Jessica Mohr v Ermha Ltd
[2024] FWC 1046
•8 MAY 2024
| [2024] FWC 1046 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jessica Mohr
v
Ermha Ltd
(U2024/1726)
| COMMISSIONER WILSON | MELBOURNE, 8 MAY 2024 |
Application for an unfair dismissal remedy – jurisdictional objection – whether minimum employment period completed – held that minimum employment period not completed – jurisdictional objection upheld – substantive application dismissed.
This decision considers whether Ms Jessica Mohr (the Applicant) served the minimum employment period before being dismissed by Ermha Ltd (Ermha or the Respondent) and is thus a person protected from unfair dismissal and eligible to make an unfair dismissal application.
Ms Mohr’s employment with Ermha commenced on 14 June 2023 and her termination of employment took effect on 6 February 2024, after which she commenced an application for unfair dismissal remedy against Ermha on 17 February 2024.
In its initial response to Ms Mohr’s application Ermha objected to continuation of the application on the basis that Ms Mohr had not served the minimum employment period. The objection was the subject of short written submissions from each party and a determinative conference conducted by me on 23 April 2024. Ms Mohr appeared for herself in the determinative conference with Ermha represented by Ms Nes Demir the Respondent’s Manager, Workplace Relations who also filed a short witness statement and made submissions. At the conclusion of the determinative conference, I gave both parties the opportunity to file material about the dates of absence in question as the position of each lacked clarity in certain respects.
For the reasons set out below I find that Ms Mohr was not a person protected from unfair dismissal having not completed the minimum employment period and that her application must therefore be dismissed.
The Fair Work Act 2009 (FW Act) defines eligibility for the making of an unfair dismissal application in the following manner:
“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.”
“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 as a regular casual employee; 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
(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;
the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”
Section 396 of the FW Act provides that whether a person is protected from unfair dismissal must be decided by the Commission before considering the merits of an application.
On a simple calendar basis Ms Mohr was employed for longer than 6 months, having commenced employment on 14 June 2023. Ermha contends that there are several periods of unpaid leave which should not be counted as continuous service which thereby extends the minimum employment period in Ms Mohr’s case. In particular Ermha argue that as Ms Mohr took unpaid leave equating to 67.64 days in her period of employment that number of days must be added to the minimum employment period. The Respondent submitted a spreadsheet setting out the dates in question.
In considering the Respondent’s objection I note that the total absences it put forward in the spreadsheet provided after the determinative conference is for 67.64 days of absence equating to 13.6 weeks whereas the total set out within its submissions and evidence was for 67.61 days of absence equating to 9.7 weeks of absence.
The discrepancy in the total hours appears to be only a minor calculation or rounding error which does not affect the overall reasoning or outcome in this decision. The discrepancy in the total weeks’ absence appears to arise from the fact that the higher amount is derived using a five-day workweek in the divisor. I am unclear how the submission of 9.7 weeks’ absence was calculated.
On 25 September 2023 Ms Mohr’s contract of employment was varied to be an average of 22.25 hours worked per week, worked over five days in each week of the fortnight. As a result I accept that in deriving the weeks of absence equivalent from the number of days absence the use of a divisor other than 5 would be an error.
The Respondent argues that all of the 67.64 days shown on its spreadsheet does not qualify as continuous service as referred to in s.384(1).
In summary the Respondent’s spreadsheet records 76 dates on which Ms Mohr was rostered but did not work for all or some of the shift. Of these there were:
9 dates on which Ms Mohr attended but did not work the whole shift. On some of these the Respondent records that “Applicant authorised to leave shift early. Arrived late without authorisation and left earlier than authorised”;
4 dates on which Ms Mohr was remunerated with paid leave for part of the shift and was unpaid for the remainder owing to an insufficient leave accrual;
50 dates on which Ms Mohr was unpaid for the whole shift.
In its spreadsheet the Respondent has calculated the actual number of rostered hours not worked on each occasion for reason of unpaid leave or unauthorised absence and then calculated the number of days to which that relates by dividing the unworked period of time into the rostered hours. Its total of 67.64 days is then the sum of portions of days not worked.
Ms Mohr’s submissions on the subject include that there were:
6 dates on which she had no contracted shifts;
2 dates when she did not work owing to an employer directive;
1 date, equivalent to 0.55 of a day of absence owing to a client directive; and
41 days of absence described by Ms Mohr as “workplace injury leave”.
These explanations of the Applicant account for 49.55 days.
That she took leave during her employment is not contested by Ms Mohr and neither are the dates of her leave. However, the basis of the leave and how it should be treated for the purposes of continuous service in any assessment of the minimum employment period are matters contested by Ms Mohr.
Continuous service is defined in s.22 of the FW Act which provides so far as is relevant:
“22 Meanings of service and continuous service
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 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) 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.”
(4) – (8) omitted
The general meaning of continuous service is in several parts; three types of leave which do not count as continuous service with several exceptions to the rule. The drafting of s.22 means that a period not worked for reason one of the exceptions would still be counted as continuous service. With respect to those exceptions, there is no contention by Ms Mohr that any of her absences are for community service leave, standdown, or of a kind prescribed by the regulations and thus requiring to be counted as service.
Each of the Respondent’s contentions about Ms Mohr’s absence falls within one of the three periods which do not count as continuous service: unauthorised absence, unpaid leave or unpaid authorised absence. The Respondent’s material submits there were:
58.87 hours/13.77 days of “unauthorised absence” (s.22(2)(a));
255.70 hours/53.87 days of “unpaid leave”, with it being unclear how much “unpaid authorised absence” there was, to the extent that such category is different from “unpaid leave” (s.22(2)(b)).
I accept it is correct that s.22 enables the minimum employment period to be discounted by the aggregate of short periods of absence for less than a rostered shift or any duration. In essence several periods of 10 or 15 minutes at a time, if unauthorised absence or unpaid or authorised leave, can aggregate to a whole day or more which then of course affects the overall minimum employment period. This arises because s.22 refers in several places to “period” or periods”. The principal definition of “period” as a noun is “an indefinite portion of time”.[1]
Ms Mohr puts forward 41 days of “workplace injury leave”. This followed her notification to the Respondent in November 2023 that she had sustained a compensable workplace injury. The status of the notification according to the parties is that the matter was subject to an offer by the insurer in conciliation but without the insurer accepting the claim to be referable to a compensable injury.[2]
The Commission has previously said on the subject that in assessing matters such as these that where an employee has been absent on unpaid sick leave and a workers compensation claim relating to the period of leave is rejected the absence does not count as service for the purposes of a minimum employment period.[3] It follows this reasoning that Ms Mohr’s leave from on or around 19 November 2023 must be counted as unpaid leave, thereby not counting as service for the purposes of assessment of continuous service.
The Respondent does not deal in its submissions with the 6 dates on which Ms Mohr says she had no contracted shifts; the 2 dates she says she was absent due to an employer directive; or the 1 occasion on which she says she was directed away from work by the client. These occasions are totalled by the Respondent to be 8.55 days of absence or, on the basis of the Respondent’s divisor of 5 shifts to the week, 1.71 weeks.
It is unnecessary for me to determine whether these dates should be included in the Respondent’s count of the minimum employment period or not. Even if I did include the dates as counting toward the minimum employment period, it would not have been served.
This is because the total of the other absences on which the Respondent relies. Adjusting its total of 67.64 days/13.64 weeks by removing the 8.55 days/1.71 weeks attributable to the three groups referred to by Ms Mohr leaves 59.09 days/11.82 weeks to be added to the minimum employment period. In calendar terms Ms Mohr had worked at the Respondent for 6 months on 14 December 2024. Using the above calculation to determine how much further continuous service she required means the minimum employment period in her case would be completed on or 12 February 2024, which is after the date on which her dismissal took effect, 6 February 2024. If all of the 67.64 days/13.64 weeks were added to the minimum employment period it would have been completed on 19 February 2024.
For the above reasons I am not satisfied that Ms Mohr had completed the minimum employment period in order to be a person protected from unfair dismissal.
As a result of the foregoing, I must dismiss Ms Mohr’s application for an unfair dismissal remedy and an order doing so is issued at the same time as this decision.
COMMISSIONER
Appearances:
Ms J. Mohr for herself
Ms N. Demir for the Respondent
Hearing details:
2024.
Melbourne (via video conference);
23 April.
Final filing of material:
30 April 2024 for the Respondent
6 May 2024 for the Applicant
<PR773795>
[1] The Macquarie Dictionary Online, accessed 8 May 2024.
[2] Transcript, PN 26 – 36, 89 – 91.
[3] Younan v Westpac Banking Corporation[2014] FWC 654, [30], per Roberts DP, see also Whipps v. Australian Leisure and Hospitality Group Pty Ltd T/A ALH Group Ltd[2017] FWC 1990 and on appeal [2017] FWCFB 2799.
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