Kathleen Simpson v Fedorov Family Lawyers Pty Ltd ATF the FFL Unit Trust T/A Fedorov Lawyers

[2016] FWC 6786

[2016] FWC 6786

FAIR WORK COMMISSION

DECISION

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

Kathleen Simpson
v
Fedorov Family Lawyers Pty Ltd ATF The FFL Unit Trust T/A Fedorov Lawyers
(U2016/8262)

COMMISSIONER HUNT BRISBANE, 5 OCTOBER 2016

Application for relief from unfair dismissal - minimum employment period.

[1] Ms Kathleen Simpson has applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to her dismissal by Fedorov Family Lawyers Pty Ltd ATF The FFL Unit Trust T/A Fedorov Lawyers (Fedorov Lawyers).

[2] Fedorov Lawyers objected to the Fair Work Commission (the Commission) dealing with the application on the basis that Ms Simpson does not meet the minimum employment period.

[3] Ms Simpson’s commencement date with Fedorov Lawyers is in dispute. Ms Simpson contends she commenced employment on 19 June 2015. Fedorov Lawyers contends Ms Simpson commenced on 22 June 2015.

[4] It is not disputed that Ms Simpson’s employment was terminated at approximately 8:45am on 21 June 2016 and that her dismissal took immediate effect.

[5] It is not in dispute that Fedorov Lawyers employs less than 15 employees and therefore Ms Simpson must meet a minimum employment period of one year.

[6] The purpose of this Decision is to consider whether Ms Simpson would meet the minimum employment period if she commenced employment with Fedorov Lawyers on 22 June 2015.

[7] Part 3-2 Division 2 of the Act relevantly sets out the criteria for protection from unfair dismissal, and provides as follows:

‘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.

….”

[8] In determining whether Ms Simpson has served the minimum employment period, no assessment has been made about the merits of the case. The Commission has no discretion to waive the period of time requirement in s.382(a) of the Act.

[9] In calculating the minimum employment period, reference to the relevant provisions of the Acts Interpretation Act 1901 is necessary. The application of the Acts Interpretation Act to the Act is referred to at s.40A of the Act, which provides:

‘Application of the Acts Interpretation Act 1901

40A(1) The Acts Interpretation Act 1901, as in force on 25 June 2009, applies to this Act.

40A(2) Amendments of the Acts Interpretation Act 1901 made after that day do not apply to this Act.’

[10] As at 25 June 2009, s.22(1) of the Acts Interpretation Act 1901 provided:

22(1) Meaning of certain words

…

(c) Month shall mean calendar month;

…

(g) Calendar month means a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month.’

[11] Section 2 of the Acts Interpretation Act1901 states:

‘2 Application of Act

(1) Except so far as the contrary intention appears, this Act applies to all Acts, including this Act.’

[12] With no contrary intention appearing in the Act, “one year ending at that time” in s.383(b) means 12 calendar months; being, a period commencing at the beginning 22 June 2015 and ending immediately before the beginning of the corresponding day of the following twelfth month, being midnight between 21 and 22 June 2016; effectively 23:59:59 on 21 June 2016.

[13] In Mr Ryan Prigge v Manheim Fowles Pty Ltd 1, Richards SDP dealt with a similar situation and considered the authority in Wilkinson v Skippers Aviation Pty Ltd2 on the calculation of a “month”. His Honour found as follows:

‘[8] In the current circumstances, however, there is no dispute between the parties as to the relevant dates: the Applicant’s employment commenced on 26 February 2009 and was terminated by notice and given effect at the same time on 25 August 2009.’

WAS THE APPLICANT TERMINATED WITHIN THE MINIMUM PERIOD OF EMPLOYMENT?

[9] The Applicant contends that the minimum period of employment was completed on 25 August 2009 (when he was terminated at 9.00am that day and paid 1 week’s salary in lieu of notice).

[10] The Full Bench in Wilkinson v Skippers Aviation Pty Ltd considered (amongst other matters) the calculation of the 3 month probationary period under the Workplace Relations Act 1996. In so considering how 3 months was to be interpreted, the Full Bench found as follows:

[33] Accordingly, no contrary intention in our view appearing, “3 months” in reg.30B(1)(c)(i) means 3 calendar months; that is, a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the third month following.

[34] If, therefore, a period of probation which commenced on 7 January 2000 was to be of 3 months or less it had, in our view, to end no later than immediately before the beginning of 7 April 2000. If it ended later than this, it was a period of more than 3 months and, pursuant to reg.30B(1)(c)(ii), a determination would have to be made whether the period was reasonable, having regard to the nature and circumstances of the employment.’ (emphasis added)

[11] I see no reason why the reasoning of the Full Bench should not apply to a minimum period of employment as stipulated at s.383 of the FW Act. Section 22(1)(b) and (g) of the Acts Interpretation Act 1901 applies to the calculation of the minimum period of employment as it applies to any other similar such statutory time period, where no contrary intention is evidence.

[12] On the Full Bench’s reasoning, the minimum period of employment must be completed “immediately before the beginning of” 26 August 2009, which is “immediately before the beginning of the corresponding day of the sixth month following the date on which the Applicant’s employment commenced.

[13] In the case before me, the Applicant’s employment was terminated at 9.00am on 25 August 2009.

[14] It cannot be found, therefore, that the Applicant had completed the minimum period of employment. This is because the Applicant, until midnight on 25 August 2009, was still within, or was still to complete the minimum period of employment, which must be taken to be the point in time which is “immediately before the beginning of” 26 August 2009.’ (emphasis added)

[14] In Roberts v JBS Australia Pty Ltd 3, Gooley DP considered whether the minimum employment period of six months was met where the employee commenced on 29 May 2014 and was dismissed on 28 November 2014. The Deputy President found as follows:

‘[10] As Mr Roberts commenced employment on 29 May 2014, the six months ended at midnight on 28 November 2014. As Mr Roberts was not employed at this time he had not served the minimum employment period.

[11] As a consequence at the time of his dismissal, Mr Roberts was not protected from unfair dismissal and his application must be dismissed.’

[15] In Senaratne v King & Wood Mallesons 4 a Full Bench of the Commission considered whether Gooley DP had erred in dismissing an application where the applicant did not meet the 6 month minimum employment period. The applicant had commenced employment on 2 February 2015 and was dismissed, with immediate effect, on 31 July 2015. In dismissing the appeal, the Full Bench stated as follows:

‘Grounds of appeal

…

[25] No argument is taken with the Deputy President’s conclusion that the Commission was without jurisdiction to deal with the application as the minimum employment period had not been completed. Ms Senaratne accepts that she was given notice of her termination on 31 July 2015, 8 [sic] and that pursuant to the Acts Interpretation Act 1901 the 6 month period expired at midnight on 1 August 2015.

Conclusion

[26] It cannot therefore be found, that Ms Senaratne had completed the minimum period of employment. This is because Ms Senaratne, until midnight on 31 July 2015, the day on which she was given notice of her termination was still within, or was still to complete the minimum period of employment, which must be taken to be 1 August 2015. (emphasis added)

[16] On 8 September 2016, I wrote to the parties expressing a preliminary view that, in consideration of Senaratne, even if Ms Simpson was employed from 22 June 2015 and dismissed on 21 June 2016, the minimum employment period may still have been met.

[17] Fedorov Lawyers, in its submissions in reply to my preliminary view, submitted thatin Senaratne at [25], the Full Bench of the Commission in fact held that for the employee in question whose employment commenced on 2 February 2015, the minimum employment period did not expire until ‘midnight on 1 August 2015’. That is until midnight immediately prior to the commencement of the day that was the employee’s 6 month anniversary. (original emphasis)

[18] Fedorov Lawyers submits that the reference to midnight on 31 July 2015 in [26] of Senaratne is ambiguous and is inconsistent with:

(a) the clear conclusions of the Full Bench at [25];
(b) the conclusion reached by Gooley DP at first instance; and

(c) the prevailing line of authorities which consider when the minimum employment period is completed

[19] I have taken into consideration the submissions of both parties and the previous authorities on this matter. I agree with the submission of Fedorov Lawyers, that the reference to midnight 31 July 2015 in [26] of Senaratne is ambiguous.

[20] In my view, the Full Bench in Senaratne at [26] concluded that the employee was still to complete the minimum employment period on the date of the dismissal (i.e. 31 July 2015), and that the minimum employment period would not have been met unless the employee had been employed until at least midnight between 1 August 2015 and 2 August 2015.

[21] In the present case, if Ms Simpson was employed from 22 June 2015, and dismissed at 8:45am on 21 June 2016, Ms Simpson would not have served the minimum employment period. In accordance with the legislation and relevant authorities above, Ms Simpson, until midnight between 21 June 2016 and 22 June 2016, was still within or still to complete the minimum employment period.

[22] Ms Simpson had not completed a period of employment of at least one year. To have completed a period of at least one year, Ms Simpson would need to have been employed at 23:59:59 on 21 June 2016. She was not.

[23] As there remain contested facts in relation to whether Ms Simpson commenced on 19 June 2015 or 22 June 2015, in accordance with s.397 of the Act, it is necessary to conduct a hearing. If Ms Simpson was employed from 19 June 2015, it follows that Ms Simpson would have served the minimum employment period. If Ms Simpson commenced employment on 22 June 2015 her application must be dismissed for want of jurisdiction.

[24] A notice of listing will be issued for hearing and determination of the factual dispute regarding Ms Simpson’s commencement date.

COMMISSIONER

 1   [2010] FWA 28

 2   PR903635 [2001]

 3   [2015] FWC 1882

 4   [2016] FWCFB 420

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