Josephine Courtney v Baptistcare
[2016] FWC 1234
•10 MARCH 2016
| [2016] FWC 1234 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Josephine Courtney
v
Baptistcare
(U2015/16450)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 10 MARCH 2016 |
Application for relief from unfair dismissal.
[1] On 3 December 2015, Ms Josephine Courtney made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).
[2] Ms Courtney advised that she commenced employment with Baptistcare on 11 May 2015 and that she was notified of her dismissal on 11 November 2015.
[3] On 15 December 2015, Baptistcare filed its employer response form with the Fair Work Commission. The response raised the jurisdictional objection that Ms Courtney had not served the minimum employment period with Baptistcare. This objection was made on the grounds that Ms Courtney took leave without pay from 8 June 2015 until 19 June 2015 and that as a result Ms Courtney had worked two weeks less than six months. Later that same day Baptistcare sent correspondence to the Commission requesting that the matter proceed directly to a hearing prior to conciliation.
[4] On 24 December 2015, correspondence was sent to Ms Courtney pointing out that on the basis of the information contained in the response, she had not served the minimum employment period. The correspondence directed Ms Courtney to file, any submissions, witness statements and any documentary evidence upon which she intends to rely in response to the objection filed by the respondent, with the Commission by close of business 7 January 2016.
[5] Ms Courtney did not reply to that correspondence.
[6] On 11 January 2016, further correspondence was sent to Ms Courtney again requesting that she file documentation upon she intends to rely in response to the objection filed by the respondent, with the Commission by close of business 18 January 2016.
[7] On 19 January 2016, Ms Courtney sent an email to the Commission in which she stated “Please be advised that I have only just received this email as the network has been down in this area and I have only been able to access this address today. i note that the time was given to reply expired yesterday but as I say this was not possible. Although Babtisitcare state that I was on unpaid leave during the six months I was still employed by them, but I had to take part of the leave as unpaid as i had not at the time a crewed sufficient paid leave. My employment was from the 11th May to 11th November 2015 which satisfies the six month limit as Babtistcare is considered a large company as they employ more that the small company limit. It should be noted that I worked the full shift on the 11 November and was told of their decision on completion of that shift.”
[8] On 20 January 2016, a telephone call was made to Ms Courtney and a voicemail was left on her mobile explaining that her documentation had not been completed as per the Commission’s directions.
[9] On 21 January 2016, Ms Courtney filed her outline of argument: minimum employment period and witness statement with the Commission. Later that same day Ms Courtney’s submissions were served on Baptistcare along with directions that they were to file, any submissions, witness statements and any documentary evidence upon which it wished to rely in support of their jurisdictional objection, with the Commission by close of business 27 January 2016.
[10] Baptistcare did not reply to that correspondence.
[11] On 28 January 2016, further correspondence was sent to Baptistcare again requesting that it file documentation upon it intends to rely in response to the objection filed by the respondent, with the Commission by close of business 3 February 2016.
[12] On 1 February 2016, a telephone call was made to Baptistcare and a voicemail was left enquiring after the status of the material that it had been directed to file.
[13] On 2 February 2016, Baptistcare filed its outline of argument, the witness statement of Mr Matthew Hunt and supporting documentation with the Commission.
[14] On 3 February 2016, correspondence was sent to Ms Courtney stating that Baptistcare has advised that she took leave without pay from 9 June 2015 to 19 June 2015. If Ms Courtney disputed this, she was requested to provide evidence to support this by close of business 10 February 2016. Ms Courtney was further advised that if she did not respond to the correspondence that I would issue a decision on the basis of the information currently before me without conducting a hearing.
[15] Ms Courtney did not reply to that correspondence.
[16] Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.
[17] Section 383 of the Act sets out the minimum employment period:
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.
[18] Section 384 of the Act sets out the period of employment:
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
(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.
[19] Section 22 of the Act relevantly provides that:
22 Meanings of service and continuous service General meaning |
(2) The following periods do not count as service: |
… |
(b) | any period of unpaid leave or unpaid authorised absence… |
[20] Ms Courtney accepts that she took a period of unpaid authorised leave. She does not dispute Baptistcare’s evidence that she was absent from 9 June 2015 until 19 June 2015.
[21] Ms Courtney was employed from 11 May 2015. Taking into account the 10 days of unpaid authorised leave, at 11 November 2015 she had not served the minimum period of employment.
[22] In making this decision, no assessment has been made about the merits of Ms Courtney’s case. The Commission has no discretion to waive compliance with the Act.
[23] Section 587(1) of the Act provides:
587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
[24] As Ms Courtney has not served the minimum period of employment, her application has no prospects of success. Consequently, the application is dismissed under section 587(1)(c) of the Act. An Order to this effect will be issued shortly.
DEPUTY PRESIDENT
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