Judith Carne v Yulu-Burri-Ba Aboriginal Corporation for Community Health

[2015] FWC 966

[2015] FWC 966

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Judith Carne
v
Yulu-Burri-Ba Aboriginal Corporation for Community Health
(U2014/10502)

DEPUTY PRESIDENT ASBURY BRISBANE, 21 APRIL 2015

Application for relief from unfair dismissal - minimum employment period not met - application dismissed.

Introduction

[1] Mrs Judith Carne applies under s. 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy in relation to the termination of her employment by the Yulu-Burri-Ba Aboriginal Corporation for Community Health (Yulu-Burri-Ba) Mrs Carne asserts that her dismissal was harsh, unjust and/or unreasonable. Yulu-Burri-Ba objects to Mrs Carne’s application on the grounds that she was not a person protected from unfair dismissal because Mrs Carne had not completed the minimum employment period as required by s.382(a) and s. 383(a) of the Act. This decision relates to the jurisdictional objection only.

[2] Mrs Carne was employed by Yulu-Burri-Ba as its Chief Executive Officer. It is not in dispute that Mrs Carne was offered employment by email/letter dated 20 November 2013 with a commencement date to be confirmed. Mrs Carne accepted that offer by email dated 21 November and stated that she “would like to start” on 17 December 2013. Mrs Carne’s employment was terminated on 13 June 2014.

[3] Yulu-Burri-Ba is not a small business employer and the minimum employment period that Mrs Carne was required to have served so that she was protected from unfair dismissal is a period of six months. If Mrs Carne’s employment commenced on 17 December 2013, she was required to be employed until at least midnight on 16 June 2014, 1 to be a person protected from unfair dismissal.

[4] Mrs Carne asserts that her employment with Yulu-Burri-Ba actually commenced on 27 November 2013 on the basis that she undertook a number of activities including attendances at meetings and a Conference at the request of members of the management committee of Yulu-Burri-Ba and that this is evidence that she was regarded as an employee of the Organisation from this November 2013 onwards.

[5] Yulu-Burri-Ba disputes that Mrs Carne was employed from 27 November and asserts that even if Mrs Carne was employed from that date, her service could not count for the purposes of completing the minimum employment period required by s. 382(a) and s. 383(a) of the Act.

[6] The matter was initially listed for hearing before Deputy President Booth who granted permission for Yulu-Buri-Ba to be legally represented. The matter was subsequently allocated to me to hear and determine the jurisdictional objection after an attempt at further conciliation did not resolve the matter. After considering the views of the parties and the matters in s.399(b) I determined to hold a hearing.

[7] Evidence in support of the jurisdictional objection was given on behalf of Yulu-Burri-Ba by Ms Renee Blackman, formerly acting Chief Executive Officer and Ms Lynette Shipway, Chairperson. Evidence was given in opposition to the jurisdictional objection by Mrs Carne and by Mr Ian Levinge, Director. I have considered all of the evidence and submissions.

Issues for determination

[8] The matters for determination in this decision are whether Mrs Carne’s employment commenced on 27 November 2013 or whether the period between that date and 17 December 2013, or any portion thereof, is a period of service that counted for the purposes of establishing the period of Mrs Carne’s employment so that she has served the minimum period required for her to be a person protected from unfair dismissal.

Relevant legislative provisions

[9] Section 382 of the Act, so far as is relevant to this matter, defines when a person is protected from unfair dismissal in the following terms:

“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...”

[10] Section 382(a) is relevant to this matter.

[11] Minimum employment period is defined as:

“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.”

[12] As mentioned above it is not disputed that the relevant minimum employment period is that specified by s.383(a) of the Act - 6 months. The approach to calculating periods expressed in months 2 is to apply s.2G of the Acts Interpretation Act 1901 (Cth) which provides as follows:

“SECT 2G Months

(1)  In any Act, month means a period:


(a)  starting at the start of any day of one of the calendar months; and
(b)  ending:

(i)  immediately before the start of the corresponding day of the next calendar month; or

   (ii)  if there is no such day--at the end of the next calendar month.

Example 1: A month starting on 15 December in a year ends immediately before 15 January in the next year.

Example 2: A month starting on 31 August in a year ends at the end of September in that year (because September is the calendar month coming after August and does not have 31 days).

• In any Act, a reference to a period of 2 or more months is a reference to a period:

(a)  starting at the start of a day of one of the calendar months (the starting month); and
(b)  ending:

(i)  immediately before the start of the corresponding day of the calendar month that is that number of calendar months after the starting month; or

(ii)  if there is no such day--at the end of the calendar month that is that number of calendar months after the starting month.

Example 1: A reference to 6 months starting on 15 December in a year is a reference to a period starting on that day and ending immediately before 15 June in the next year.

Example 2: A reference to 6 months starting on 31 October in a year is a reference to a period starting on that day and ending at the end of April in the next year (because April is the calendar month coming sixth after October and does not have 31 days).

[13] Period of Employment, so far as is relevant to the current matter, is defined by s.384 of the Act as:

“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.”

[14] The definition of continuous service is defined by s.22 of the Act as:

“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 underPart 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.”

Submissions and evidence for Yulu-Burri-Ba

[15] The Respondent submitted that the question for determination by the Commission is whether a contract of service was formed between the Applicant and the Respondent from 27 November 2013. 3 In order to answer this question, it is necessary for the Commission to consider whether the parties had an intention to create contractual relations from this date.

[16] In relation to the question of determining whether parties intended to create contractual relations, Yulu-Burri-Ba referred the Commission to the Decision of the High Court in Ermogenous v Greek orthodox Community 4, where it was held that:

“Because the search for the "intention to create contractual relations" requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word "intention" is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.” 5

[17] It was submitted that the onus lies on the Applicant, as the party asserting the existence of a legally binding relationship, to prove the existence of that relationship. 6 The general principle is that where a person agrees to perform work in return for payment, it is assumed that the necessary intention to create legal relations exists.

[18] Yulu-Burri-Ba submitted that it is not in dispute that it was the express agreement of the parties that the Applicant would commence “working” as the CEO of the Respondent from 17 December 2013. In this regard, Yulu-Buri-Ba relied on the evidence of Ms Blackman who exhibited to her statement a series of emails. Ms Blackman was not cross-examined and her evidence was uncontested. The first email in the chain was sent by Ms Blackman to Mrs Carne at 12.28 pm on 19 November 2013, and confirmed that Mrs Carne’s application for the CEO position was successful and requested the Mrs Carne confirm her start date. 7 Mrs Carne responded on 20 November 2013 at 8.11 am indicating that she accepted the offer and would confirm her start date as soon as possible.

[19] At 10.41 am on 20 November 2013, Ms Blackman forwarded an email to Mrs Carne in the following terms:

“Thank you Judith and welcome.

Just so that you are aware there are a couple of meetings coming up over the next two weeks that would be beneficial for you to attend. The first is the QAIHC conference being held on the 22nd of Nov, that’s this week and then; the a Joint Management Committee meeting scheduled for next Wednesday 27th Nov at the Capalaba clinic at 3pm concluding at 4.30pm. It will be a chance to meet your senior clinicians and understand the involvement and support provided by the Institute for Urban Indigenous Health” 8(errors in original)

[20] Mrs Carne responded to that email at 11.56 am on 21 November as follows:

“Hello Renee

Just a quick email in a busy day to say yes, all those dates/meetings look fine. I’ll email you shortly to ask more details. I sent my official acceptance letter through to you yesterday with my written agreement to the Letter of Offer. I would like to start on Tuesday 17 December if I may. I hope this date is acceptable to you. Pls let me know if it presents any difficulties.” 9

[21] Ms Blackman responded stating that the 17th would be great and that she would send through information about the meetings to Mrs Carne including information about previous meetings. 10 On 4 December at 10.34 am, Ms Blackman again sent an email to Mrs Carne asking if Mrs Carne was available for a handover that week. The email stated that Friday would be a good day if Mrs Carne was free and that Ms Shipway would also like to know if Mrs Carne was available to take up her contract any earlier than 17 December.11

[22] On 6 December 2013 Mrs Carne responded to that email as follows:

“Good morning Renee

My apologies for being away from my email for a day or so. Leo (my 22 year old son) had a shoulder reconstruction on Wednesday and I spent yesterday at the Wesley. He came home yesterday afternoon and he’s at home with me for a few days but he’s had a bad night and is not really able to be left alone yet. So my apologies, but I won’t be able to meet with you today.

Having said that, I may be able to catch up with you next week but I would need to check my work diary on Monday morning to confirm that. I’ll email you when I’ve had a look at it.

Unfortunately I won’t be able to start before Tuesday 17 December. Please convey my sincere apologies to Aunty Lyn. I am still working out my notice at Red Cross, and my last day with them is Friday 13.

Renee - if there is any pre-reading that I can do that will assist in a smooth transition, please send it through. And I will check my diary on Monday morning.

Cheers

Judith.” 12

[23] Ms Blackman responded to this email indicating that Monday [9 December] would be a suitable time to meet with Mrs Carne and that she would be at Bowen Hills on that date. Mrs Carne responded suggesting Wednesday [11 December] for the meeting and asked whether Ms Blackman would be at Bowen Hills then as Mrs Carne’s employer at that time was only five minutes away from that location.

[24] Ms Shipway said that a meeting between Mrs Carne and the Board was held on 27 November 2013 for the purpose of discussing the position of CEO and the expectations of the Board in relation to that role. Ms Shipway said that she did not tell Mrs Carne that she was required to attend the QAIHC Conference, but rather said, either at the interview or subsequently, that if Mrs Carne wished to see how a community controlled organisation was run, it would be a good chance for her if she had the time to come to the QAIHC conference in South Brisbane, on 28 March. 13

[25] Ms Shipway said that at the Conference, when she introduced Mrs Carne to various attendees, Ms Shipway stated that Mrs Carne was going to be the new CEO of Yulu-Buri-Ba. Ms Shipway said that she did not tell Mrs Carne that she had had her first day as CEO. Ms Shipway heard Mr Levigne offer Mrs Carne payment for the day she attended the Conference or a day off in lieu at some future time, but did not comment as this matter had not been discussed with her previously.

[26] Essentially Yulu-Burri-Ba does not dispute that Mrs Carne attended the meetings and the conference as asserted but maintains that these attendances do not evidence an intention to create contractual relations. In particular Yulu-Buri-Ba points to the fact that Mrs Carne was not paid for any services on these occasions and there is no evidence of any other term of the contract of employment at these times. Yulu-Buri-Ba submitted that Mrs Carne was continuing to work for her former employer during this period and voluntarily attended the meetings and the Conference as part of the transition into her new role as its CEO.

[27] In the alternative, should the Commission find that the Mrs Carne did commence employment on 27 November 2013, Yulu-Buri-Ba submits that, whilst not breaking her continuous service, each attendance cannot count towards the Applicant’s continuous service because the periods between each attendance could only be periods of unpaid leave or otherwise an unpaid authorised absence.

[28] In the further alternative, it is submitted that if Mrs Carne was employed on each attendance they were discrete engagements and do not form a part of her continuous service with the Respondent.

Submissions and evidence for Mrs Carne

[29] Mrs Carne submitted that each attendance with representatives of Yulu-Buri-Ba was at its direction and had the effect that her employment commenced on 27 November 2013. Mrs Carne also submitted that these attendances were part of her orientation or induction into the Respondent’s business. In relation to the submission that the attendances were discrete engagements, Ms Carne said that if this was the case, she was on authorised unpaid leave between those engagements. It is convenient to consider Mrs Carne’s evidence in relation to each attendance individually.

[30] In relation to the meeting with the Board on 27 November 2013, Mrs Carne stated that on 25 November 2013 she received a call from Ms Desley Grose, an employee of Yulu-Buri-Ba, advising that Ms Shipway required her to attend a meeting with the Board. This meeting was held at the Grand View Hotel and took place from 2.30pm until 5pm. The meeting included discussion of what was said to be confidential and important management matters relating to Yulu-Buri-Ba. Mrs Carne said that this meeting was part of her induction.

[31] On 28 November 2013, Mrs Carne attended the QAIHC conference with Mr Levinge and Ms Shipway. It is Mrs Carne’s evidence that she was “advised...of the requirement to attend the...conference at the interview on 8 November 2013”. 14 In this regard, Mrs Carne relied on the evidence of Mr Levigne which is set out in a letter addressed to Mr Carne and attached to his statement, in the following terms:

“I understood that your attendance at the QAIHC conference of 28 November 2013 to be work as it had been previously advised to you, by myself at interview, and also in follow up by the Personal Assistant to the Acting CEO (a task the PA would only perform under instruction from the then CEO or Chairperson), and also reinforced by the Chairperson and myself at our meeting on 27 November. This conference was also part of your induction into the YBB organisation and its numerous associates, networks and links. I considered it to be so much a formal work day that I specifically asked you how you wanted to be paid for that day’s work.”

[32] While at the Conference, it is Mrs Carne’s evidence that she was introduced to other participants by Ms Shipway and Mr Levigne as ‘our new CEO’. 15 Mrs Carne also gave evidence that Ms Shipway directed her to negotiate on behalf of the Respondent at the conference.16 Mrs Carne said that Ms Shipway told her to go and talk to another Conference participant to see if Yulu-Burri-Ba could get diabetic retinopathy eye screening offered by another organisation. Mrs Carne described this as a direction to negotiate. Mrs Carne said that the negotiation involved her expressing a wish that Yulu-Burri-Ba would be the first clinic to access this initiative and offering to pay for ferry transport costs, which resulted in agreement about the delivery of the service.

[33] Further, the evidence of Mrs Carne and Mr Levigne is that at the conclusion of the conference, Mr Levinge enquired “how [Mrs Carne] would like to deal with...remuneration for the day” 17. Mrs Carne said that this meeting also comprised part of her induction. Mr Levigne agreed that he made this comment but said he could not recall whether he had first discussed it with Ms Shipway

[34] Mrs Carne said that she attended a meeting with Mr Lavigne on Saturday 30 November 2013 at his direction and that this meeting was to discuss financial reporting and areas of improvement for Yulu-Buri-Ba. This meeting was also said by Mrs Carne to comprise part of her induction. Under cross-examination Mrs Carne agreed that the meeting was held at Mr Lavigne’s home. Mrs Carne also agreed that Mr Lavigne requested her to attend but maintained that she viewed this as a direction. Mr Lavigne said that he often held business meetings at his home but agreed that he did not tell Ms Shipway that he was meeting privately with Mrs Carne and did not seek Board approval for the meeting. Mr Lavigne also agreed that he wrote his statement after reading Mrs Carne’s Form F2 Application for an unfair dismissal remedy.

[35] Mrs Carne said that she was “required” to attend a meeting that was to be hosted by the Institute for Urban Indigenous Health (IUIH) on 12 December 2013. Mrs Carne’s evidence was that she it was for the purposes of a handover so that she could “hit the ground running”. Mrs Carne said that she declined to attend the meeting.

Consideration

[36] I do not accept that Mrs Carne was directed to attend a meeting with the Board of Yulu-Buri-Ba on 27 November 2013. There is nothing unusual about an incoming CEO being requested to meet the Board prior to the commencement of employment for the purpose of establishing matters such as the scope of the position of CEO. There is no evidence that there would have been any repercussions for Mrs Carne if she was not able to attend due to other commitments which she may have had.

[37] Prior to the meeting, Mrs Carne had indicated that she would not be in a position to commence working for Yulu-Burri-Ba until 17 December 2013 because she was serving out her notice period with her current employer until 13 December 2013. This had been accepted by Ms Blackman on behalf of the Organisation. There is no evidence that Mrs Carne attended that meeting on any other basis than that which had been agreed between Mrs Carne and Ms Blackman on 21 November 2013 when Ms Blackman agreed that Mrs Carne would start employment on 17 December 2013.

[38] In particular, there is no evidence that attendance at the meeting was intended to create a contractual relationship on an earlier date than that which had been agreed between the parties prior to Mrs Carne’s attendance at the meeting. To the contrary, after that meeting, Mrs Carne rejected a request to start earlier than 17 December 2013 and gave as a reason that she would be working out her notice period with her then employer until 13 December 2013. This is not consistent with Mrs Carne being amenable to any form of direction by the Board of Yulu-Buri-Ba or any of its members in relation to attendance at the meeting of 27 November 2013.

[39] An objective assessment of the state of affairs between the parties as at 27 November 2013 is such that it cannot be said that they intended to create legal relations by virtue of Mrs Carne’s attendance at a meeting with the Board. The same can be said of the QHAIC Conference attendance on 28 November 2013. I do not accept that Mrs Carne was required to attend this conference and her subsequent email of 6 December 2013 stating her inability to commence employment prior to 17 December is inconsistent with her assertion that her employment relationship existed before 17 December 2013.

[40] At best, Mrs Carne attended the conference voluntarily at the suggestion of Board members of Yulu-Burri-Ba. There is nothing unusual about such an attendance in circumstances where Mrs Carne was to take up the role of CEO of Yulu-Burri-Ba in the near future. I accept that while she was at the Conference, Mrs Carne was referred to by Ms Shipway and Mr Levinge as ‘our new CEO’. Ms Shipway accepts in her evidence that she did use that term but clarified this by stating:

“I said that she was going to be our new chief executive officer. I don’t recall saying to her that she had had her first day as chief executive officer.” 18

[41] Given the context in which the reference was made, the fact that Ms Shipway and Mr Lavigne referred to Mrs Carne as the new CEO, does not convert Mrs Carne’s voluntary attendance at the conference to employment or her status as a voluntary attendee to that of an employee. I do not accept that the use of this statement evidences an intention on the part of the Respondent to create contractual relations commencing that day. This is especially so given that by 21 November the parties had settled on a commencement date of 17 December 2013 at Mrs Carne’s request.

[42] I do not accept that the discussion that Mrs Carne had in relation to the provision of diabetic retinopathy eye screening while at the Conference was a direction that she negotiate on behalf of the Board. On any view, Ms Shipway asked Mrs Carne to discuss the matter with another attendee. There is no evidence that Mrs Carne had any authority to commit the Board to expenditure in relation to this matter.

[43] That Mr Lavigne offered to pay Mrs Carne for her time in attending the Conference is not an indication of an intention to create a contractual relationship. Payment is not fatal to a finding that a person is a volunteer. In any event, the payment was not approved by the Board and was never made. There is no evidence that Mr Lavigne had the authority to make such a commitment unilaterally.

[44] While I accept that Mr Levinge was a Director of the Board of the Respondent and the Board Treasurer, it does not necessarily follow that Mr Levinge had the capacity to act on behalf of the Respondent by requiring Mrs Carne to attend a meeting on 30 November 2013. Mr Lavigne did not seek approval from Board in relation to the meeting and there is no evidence that the Board was aware of the meeting. Ms Shipway’s evidence is that she was not aware of this meeting, 19 and Mr Levigne stated that he did not inform the Board that he had requested Mrs Carne to attend the meeting.

[45] The meeting occurred at Mr Levinge’s private residence. While I accept that there was some discussion about Yulu-Burri-Ba and its affairs, I cannot conclude that such a meeting evidences an intention to create contractual relations between the Organisation and Mrs Carne on the date it occurred. It is more probable that this meeting was an informal discussion between two persons who were soon to be work colleagues where Mr Levinge expressed his concerns about the Organisation. Why Mr Levigne would conduct such a meeting without the knowledge of the other members of the Board, and within a three day period of Mrs Carne meeting the entire Board, was not explained.

[46] An objective assessment of the state of affairs between the parties as at 30 November 2013, in particular that the Board of Yulu-Burri-Ba had no knowledge of the meeting between Mr Levigne and Mrs Carne, evidences that there was no intention to create contractual relations, other than from the agreed date of 17 December 2013.

[47] The evidence about the handover meeting between Mrs Carne and Ms Blackman makes it clear that Mrs Carne’s attendance was voluntary and that she was not directed by Ms Blackman to attend. Rather Ms Blackman requested Mrs Carne to advise whether she was available to attend such a meeting. This exchange and engagement is not evidence of an intention to create contractual relations prior to December 2013..

[48] A significant factor is that Mrs Carne at all times indicated that she could not commence employment with Yulu-Burri-Ba until 17 December 2013, principally because she was required to work out her notice period with her previous employer. Despite Mrs Carne’s insistence that that the reason she could not start until 17 December 2013 was because she was caring for her son who was convalescing following surgery, I do not accept that this was the reason for her choice of 17 December 2013 as the date on which her employment would commence.

[49] The email exchange in relation to the start date, considered in the context of the matter as a whole, leads to a conclusion that Mrs Carne did not intend to create a contractual relationship with Yulu-Burri-Ba prior to prior to 17 December 2013.

[50] I do not accept Mrs Carne’s submission that the attendances of 27, 28 and 30 November were part of an induction process and as such evidenced an intention to create a contractual relationship at the time the activities were undertaken. There is no evidence that Mrs Carne was directed or required to attend any of the activities. The documentary evidence before the Commission indicates that Mrs Carne’s attendance at the meetings was requested and seen as desirable by the Board members with whom Mrs Carne was dealing, on the basis of their Agreement that her employment would commence on 17 December 2013.

[51] If Mrs Carne understood otherwise I can find no reasonable basis for such an understanding. While I accept that Mr Levinge may also have considered that these attendances formed part of Mrs Carne’s induction, I do not consider that Mr Levinge’s understanding is synonymous with the intention of Yulu-Burri-Ba. I also note that on Mrs Carne’s own evidence, she participated in an orientation with Ms Jenny Cummings on 20 December 2013, after the disputed commencement date of 17 December 2013. 20

Conclusion

[52] Where Yulu-Burri-Ba raises a jurisdictional objection in a matter, and the onus is on Yulu-Burri-Ba to satisfy the Commission of its case. 21 As Yulu-Burri-Ba has all the information relating to its objection and it needs to lead evidence to demonstrate its case on the on the balance of probabilities.22

[53] The starting point of this matter is that the contract of employment between the parties commenced on 17 December 2013 in accordance with the very clear terms of the contract. Mrs Carne relies upon prior attendances at a series of meetings and a Conference, at the request of the Board of Yulu-Burri-Ba to evidence that the contract, despite its terms, commenced operation earlier than 17 December 2013. I am not satisfied that this is the case.

[54] The evidence establishes that Yulu-Burri-Ba was eager for the Mrs Carne to commence employment as soon as possible. The evidence also establishes that Mrs Carne was steadfast in her view that employment could not commence until 17 December 2013; after she had worked out her notice period with her former employer.

[55] I also find on the evidence that any attendance prior to this date was voluntary on the part of the Mrs Carne. Any indicator that would ordinarily point to an employment relationship - for example discussion about remuneration for the conference on 30 November 2013 - is outweighed by the remainder of the evidence and in any event, in all of the circumstances of this case, does not indicate an intention to create contractual relations commencing at an earlier date than 17 December 2013.

[56] I find that Mrs Carne’s employment commenced on 17 December 2013. Mrs Carne was dismissed on 13 June 2014. In order to have completed the minimum employment period, Mrs Carne needed to remain in employment until 16 June 2014. Mrs Carne was not an employee who had completed a period of employment with her employer of at least the minimum employment period and was not a person protected from unfair dismissal at the time of her dismissal. In the circumstances it is not necessary to decide whether the engagements were discrete engagements and whether they formed part of Mrs Carne’s continuous service with Yulu-Burri-Ba.

[57] The Commission has no jurisdiction to deal with the application and it must be dismissed. An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

 1   Acts Interpretation Act 1901 (Cth) s. 2G.

 2   Wilkinson v Skippers Aviation Pty Ltd (unreported, AIRCFB, McIntyre VP Cartwright SDP and Harrison C, 30 April 2001 at [31]; Prigge v Manheim Fowles Pty Ltd [2010] FWA 28 (unreported Richards SDP, 7 January 2010, [14].

 3   Respondent’s written submissions as to jurisdictional objection at paragraph 18.

 4 [2002] HCA 8; (2002) 209 CLR 95.

 5   Ibid at [24] to [25].

 6   Respondent’s written submissions as to jurisdictional objection at paragraph 18 referring to Shahid v The Australasian College of Dermatology Ltd [2007] FCA 693 at [303] per Nicholson J.

 7   Statement of Renee Blackman at RB-4.

 8   Ibid at RB-3.

 9   Ibid at RB-4.

 10   Ibid at RB-4.

 11   Ibid at RB-5.

 12   Ibid at RB-5.

 13   Statement of Lynette Shipway at paragraph 11.

 14   Applicant’s written submission as to jurisdictional objection at paragraph 3.

 15   Ibid at paragraph 15.

 16   Ibid at paragraph 15.

 17   Ibid at paragraph 16.

 18   Statement of Lynette Shipway at paragraph 13.

 19   Ibid at paragraph 14.

 20   Applicant’s written submission as to jurisdictional objection at paragraph 6.

 21   Crema and Others v Abigroup Contractors[2012] FWA 5322, Commissioner Cribb, at [81].

 22  See for example Govinda Prasad Dhungel v The Baking Company Australia Pty Ltd[2012] FWA 4717, Deputy President Sams; Eva v Victorian Radio Network Pty Ltd [2007] AIRC 814, Commissioner Eames.

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