Jaysheree Rotumah v Trustees of the Roman Catholic Church T/A Marymead Child and Family Centre

[2014] FWC 5868

[2014] FWC 5868

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jaysheree Rotumah
v
Trustees of the Roman Catholic Church T/A Marymead Child and Family Centre
(U2014/8450)

DEPUTY PRESIDENT KOVACIC
CANBERRA, 28 AUGUST 2014

Application for relief from unfair dismissal - application dismissed as employee had not completed the minimum employment period

[1] The following sets out my reasons for dismissing the application as indicated in a decision handed down at the conclusion of a hearing concerning the matter on 26 August 2014.

[2] On 21 July 2014 Ms Jaysheree Rotumah (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment by the Trustees of the Roman Catholic Church T/A Marymead Child and Family Centre (Marymead - the Respondent) on 16 July 2013 was harsh, unjust or unreasonable.

[3] The Applicant commenced work with the Marymead as a casual employee on 5 July 2013 and ceased work on 16 July 2013. As noted above, her application was lodged on 21 July 2014, 370 days after she ceased work.

[4] Marymead raised several jurisdictional objections to the application. They were:

(i) the application was lodged well outside the 21 day statutory time frame specified s.394(2) of the Act;

(ii) the Applicant had not completed the minimum employment period and was therefore not protected from unfair dismissal; and

(iii) the Applicant had not been dismissed but rather had been informed that she would not be offered any further shifts as a casual employee.

[5] With regard to these jurisdictional objections, the threshold issue to be determined is whether or not the Applicant was protected from unfair dismissal. The relevant statutory provisions dealing with the issue are set out below.

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Note: High income threshold indexed to $133,000 from 1 July 2014

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.

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 ...” [Underlining added]

[6] Marymead did not contend that it was a small business employer. Further, it was not disputed that the Applicant had only been employed by Marymead for a period of eleven days. Clearly, the period of employment falls well short of the required minimum employment period. As a result, the Applicant is not protected from unfair dismissal. Accordingly, her application must be dismissed for want of jurisdiction. An order dismissing the application [PR554750]will be issued separate to this decision.

[7] In view of the above, it is not necessary to deal substantively with the other jurisdictional objections raised by Marymead. However, in respect of the third jurisdictional issue, it is worth observing that given Marymead’s advice to the Applicant that she would not be offered any further shifts, the applicant could not have “had a reasonable expectation of continuing employment by the employer on a regular and systematic basis” as per s.384(a)(ii). I should indicate that I consider Marymead’s characterisation of its advice as not constituting a dismissal to be somewhat semantic as in my view such advice effectively amounts to a termination of her employment.

DEPUTY PRESIDENT

Appearances:

The Applicant.

Mr R Shannon, Director Corporate Services, for the Respondent

Hearing details:

2014.

Canberra:

August 26.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR554700>