Juli Dablan v Grewal and Sidhu Pty Ltd T/A Café Saffron Authentic Indian Cuisine

[2015] FWC 4213

[2015] FWC 4213

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Juli Dablan
v
Grewal and Sidhu Pty Ltd T/A Café Saffron Authentic Indian Cuisine
(U2014/15965)

COMMISSIONER MCKENNA SYDNEY, 23 JUNE 2015

Application for relief from unfair dismissal.

[1] On 15 December 2014, Juli Dablan (“the applicant”) lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (“the Act”). The respondent to the application is Grewal and Sidhu Pty Ltd trading as Café Saffron Authentic Indian Cuisine (“the respondent”).

[2] The respondent, which is a small business within the meaning of the Act, has raised a threshold objection to the application contending the applicant had not met the minimum employment period and otherwise objecting to the application on the basis it was out of time.

[3] As the materials before the Commission and the submissions in proceedings have indicated, there are contested factual circumstances about what occurred in relation to the termination of employment. While there are contested factual circumstances, the matter may be determined in favour of the respondent’s jurisdictional objection even if the matters in applicant’s materials and submissions were accepted at their highest and the (contested) matters in the respondent’s materials and submissions were not accepted.

[4] The applicant commenced employment on or about 1, 2 or 3 December 2013. The applicant was a regular and systematically-employed casual and, absent any other considerations, it seems she would have had an expectation she would continue to be employed on regular and systematic basis to the date, it is common ground, the applicant was last rostered to work at the café, namely, 23 November 2014. There is dispute between the parties as to what, precisely, was said in a conversation that day between the applicant and the proprietor, Parwinder Singh.

[5] In the initiating process, the applicant indicated that on 23 November 2014, the respondent’s proprietor informed the applicant that the business was losing money and could barely stay afloat. The initiating process indicated that the proprietor asked the applicant if she would be on call for two to three weeks and that he would get back to the applicant “on or if it picks up for Christmas.” The initiating process further indicated that she agreed to be on call, to be available on one day’s notice. The applicant “heard through the grapevine a replacement kitchen hand was in the kitchen the following day”. In this regard, the applicant also wrote in the initiating process “I think my boss tried to make me redundant and giving no cause in ceasing my employment by putting me on call and saying he will call me in three weeks so he can avoid any disputes by having no formal complaints within 21 days since he had no cause to dismiss me” for performance-related reasons and she otherwise assumed the respondent’s proprietor was not lying in stating she was being “given a few weeks off.”

[6] There were two Forms F3 (Employer Response to Unfair Dismissal Application) on the file as reallocated to me, with some information that was, as between those documents, internally contradictory and/or plainly incorrect as to certain dates. Both the Forms F3 alleged certain issues of a performance-type nature but, relevantly so far as the threshold minimum employment period issue is concerned, the second Form F3 - broadly consistently with was had been described in the applicant’s initiating process - also indicated that on 23 November 2014 there was a conversation in which the respondent’s proprietor “talked about how quiet it was, and would ring her more towards Christmas”.

[7] The application was formerly allocated to another member of the Commission who forwarded correspondence to the applicant dated 20 March 2015, seeking a written statement from her. In that regard, the applicant lodged a statement which read in part:

“10. On or about 9 November 2014, the Respondent started telling me that the business was going bust and that he needed to cut costs as much as he could. We would have these conversations when we were alone and I was locking up.

11. On 23 November 2014, the Respondent told me at the end of my shift that he needed to put me on call because it had been quiet and the shop would shut and nobody would have a job prior to Christmas if I didn’t sacrifice my shifts. The Respondent said that he and [the chef Vikas Kalra] would be doing my job and that he would text me the day before if he needed me to come in and work.

12. On or about 7 December 2014 I found out that the Respondent had hired two (2) new dish-hands.

13. One (1) dish-hand started working on 24 November 2014 and was working the Sunday, Monday and Tuesday shifts that I regularly worked.

14. I then got suspicious of my rights and why I was put on call for three (3) weeks.

15. On 15 December, I got NORTEC to call the Respondent about my employment and that is when I found out that I had been dismissed.”

[8] Further to the reallocation of the file, I initially listed the matter for proceedings by telephone (the parties are Lismore-based). The respondent was given an extended period of time to 9 June 2015 to file material in support of its contentions, given matters including the proprietor’s then-impending departure overseas. On 19 May 2015, the respondent filed certain time sheets which are not entirely clear on their face; and advising the applicant was employed on a casual basis from 3 December 2013 to 23 November 2014. The respondent submitted in that document of 19 May 2015 the applicant was informed on 23 November 2014 she would no longer be required (and also referred to certain conversations said to have occurred prior to 23 November 2014) and submitted also the respondent “had no other choice but to let her go at this time”. On 16 June 2015 (later than scheduled), a statement by an employee of the respondent was filed by the respondent. In that statement, the employee indicated he had witnessed a conversation between the respondent’s proprietor and the applicant on 23 November 2014 to the effect that the proprietor had informed the applicant he was not happy with her work, that 23 November 2014 would be the last day of work, that she would not need to come to work again, and that she would receive her outstanding wages in the usual way.

Consideration

[9] Some of the provisions which are relevant to the consideration of the threshold issue are ss.382, 383 and 384, parts of which I extract below:

“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 ...

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 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 ...”

[10] There are some irreconcilable differences between not only the parties’ respective descriptions of events leading to a conversation between them on 23 November 2014 and the content of that conversation, but, I might add, as to matters they have themselves each respectively put before the Commission.

[11] In any event, the applicant commenced her employment on or about 1, 2 or 3 December 2013. The applicant was a regularly rostered casual to 23 November 2014. From the cessation of the applicant’s last shift on 23 November 2014, the applicant was no longer a regularly rostered casual and, even if the matters in the applicant’s case were accepted at their highest as to the conversation on 23 November 2014, she could not be accepted as having been from that date a regularly rostered casual who, relevantly, would have then had any reasonable expectation of regular casual work from on or after 23 November 2014. That is - again accepting the applicant’s case at its highest and, thereby, without any need to determine which of the versions is to be accepted or preferred - the applicant, on her own case, was informed by the proprietor that he and the chef would be doing the job the applicant formerly performed and the proprietor would text her in future if he needed the applicant to come to work. Even on taking the applicant’s own case at its highest, the applicant was thereby informed that she would be contacted by the proprietor on short notice in the future if she was needed after 23 November 2014 as she indicated as follows in her statement of 30 March 2015, an extract of which I again reproduce:

“11. On 23 November 2014, the Respondent told me at the end of my shift that he needed to put me on call because it had been quiet and the shop would shut and nobody would have a job prior to Christmas if I didn’t sacrifice my shifts. The Respondent said that he and [the chef Vikas Kalra] would be doing my job and that he would text me the day before if he needed me to come in and work.”

[12] In the circumstances, I conclude the applicant did not meet a jurisdictional prerequisite for eligibility to make the application. If the termination of employment occurred on 23 November 2014 the applicant did not meet the minimum employment period. Alternatively, even if there was any subsisting employment relationship from on and after 23 November 2014 and a termination of employment was effected on some time after that date (such as 15 December 2014 when the applicant received confirmation from a third party she had been dismissed by the respondent), the applicant could not from on or after 23 November 2014 then otherwise be characterised as an employee with a reasonable expectation of continuing employment by the respondent on a regular and systematic basis - once again even on the applicant’s own case.

[13] On either analysis, the applicant did not meet the minimum employment period and, as such, an order dismissing the application will issue in conjunction with this decision. In those circumstances, it is unnecessary to consider any further whether the application was made within time and, if so, whether an extension of time should be granted.

COMMISSIONER

Final written submissions:

16 June 2015.

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