Jayson Lockley v Westug T/A North West Crewing
[2010] FWA 7186
•16 SEPTEMBER 2010
[2010] FWA 7186 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jayson Lockley
v
Westug T/A North West Crewing
(U2010/10243)
COMMISSIONER WILLIAMS | PERTH, 16 SEPTEMBER 2010 |
Termination of employment - jurisdiction - qualifying period - extension of time.
[1] Mr Lockley, the applicant, has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The named respondent is Westug trading as North West Crewing, however, the employer has advised that the applicant was employed by North West Crewing Pty Ltd who will be the respondent to this application.
[2] The respondent objects to the application and to conciliation being conducted before its jurisdictional objections are determined. The respondent submits that:
(a) the applicant was not dismissed;
(b) the applicant has not completed the minimum period of employment as required by s.382; and
(c) the application has not been filed within the required time as specified in s.394(2).
[3] The parties were invited to provide written submissions. The respondent’s submissions in support of its jurisdictional objections were provided to the applicant, however, the applicant has not provided a submission in reply.
The legislation
[4] Section 382 of the Act prescribes when a person is protected from unfair dismissal as follows:
“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.”
[5] The minimum employment period is defined in s.383 as follows:
“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.”
[6] Next s.385 prescribes when a person has been unfairly dismissed:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[7] Section 386 then defines “dismissed” as follows:
“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:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(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; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
[8] Section 394 then specifies the time frames for lodging an unfair dismissal application as follows:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[9] Finally there is a requirement for the tribunal to decided certain jurisdictional matters before considering the merit of the application as specified below:
“396 Initial matters to be considered before merits
FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; it will
(d) whether the dismissal was a case of genuine redundancy.”
Background
[10] It is not disputed that the Applicant undertook a trial period as a deck hand for five weeks from 28 October 2009 to 2 December 2009. After this, on 30 December 2010, he commenced as a full-time employee, on probation.
[11] The respondent engages employees on an approximately even cycle of time on / time off with each period of duty on, or swing, being between four and five weeks of work.
[12] Two weeks into a period off duty, on 15 June 2010, the applicant received a phone call advising him he would no longer be employed by the respondent.
The respondent’s objections
Was the applicant dismissed?
[13] The respondent submits that by a letter dated 15 December 2009 it confirmed its offer of employment of the applicant in the position of Deckhand (the Offer).
[14] The Offer contained the following provisions:
(a) “Your start date will be recorded as the 30 December 2009. You will report to the Master of your rostered vessel as well as the Duty Officer. The duties that this role will encompass have been discussed with you and once you commence, the Master will explain to you more fully your position.” and
(b) “Please note this position is subject to a probation period of 12 rostered weeks of duty. Upon successful completion of the probationary period your employment will be confirmed.”
[15] Because of the work cycle, “12 rostered weeks of duty” equates to 24 calendar weeks. The 15th of June 2010 was the last day of the applicant’s “12 rostered weeks of duty”.
[16] There is no dispute between the parties that the applicant received notice on 15 June 2010 that his services would no longer be required. That is the applicant was not offered permanent employment past the date upon which the probationary period came to an end. In other words, the applicant's employment was not "confirmed".
[17] The respondent argues that the probationary period of employment is a discrete period of employment and unless the employment is continued by the actions of the parties, the employment will cease at the end of the probationary period due to the effluxion of time.
[18] In these circumstances the result is that there was no dismissal. Whilst the respondent’s letter to the applicant of 15 June 2010 1 indicates that the applicant’s employment “has been terminated” the respondent submits the position at law is that the contract of employment came to an end on that day in any event due to the effluxion of time.
[19] The respondent also argues that s.386(2)(a) of the Act is applicable. This section provides:
“(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or”
[20] The respondent says that because the probationary period of employment is a contract for a “specified period of time”, the effect of this section in circumstances where the probationary period came to an end on 15 June 2010, is that the applicant was not dismissed as defined within the Act.
Was the minimum employment period completed?
[21] With respect to the minimum employment period the respondent argues that pursuant to the Offer, the applicant’s employment commenced on 30 December 2009. There is no dispute that the applicant’s employment ceased effective 15 June 2010. Consequently this period of continuous service is less than 6 months.
[22] It is not disputed that the applicant undertook a trial period over five weeks from on or about 28 October 2009 to on or about 2 December 2009. However during this period the respondent says the applicant was engaged on a casual basis and the provisions of s.384(2) do not assist the applicant because this engagement was not on a regular and systematic basis and the applicant could not have had a reasonable expectation of continuing employment on a regular and systematic basis as the applicant acknowledges that this was a trial period in his letter of 17 June 2010 to the respondent, a copy of which was attached to the application.
[23] The respondent submits that regardless of whether ss.383(a) or (b) applies, the applicant has not completed the required minimum employment period to be protected from unfair dismissal and so the application must be dismissed.
Should an extension of time to lodge be allowed?
[24] Regarding the time for lodging the respondent says the application was filed two days after the 14 day limit provided for under s.394(2)(a). Fair Work Australia is thus required to be satisfied that there are exceptional circumstances that warrant the grant of an extension of time for filing the application.
[25] The emails referred to in the application are presumed to be the applicant’s letters of 17 and 21 June 2010.
[26] Whilst the Applicant's correspondence identifies that he disputed the “dismissal” of his employment it also demonstrates that the applicant:
(a) misconceived the operation of the “workplace agreement”;
(b) continued with that misconception even after being advised of the relevant provision under the “workplace agreement” which the respondent had purported to act as was explained in the respondent’s letter of 21 June 2010 to the applicant;
(c) took no steps between 21 June and 1 July 2010 to otherwise respond or contest the “dismissal”; and
(d) had some eight days, between 21 and 29 June 2010, to file an application with Fair Work Australia but did not do so.
[27] The Respondent should not be prejudiced by the Applicant's apparent inability to understand the relevant provisions of a “workplace agreement”. Thus, waiting for the respondent to respond to his email, in circumstances where the respondent has identified under which provision of the “workplace agreement” it was acting, does not constitute an exceptional circumstance warranting a grant of an extension of time to file the application.
[28] If, as the applicant states, he was “taking further action with fair work” then there was nothing to prevent the applicant from making inquiry with Fair Work Australia as to the nature of such an application and whether any time limits applied. The applicant provides no reason why such steps were not taken between 16 June and 29 June 2010.
[29] With respect to the question of merit, the respondent has identified the actions that it took during the course of the applicant’s employment and the reasons for its decision (not to continue the employment of the applicant beyond the period of probation) in its letter to the applicant of 21 June 2010.
[30] The respondent submits that, whilst possibly not lacking in merit, the applicant’s claim is not strong and the prospects of succeeding on the claim are not of sufficient weight to persuade Fair Work Australia that an exceptional circumstance exists.
Consideration
[31] The respondent in its submissions relies on the terms of the offer made to the applicant. I note however in the correspondence the applicant attached to his application, which he had sent to the respondent on 21 June 2010, he has denied ever receiving such a letter of offer. There is therefore some doubt over this document. In the circumstances I am not able then to rely on the terms of the offer, at this point, as the respondent submits I should do. Consequently on the limited material provided which is disputed I am not able to determine the respondent’s objection as to whether the applicant was dismissed or not.
[32] With respect to the minimum employment period, given that the date when the applicant commenced full-time employment (30 December 2010) is not disputed and the date the employment ended (15 June 2010) is not disputed I accept the argument of the respondent that on the face of these dates the applicant has not completed six months of continuous service with the respondent. I also accept the submission of the respondent regarding the prior trial period of employment not being counted toward the minimum employment period noting that the applicant has not challenged the respondent’s statements as to the facts or their submissions on this point and that there was a break between 2 December 2009, the end of the trial period and 30 December 2009, the commencement of the full-time employment. Consequently I find that the applicant has not completed the minimum employment period specified in s.383.
[33] With respect to the question of the time for lodgement if I am wrong on the minimum employment period point, it is clear the application is out of time.
[34] The applicant included with his substantive application the following in support of his request to extend time for lodging:
“To whom it may concern,
I am writing to explain the reason for my late application.
After the phone call of my dismissal from Westug and the letter I received. I sent managers an email seeking reasons that Westug had discontinued my employment and they replied the next day with very little reasons why I was laid off, the reasons they gave were not good enough reasons to lay someone off. so I looked over the work place agreement and complied a new email which referred to the work place agreement, and the process that it states for an employee to be dismissed and they had not followed that process. i was wanting to get a reply in regards to re-instatement of my employment or I was taking further action with fair work wa. as to the workplace agreement I have to give 7 days for a reply from management which I never received. I have this morning been told that I had only 14 days to lodge this application and hope it still is excepted” (sic)
[35] The reason put forward by the applicant for the delay was that he had chosen to challenge his dismissal in correspondence with the respondent and he wanted to wait for their response with regard to reinstatement before filing his application. Only after this did he become aware of the 14 day time limit.
[36] The applicant acknowledges he received the respondents letter of termination of 15 June 2010 and that following his letter to the respondent, dated 17 June 2010, he received a response which was their letter of 21 June 2010. However he complains that he replied to this himself on 21 June 2010 but heard nothing more from his employer and believed he had to give them seven days to reply.
[37] The respondent’s explanation, in their letter of 21 June 2010, to the applicant of the reasons his employment ended is quite detailed and was promptly given.
[38] Even recognising the applicant’s erroneous belief he had to allow the respondent seven days to reply to his second letter, dated 21 June 2010, this period expired on 28 June 2010. The application however was not lodged until three days after this on 1 July 2010. There is no explanation for this part of the delay at all.
[39] The applicant’s mistaken belief as to any obligation on him to allow the respondent a particular time to reply and his being unaware of the statutory time limit of 14 days are not in my view acceptable explanations for the delay in lodgement. The tribunal has repeatedly found that an applicant’s lack of knowledge of their obligations with regard to such applications does not provide an acceptable explanation for delayed lodgement.
[40] In this case there is not an acceptable explanation for the delay in lodging the application and this weighs against granting an extension. In writing to the respondent the applicant did dispute his dismissal and there is no known prejudice to the respondent, which both weigh in favour of granting an extension. The merits of the application are not able to be assessed without a full hearing so are a neutral factor and there is no issue of fairness as between the applicant and other persons in a similar position.
[41] Considering these factors together the factor of most weight here is that there is no acceptable explanation for the delay in lodgement. Consequently the applicant has not demonstrated there were exceptional circumstances and I do not believe an extension of time should be granted to the applicant to lodge his application.
Conclusion
[42] In summary I find that the application cannot be made because the applicant had not served the necessary minimum employment period and in any event the application has been lodged out of time. Consequently the application will now be dismissed.
COMMISSIONER
1 Annexure B to Respondent’s written submissions.
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