Julian Barbi v Sunnyhaven Ltd

[2015] FWC 224

[2015] FWC 224

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Julian Barbi
v
Sunnyhaven Ltd
(U2014/12336)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 12 JANUARY 2015

Application for relief from unfair dismissal.

[1] I heard this application in Sydney on 6 November 2014. Sunnyhaven Disability Services Pty Ltd (Sunnyhaven) objected to the application lodged by Mr Barbi alleging that he had not served the minimum period of employment required by sections 382 and 384 of the Fair Work Act 2009 (the Act) which are set out 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

(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.

Note: High income threshold indexed to $133,000 from 1 July 2014

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.

[2] Having considered the relevant provisions of the Act I granted permission to both parties to be legally represented.

[3] The applicant worked as a casual employee between 3 February and 28 February 2014. He performed direct support work and sleepover work. He was then offered a contract as a permanent employee commencing 3 March 2014. That contract of employment was terminated on 15 August 2014.

[4] If his period of casual employment is included in his employment period for the purposes of his application, Mr Barbi has completed the minimum employment period of six months, entitling him to conduct an application for an unfair dismissal remedy pursuant to the Act. If his period of casual employment is excluded, the applicant is excluded from the jurisdiction of the Fair Work Commission (Commission).

[5] Mr Barbi provided a statement 1 and Submissions.2 Sunnyhaven provided a statement from Maree Mullins, Chief Executive Officer.3

[6] The basis of Sunnyhaven’s objection was that the period of casual employment was too short to have established regular and systematic employment. The length of time is not determinative. It is a matter to be decided on the facts in each case. In this case I was persuaded that Mr Barbi was offered work whenever it was available because Sunnyhaven knew that Mr Barbi was available and wanted to work. I was satisfied that it was not occasional or irregular, it was regular and systematic employment, even though the period involved was short. It was for this reason that I issued my Finding and Order. 4

SENIOR DEPUTY PRESIDENT

 1   Exhibit Barbi 1.

 2   Exhibit Barbi 2.

 3   Exhibit Sunnyhaven 1.

 4   PR559050.

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