be determined is whether his employment was terminated at the end of the training arrangement.
Submissions and evidence
Impact Plumbing
Mr Papacounstantinou entered into a Training Contract for a Certificate III in Plumbing (the Training Contract) with Impact Plumbing on 27 February 2014. A copy of the Training Contract was tendered by Mr Warbrick.
The Training Contract provided for a nominal term of 96 months. There is no dispute that the nominal term had not been reached at the time Mr Papacounstantinou’s employment ended.
Impact Plumbing submitted that Mr Papacounstantinou acquired the competencies required to complete his apprenticeship and as the apprenticeship is ‘competency based’ the period of employment is determined by the length of time it took Mr Papacounstantinou to obtain his eligibility for an award from TAFE Queensland. A Certificate III in Plumbing was issued to Mr Papacounstantinou by TAFE Queensland on 3 May 2018.
Mr Warbrick tendered a document titled ‘Apprenticeship Info – Length of apprenticeships and traineeships’ produced by the Queensland Department of Education and Training (Apprenticeship Information Sheet) which states:
“Queensland apprenticeships and traineeships are competency‑based. This means knowledge and skills which the apprentice or trainee attains, and quality of work they produce, are what matter (rather than the length of time served).”
Mr Warbrick gave evidence that he is a qualified plumber with 19 years’ experience in the industry. He produced a number of emails demonstrating jobs that Mr Papacounstantinou attended and his exposure to on the job training. He stated that both he and TAFE Queensland determined that Mr Papacounstantinou had completed the necessary steps to be eligible for completion of his qualification.
Mr Warbrick raised issues with Mr Papacounstantinou’s performance and conduct. It was Mr Warbrick’s evidence that rather than dismiss Mr Papacounstantinou for serious misconduct following an incident in January 2018, he made the decision to continue to employ him until he was eligible for award of his Certificate III in Plumbing through TAFE Queensland.
Papacounstantinou
It was submitted on behalf of Mr Papacounstantinou that he was dismissed from his employment with Impact Plumbing on 9 March 2018. He submitted that he did not agree to commence the ‘apprenticeship completion process’ as he was not competent in the core competencies of his trade and could not produce work to the industry standard.
Mr Papacounstantinou’s representative contended that an employer cannot determine competency unilaterally and end the apprenticeship on those grounds.
Reference was made to the Apprenticeship Information Sheet which states:
“The employer, apprentice or trainee and training organization may commence the completion process before the nominal term, if they agree that the apprentice or trainee has completed all training and assessment required under the training plan and can produce work to the industry standard”. (Applicant’s emphasis)
Mr Papacounstantinou also referred to a document produced by the Department of Education and Training, titled ‘Completing the apprenticeship or traineeship’ which provides:
“All apprenticeships and traineeships in Queensland are competency-based. This means that when an employer and an apprentice are satisfied all training and assessment required under their training plan has been completed and the supervising registered training organisation (SRTO) has issued the qualification, they may begin the completion process.” (Applicant’s emphasis)
It was submitted that inclusion of an apprentice as an ‘and’ party to the necessary agreement requires that the apprentice agree that they have completed all training and assessment required under the training plan, and specifically can produce work to an industry standard.
In submissions on behalf of Mr Papacounstantinou, it was asserted there were a number of practical components which were not signed off in his training log book. It was argued that the Certificate III issued by TAFE Queensland was not validly issued in accordance with the provisions of the Vocational Education, Training and Employment Act 2000 (Qld) (VETE Act) on the basis that the training log book has not been completed and signed off by Mr Papacounstantinou, Impact Plumbing, or TAFE Queensland.
It was further submitted that the issuing of the Certificate III by TAFE Queensland is not the official end of the training arrangement. It was submitted that in order for the training arrangement to be completed, a Certificate must be issued by the Queensland Department of Employment, Small Business and Training. This did not occur, it was argued, as the requirements for such a certificate to be issued were not met.
Further Submissions
Following the hearing, a further submission was filed on behalf of Mr Papacounstantinou. Impact Plumbing objected to the filing of the submission as the proceedings had concluded. Impact Plumbing provided further submissions in response, to be considered if the submissions on behalf of Mr Papacounstantinou were accepted.
I have accepted the filing of the further material by both parties to the extent that it contained submissions, however I refused to accept any further evidence filed since the conclusion of the hearing.
Mr Papacounstantinou submitted that there is a distinction between the Certificate III in Plumbing issued by TAFE as opposed to the final qualification within the meaning of s.12 of the Act that ends the training arrangement. It was submitted that the Certificate III in Plumbing issued by TAFE addresses the theoretical component only.
The further submissions reiterated that the log book evidencing the practical component of the training arrangement were incomplete and not signed off by Impact Plumbing, TAFE or any other authorised party. It was submitted that absent a completed log book the practical component has not been completed, and absent the practical component having been completed, Mr Papacounstantinou cannot be found to be competent. It was further submitted that in the absence of competency, the training arrangement cannot be found to have been concluded within the meaning of s.386(2)(b) of the Act.
It was submitted on behalf of Mr Papacounstantinou that only once he has been issued a certificate by the Department of Employment, Small Business and Training would the training arrangement be complete. It is maintained that there can be no legitimate end to the training arrangement under the VETE Act until the log book is complete.
Impact Plumbing in its further submissions reiterated that the Certificate III had been issued by TAFE Queensland and would not have been issued if Mr Papacounstantinou had not completed the relevant competencies. Impact Plumbing submitted that if Mr Papacounstantinou takes issue with the issuing of the Certificate III this is a separate matter and should be addressed with TAFE Queensland.
Impact Plumbing further submitted that Mr Papacounstantinou had an obligation to produce the log book for signing and the log book could have been signed by any qualified plumber that he worked with during the apprenticeship. Impact Plumbing submitted that the log book was never produced by Mr Papacounstantinou for signing, as conceded in his evidence.
Did the employment terminate at the end of the training arrangement?
In determining whether there is jurisdiction to hear Mr Papacounstantinou’s unfair dismissal application, I need only deal with the requirements of s.386(2)(b) of the Act. In this regard, I disagree with the submissions made on behalf of Mr Papacounstantinou to the effect that there was a role for this Commission in determining whether an apprentice is ‘competent’ in the practical components of a trade qualification.
The Training Contract entered into by Mr Papacounstantinou and Impact Plumbing specifies the title and qualification to be obtained by Mr Papacounstantinou as Certificate III in Plumbing. The Certificate issued by TAFE Queensland on 3 May 2018 states that Mr Papacounstantinou has fulfilled the requirements for the Certificate III in Plumbing.
In order to issue the certificate, TAFE Queensland must have been satisfied that Mr Papacounstantinou had fulfilled the requirements of the Certificate III in Plumbing as the certificate expressly states. Mr Papacounstantinou confirmed that the he had not disputed the issuing of the Certificate III with TAFE Queensland.
It is not a matter for this Commission to decide the validity of a Certificate issued by TAFE Queensland, particularly in circumstances when the issuing of the certificate has not been disputed by Mr Papacounstantinou with TAFE Queensland. There is no basis for me to conclude that the Certificate III has not been validly issued.
The question then arises as to whether the Certificate III issued by TAFE Queensland represents the end of the training arrangement.
The Training Contract is clear in its terms that the purpose is the attainment of the qualification stated in the Training Contract, in this case being the Certificate III in Plumbing. This was attained.
There is no dispute that the apprenticeship is not time based – it is competency based. The nominal term of 96 months in the Training Contract can perhaps better be described as a maximum term, given that the apprenticeship is competency based. The effect of the nominal term seems to be a date by which the apprenticeship is ended, where the apprentice has not demonstrated the necessary competencies so as to complete the requirements under the training contract. Clause (g) of the Training Contract provides as follows:
“g) this Contract expires if it reaches the term of the contract referred to in question 4 without the apprentice/trainee having attained all the required competencies or a request for an extension of the contact having been endorsed by a State/Territory Training Authority.”
I am satisfied that the attainment of the Certificate III qualification, issued by TAFE Queensland, constituted the end of the training arrangement as defined in s.12 of the Act. The evidence supports a finding that the conditions of the Training Contract were satisfied. Were this not the case, TAFE Queensland would not have issued the Certificate III.
There was no evidence brought on behalf of Mr Papacounstantinou that supported their submission that the Certificate III only addressed the theoretical component of the apprenticeship qualification. Further, there was no evidence that there is a distinction between the Certificate III in Plumbing issued by TAFE as opposed to the final qualification within the meaning of s.12 of the Act that ends the training arrangement.
This is not a case where, despite the submissions of Mr Papacounstantinou, the employer unilaterally determined he was ‘competent’. It was TAFE Queensland who determined this.
I reject the assertion made on behalf of Mr Papacounstantinou that there could be no legitimate end to the training arrangement until the log book was complete. There was no evidence called to support this assertion.
It may be that there is a ‘completion process’ needs to be finalised and which is required by other legislation. However, this is not a matter the Commission needs to be concerned with because it is not a requirement of s.386(2)(b) of the Act. Again, the Commission only need be satisfied that the training arrangement as defined in s.12 – in this case the completion of the Training Contract and the awarding of the Certificate III – has been finalised, not any subsequent administrative processes.
Conclusion
I find that Mr Papacounstantinou was not dismissed by Impact Plumbing, as the employment terminated at the end of the training arrangement in accordance with s.386(2)(b). It therefore follows that there is no jurisdiction for the Commission to hear an unfair dismissal application by Mr Papacounstantinou.
The application is dismissed. An order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
G. Calderon on behalf of Mr Papacounstantinou.
J. Warbrick for Impact Plumbing.
Hearing details:
2018
Brisbane
August 28.
Final written submissions:
30 August 2018.
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