Joshua Fleming v Flemings Landscapes & Plant Hire Pty. Ltd

[2023] FWC 3392

[2023] FWC 3392

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Joshua Fleming
v

Flemings Landscapes & Plant Hire Pty. Ltd.

(U2023/9140)

COMMISSIONER TRAN MELBOURNE, 19 DECEMBER 2023

Application for an unfair dismissal remedy; minimum employment period not met.

1. Mr Joshua Fleming (the Applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s 394 of the Fair Work Act (the Act) in relation to the termination of his employment by Fleming Landscapes and Plant Hire Pty Ltd (the Employer).

1. The Applicant’s employment ended on 2 September 2023.

1. The Applicant said that his employment started on 27 September 2010. The Employer said that the Applicant’s employment started on 27 March 2023.

1. The Act requires that a person has completed at least the minimum period of employment in order to be protected from unfair dismissal.

1. The Applicant, Mr Joshua Fleming, is the son of the director and company secretary of the Employer, Mr Paul Fleming. The Applicant’s case is that he remained continuously employed but with various ‘gaps’ and the impression that when there was work, he was welcome back. The Employer’s case is that each of the gaps ended employment, and that the Applicant’s final period of employment did not meet the minimum period of employment.

1. I find that the Applicant’s last ‘gap’ in employment did break his continuity of service. As such, he cannot make an application for an unfair dismissal remedy as he has not completed at least the minimum period of employment. My detailed reasons follow.

Materials / Evidence / Submissions

1. Directions were issued and material, including witness statements, documentary evidence and submissions, were filed by both parties in accordance with those directions.

1. I held a hearing via Microsoft Teams on 27 November 2023.

1. I heard oral evidence from the Applicant and for the Employer, Mr Paul Fleming, director and company secretary, and Ms Jenny Eaton, subcontracted bookkeeper. Each party had the opportunity to cross-examine the other’s witnesses.

1. After the hearing, I received additional material from both parties in accordance with my further directions.

Relevant Law

1. Section 382 of the Act provides:

“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.”

1. The minimum employment period is defined in s 383:

“(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.”

1. The period of employment is defined in s 384(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.”

1. Section 384 also provides for when periods of service as a casual employee counts towards a period of employment. It is not relevant to this matter.

1. A small business employer is defined in s 23:

“(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a)   subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b)   a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee's employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a)   the employee who is being dismissed or whose employment is being terminated; and

(b)   any other employee of the employer who is also being dismissed or whose employment is also being terminated.”

1. Service and continuous service are defined in s 22:

“(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.”

1. The above provisions have been summarised in Punia v UBM Corp Pty Ltd:[1]

“1. An employee’s period of employment is the period of continuous service with the employer;

2. The period of service does not include certain “excluded” periods;

3. The ordinary meaning of continuous service is the unbroken period of employment;

4. An excluded period does not break the employee’s “continuous service”, but does not count towards the length of period of service;

5.  Excluded periods not affecting continuity of employment but not counting as service include periods of unauthorised absences, periods of unpaid leave or unpaid authorised absence.”

Submissions and evidence

1. The Employer performs mowing and landscaping services, and most of its work is performed at the Maryvale Paper Mill. The Applicant was employed to do this work.

1. The Applicant says the Employer employed 6 people, including himself, at the time that employment ended. The Employer says it employed 4 people, including the Applicant, at the time that the Applicant’s employment ended.

1. The Applicant said that he first started working for the Employer on 27 September 2010. He says that he was employed full-time, usually working 5-6 days per week and “consistently employed since 2010 even though there were certain periods when [he] was on an on-call basis and would assist as needed.” The Applicant supplied evidence of annual inductions at the Maryvale Paper Mill that demonstrate inductions were recorded annually from 2017 to 2021. There were inductions prior to 2017, but appeared more infrequent and are not relevant for this matter. The two most recent inductions occurred on 4 October 2021 and 3 January 2023.[2]

1. The Employer’s submissions are that the Applicant left the employment in July 2022 to perform work for another employer for 7 or 8 months, and then returned to employment with the Employer in around April 2023. The Employer says the Applicant left of his own accord, and the Employer paid out all the Applicant’s entitlements. Mr Paul Fleming, director of the Applicant, said that the Applicant, “wasn’t continuously employed by me while he was working for someone else; that just doesn't happen.”[3]

1. The Applicant’s case is that he took unpaid leave due to a mental health breakdown in around June/July 2023. The Applicant relies on an email exchange between him and the former bookkeeper for the Employer.[4] The Applicant also said that he had a conversation with Mr Paul Fleming about the request for unpaid leave.[5] The Applicant says in a conversation with Mr Paul Fleming that he confirmed he was not resigning. The email that the Applicant relies on relevantly says:

“Further to your discussion with Paul regarding the current situation, once your entitlements have been expended the only option available is unpaid leave.

I trust we will find some resolution soon.”

1. Mr Paul Fleming does not recall the conversation and says he never received the email about the Applicant’s mental health.[6]

1. The Applicant relied on not receiving a separation certificate or final pay slip or any other confirmation that his employment ended at this time. The Applicant also relied on never completing a new tax file declaration when he recommenced work in March 2023.[7]

1. The Applicant says that he made attempts to return to full-time work with the Employer in January 2023 and provided evidence of inductions at the Maryvale Paper Mill for that time.[8] The Employer agrees that the Applicant performed work around this time, but it was a few days work because the Applicant needed cash, and he was not re-employed at this time.

1. The Employer says that the Applicant came to him and asked him for his job back in around April 2023, and the Employer gave him his job back.[9] The Employer agreed that the Applicant had worked for him for many years but that he had ‘plenty of breaks’, where he would leave employment with the Employer, come back a couple of years later, leave again and come back again.[10]

1. There is clearly conflict between the parties, particularly between Mr Joshua Fleming and Mr Paul Fleming. Nevertheless, I found each witness to give truthful evidence. Each became argumentative with the other during cross-examination, but I did not find that answers, when given, were fabrications.

1. I found it believable that Mr Paul Fleming would not have good recollections of conversations that occurred more than a year ago. Mr Paul Fleming also gave evidence that he did not recall emails or other documentary evidence because computers, record-keeping and administrative work were not his forte.[11]

Consideration

The Employer is a small business employer

1. It was not in dispute that the Employer is a small business employer as defined. While the information provided by each party did not agree as to the number of employees at the time that the Applicant’s employment ended, even on the Applicant’s case, the Employer had fewer than 15 employees.

1. Because of s 383(b), the Applicant must have been employed for at least one year at the time that his employment ended.

The Applicant’s employment with the Employer

1. The parties agreed that the Applicant worked for the Employer for a long time, but with various times where he did not work. The parties also agreed that the most recent re-commencement of employment was from 27 March 2023 until 2 September 2023. This is a period of 5 months and 7 days (including both the first and last days), which does not meet the minimum employment period of one year. The parties also agreed that the Applicant stopped working for the Employer around end of July 2023. The parties did not dispute that if a period of employment prior to the end of July 2023 was included, then the Applicant would have completed the minimum one year of employment.

1. There were also a handful of days in January 2023 where the Applicant worked for the Employer. These days were ultimately irrelevant in this matter.

Issue to be resolved

1. The issue I need to resolve is whether the period from July 2023 until March was a period of unpaid leave or unpaid authorised absence. If it was, then in accordance with s 22(3), it would not break continuous service but would not count towards service. So, the 5 months from March 2023 until the end of employment in September 2023 taken together with employment prior to July 2023 would mean that the Applicant had completed a minimum of one year of employment. If the Applicant’s employment ended in July 2022 and he re-started employment in March 2023, then he has not completed the minimum one year of employment.

The period was a break in employment

1. I do find that the period from July 2022 until 27 March 2023 was a break in the Applicant’s employment with the Employer.

1. I find it credible that in a family employment relationship, a person who is a family member of the business owner may leave and return on any number of occasions. However, this does not mean that the employment is continuous service from the first-time employment started. I also find it credible that in family businesses, such arrangements might be informal.

1. While the Applicant clearly sought unpaid leave at this time, it is not clear that the Employer agreed to it. The best evidence to support the Applicant’s case is an email dated 29 June 2022 from the Employer’s former bookkeeper to the Applicant.[12] The email that the Applicant relies on does not indicate that unpaid leave was agreed; it simply states that it is the only option available. The final sentence – I trust we will find some resolution soon – clearly indicates that nothing is yet agreed.

1. There is nothing in the documentary evidence to support the Applicant’s case that the period of almost 9 months from July 2022 to 27 March 2023 was agreed unpaid leave that did not break continuity of service. The evidence of completed inductions was not relevant. Conversely, there is unambiguous evidence from the Employer that when the Applicant left employment in July 2022, he was paid out his entitlements, being unused annual leave,[13] and so his employment ended in July 2022 and re-started on 27 March 2023.

Conclusion

1. As I have found that the period from July 2022 to 27 March 2023 was not unpaid leave and that the Applicant received a payment of his unused annual leave in July 2022, the Applicant’s employment with the employer was from 27 March 2023 until 2 September 2023. Therefore, he has not completed the minimum employment period of one year for his small business employer and is not a person protected from unfair dismissal. I dismiss the application.

COMMISSIONER

Appearances:

J Fleming, for himself.

P Fleming, for the Respondent.

Hearing details:

2023.
27 November.
Melbourne using videolink via Microsoft Teams.

Final written submissions:

4 December 2023.

[1] [2019] FWC 7361 at [7]; referring to Harris v Laing O’Rourke Australia Construction Pty Ltd[2017] FWC 1204 per Saunders C; references removed.

[2] Exhibit A6, Digital Hearing Book (DHB) pp 34 – 35.

[3] Transcript of Proceedings, PN69.

[4] Exhibit A2, DHB pp 22 – 23.

[5] Transcript of Proceedings, PN85, PN142.

[6] Exhibit A3, DHB p 23; Transcript of Proceedings, PN85, PN144, PN148, PN 166.

[7] Transcript of Proceedings, PN132 & 133.

[8] Exhibit A6, DHB p 35.

[9] Transcript of Proceedings, PN264.

[10] Ibid, PN221.

[11] Ibid, PN165.

[12] Exhibit A2, DHB p 35.

[13] Exhibit R4, DHB p 91.

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