Keegan Thomas v Precision Installs

[2019] FWC 5224

[2019] FWC 5224

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Keegan Thomas
v
Precision Installs
(U2019/5868)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 JULY 2019

Application for an unfair dismissal remedy.

[1] On 28 May 2019, Mr Keegan Thomas made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Thomas advised that he commenced employment with Precision Installs on 7 January 2019 and that he was notified of his dismissal on 8 May 2019 with the dismissal taking effect the following day on 9 May 2019.

[3] On 6 June 2019, the Commission attempted to telephone Mr Thomas but he was unable to be contacted. Subsequently, correspondence was sent to Mr Thomas by email to his nominated email address advising that his Form F2 indicated he had not been employed for the minimum employment period required under the Act. The correspondence directed Mr Thomas to file in the Commission within 14 days any documents or evidence to support his claim of having served the minimum employment period.

[4] At 3.36pm on 6 June 2019, the Commission received email correspondence from Mr Thomas in reply which stated:

“Regarding the 6 month approval for a unfair dismissal form. I have completed my apprenticeship through precision from July 2015 to November 2018. I was contracted to skillinvest who sent me out to precision to work.

I was then offered a contract by precision to join them in January 2019.”

[5] On 11 June 2019, Precision Installs Pty Ltd (Precision Installs) filed a Form F3 – Employer response to unfair dismissal application (Form F3). It raised the jurisdictional objection that Mr Thomas’ employment did not meet the minimum employment period. In the Form F3, Precision Installs submitted that Mr Thomas was employed by another entity called Skills for his apprenticeship and started employment with Precision Installs on 15 January 2019. It also outlined that it notified Mr Thomas of his dismissal on 8 May 2019 and it took effect that same day.

[6] While the matter was firstly listed for conciliation, it was subsequently determined that it should be listed for a Jurisdiction (Minimum Employment Period) Conference /Hearing at 9.30am on 26 July 2019.

[7] On 10 July 2019 and 18 July 2019, the parties were sent Notices of Listing for the Jurisdiction (Minimum Employment Period) Conference /Hearing. On both occasions, the Notices of Listing were sent to Mr Thomas’ nominated email address. The Commission’s records do not disclose that either Notice was not received by Mr Thomas (i.e: there were no return emails suggesting the Notices of Listing were undeliverable to the nominated email address of Mr Thomas).

[8] A telephone call was made to Mr Thomas on 11 July 2019, explaining that the matter was listed for a hearing to determine the jurisdictional objection and there was a direction that he file his material.

[9] The Notice of Listing sent to the parties on 18 July 2019 directed Precision Installs files and serve its materials by no later than noon on 19 July 2019. This direction was complied with.

[10] In the case of Mr Thomas, he was directed to file and serve his Outline of Argument, Statement(s) of Evidence and Document List by no later than noon on 24 July 2019. When this direction was not complied with, the Commission attempted to make contact with Mr Thomas by telephone at 4.52pm on that day. There was no response and no voicemail message could be left.

[11] A further email was sent to the parties on 25 July 2019 advising that the Jurisdiction (Minimum Employment Period) Conference /Hearing would be proceeding at 9.30am on 26 July 2019 and that Mr Thomas was required to attend.

[12] At 8.18am on 26 July 2019, Mr Thomas sent an email from his nominated email address to my Chambers. It stated:

“Hi there

I’m sorry about the late notice but I am unable to attend due to working and other commitments today. I’d like a change of dates and also to know why I have to go see you guys about something I’ve already explained and you accepted.

Best regards

Keegan Thomas”

[13] At this stage, Mr Thomas had been notified on four occasions that the Conference /Hearing would be proceeding at 9.30am on Friday 26 July 2019. He had also been directed to file and serve his material in relation to the jurisdictional objection. It is clear that while Mr Thomas knew the date and time of the Conference /Hearing, he failed to advise of his unavailability until the the morning of it. I determined Mr Thomas had behaved unreasonably by failing firstly to communicate and then attend. I determined the matter should proceed as listed via a Determinative Conference.

Precision Install Submissions

[14] In Precision Install’s Outline of Argument, it submitted:

a) Mr Thomas started working with Precision Installs on 15 January 2019;

b) It gave Mr Thomas notice of his dismissal on 8 May 2019;

c) the dismissal took effect on 9 May 2019;

d) Mr Thomas was employed by it for 113 days; and

e) It had 16 employees at the time Mr Thomas was dismissed

[15] Precision Install also submitted that prior to beginning his employment with it on 15 January 2019, Mr Thomas had been employed by “Skills”. It submitted Mr Thomas was paid by Skills and had his superannuation and tax paid by Skills.

[16] At the Determinative Conference, Mr Feehan explained the nature of the relationship between Skillinvest and Precision Installs. He said Skillinvest is a labour hire company employing apprentices and it offers companies such as Precision Installs the opportunity to host apprentices during the term of an apprenticeship. Mr Feehan said Mr Thomas was such an apprentice and that during his apprenticeship, Skillinvest paid his:

•  Wages;

•  Superannuation;

•  Overtime;

•  Workcover; and

•  Leave entitlements.

[17] Mr Feehan also said that during the period of Mr Thomas’ apprenticeship, there was a three month period during which Mr Thomas was not engaged in work with Precision Installs. He further stated that Skillinvest is a completely different corporate entity to Precision Installs.

[18] I conducted a search of the website of Skillinvest. Amongst other things, it states:

What is an apprenticeship/ traineeship?

An Apprenticeship or Traineeship combines practical work experience, a paid job and nationally accredited training in one simple package. Apprenticeships generally last four years and cover traditional trades such as building and construction, electrical, automotive, engineering, manufacturing, hairdressing and cooking. Traineeships last between one and two years and cover a much wider range of occupations including agriculture, business and leadership.

Am I eligible?

Anyone of legal working age, whether they are school leavers or mature-age people wanting to change careers or re-enter the workforce, can apply for an apprenticeship or traineeship.

Why Skillinvest?

A Skillinvest apprenticeship or traineeship will place you with a local business, where you will receive hands-on practical training, work experience, and personalised career advice and support, all while completing a nationally recognised course and getting paid as you learn!

You will be employed by Skillinvest under a training contract – not by the employer/ host business. This means that we’ll do all the hard work to find and place you with a business and will manage everything for the entire duration and to the completion of your apprenticeship/ traineeship.

Our host employers include a mix of small and large sized businesses, local government, government agencies and departments, statutory authorities, not-for-profit organisations, national and multinational companies.

Benefits

•  Get paid while completing your training, which can be done on and off-the-job site, or a combination of both.

•  All our training meets industry requirements and gives you a nationally recognised and accredited qualification.

•  Training is competency or skills-based, so you can complete it faster and once you reach the required level.

•  Course credits can be granted for past experience and existing skills, potentially reducing your total training time.

•  Melbourne Apprenticeships and Traineeships as well as regional apprenticeships and traineeships can be shared between multiple employers, giving you a wide range of work experience.

•  As your legal employer, Skillinvest provides a secure way to take up an apprenticeship or traineeship and will look out for your best interests.

•  You will be assigned one of our Apprenticeship Consultants who will monitor your progress, and ensure you are in a safe environment.

•  Your dedicated Apprenticeship Consultant will provide ongoing support throughout the duration to handle any problems that may arise. 1(my emphasis)

[19] Precision Installs filed an email from Ms Linda Loft, Senior Payroll Officer for Skillinvest, dated 18 July 2019. 2 This states:

“Please note that according to our records, Keegan Thomas was employed by Skillinvest as an apprentice and was Hosted to Precision Installs for the period 22/06/2015 until 14/01/2019.”

[20] Precision Installs also produced payslips for Mr Thomas for the period 15 January 2019-9 May 2019 (inclusive). These indicate that in the 2018/2019 financial year, Mr Thomas was not paid by Precision Installs prior to 15 January 2019. 3

[21] Further, Precision Installs filed a copy of an employment agreement with Mr Thomas dated 8 January 2019 that stated Mr Thomas would commence employment with Precision Installs on 15 January 2019. 4

[22] Finally, Precision Installs filed a copy of the letter it gave Mr Thomas giving notice that it was terminating his employment, effective 8 May 2019. 5

Consideration

[23] Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.

[24] Section 383 of the Act sets out the minimum employment period:

“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.”

[25] I have had regard to the email Mr Thomas sent to the Commission on 6 June 2019 referred to above at [4]. I have also had regard to the evidence of Mr Feehan, the material filed by Precision Installs and the information regarding Skillinvest (referred to above at [18]). Having regard to all this material and evidence, I am satisfied in all the circumstances of this case, that while Mr Thomas was hosted by Precision Installs prior to 15 January 2019 during his apprenticeship, he was not employed by it during that time. Mr Thomas did not commence employment with Precision Installs until 15 January 2019 and having been terminated with effect on 8 May 2019, did not complete the required minimum employment period with Precision Installs in order to become a person protected from unfair dismissal.

[26] As such, I am satisfied that Mr Thomas’ unfair dismissal application has no reasonable prospects of success. The unfair dismissal application of Mr Thomas is therefore dismissed pursuant to s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Appearances:

Mr Clint Feehan, for Precision Installs.

Hearing details:

2019.

Melbourne.

26 July.

Printed by authority of the Commonwealth Government Printer

<PR710748>

 1     Exhibit R7.

 3   Exhibit R2.

 4   Exhibit R1.

 5   Exhibit R6.