Kevin Govender v City of Swan

[2012] FWA 5217

[2012] FWA 5217

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kevin Govender
v
City of Swan
(U2012/7054)

COMMISSIONER WILLIAMS PERTH, 27 JUNE 2012

Termination of employment - multiple actions - minimum employment period.

[1] This matter involves an application made by Mr Kevin Govender (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is the City of Swan (the Respondent).

[2] This matter was not the subject of a conciliation conference because the Respondent requested that its jurisdictional objections be determined as preliminary matters.

[3] The Respondent objects to the application because it asserts that the Applicant has made multiple applications and so is statute barred by virtue of section 725 of the Act from making this application. In addition the Respondent asserts that the Applicant was not employed for the relevant minimum qualifying period as prescribed in section 383 of the Act and so under section 382 of the Act is not a person protected from unfair dismissal. Finally the Respondent objected to the application because it has been made outside the 14 day time limit prescribed in section 394 of the Act.

Background facts

[4] Based on the information and the other materials provided by the Applicant and the statutory declaration provided by the Respondent I find the following to be the facts in this matter.

[5] The parties agree that the Applicant’s employment with the Respondent commenced on 31 August 2011.

[6] A letter of termination from the Respondent was delivered by courier to the Applicant’s home address on 29 February 2012 and left in his letter box at 5.30 p.m. that day.

[7] The Applicant was absent from work on sick leave on 29 February 2012

[8] The Applicant says he received this letter of termination on 2 March 2012.

[9] On 2 March 2012 the Applicant filed an unfair dismissal application in the Western Australian Industrial Relations Commission (WAIRC).

[10] The Applicant’s WAIRC application remains on foot, it has not been withdrawn nor has this application failed for want of jurisdiction.

Multiple actions

[11] The legislation prohibits an employee from making more than one application in relation to their dismissal. This general limitation is set out in section 725 of the Act as seen below:

“725 General rule

A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.”

[12] An application filed in the WAIRC in relation to an employee’s dismissal is an application made under another law as set out in section 732 of the Act below:

“732 Applications and complaints under other laws

(1) This section applies if:

(a) an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application or complaint has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction.

(2) An application or complaint under another law is an application or complaint made under:

(a) a law of the Commonwealth (other than this Act); or

(b) a law of a State or Territory.

(3) For the purposes of this Subdivision, if a complaint under the Australian Human Rights Commission Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended.”

[13] In this case the evidence is that the WAIRC application has not been withdrawn nor has it failed for want of jurisdiction.

[14] Given the above by virtue of section 725 of the Act the Applicant is prevented from making this current application to Fair Work Australia and so this application must be dismissed.

The minimum employment period

[15] Section 382 and 383 of the Act together prescribe that a person is not protected from unfair dismissal unless they have completed, in this case, a period of employment of at least six months ending at the earlier of the times being when the person was given notice of the dismissal or immediately before the dismissal.

“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 $118,100 from 1 July 2011

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.”

[16] In this case the evidence is that the Applicant’s employment commenced on 31 August 2011. Consequently a period of employment with the Respondent of at least six months would have ended at midnight on 29 February 2012.

[17] I accept that the letter of termination delivered to the Applicant’s letterbox was done before the end of the last day of this minimum employment period.

[18] However the Applicant says he did not receive the letter that day and in fact did not receive it until 2 March 2012.

[19] Circumstances such as these have been considered previously by the Tribunal and I accept the reasoning of Commissioner Thatcher in Sharkey v Serco Australia Pty Ltd, [2010] FWA 7740, at paragraph 45. Therefore for the purposes of section 383(a) of the Act, the time when the Applicant in this matter was notified of his dismissal was when the termination letter could ordinarily be expected to have been received which was shortly after the courier had delivered the letter at 5.30 p.m. on 29 February 2012. Further, notwithstanding the Applicant had not read the letter, the letter says ‘Your employment will end immediately’ which means the dismissal occurred at the time of writing the letter, well before midnight of 29 February 2012. As section 394(3)(b) expressly acknowledges an employee may first become aware of their dismissal after it had taken effect. Consequently I find that notice of the dismissal was given to the Applicant and the dismissal had taken effect before the 6 month minimum employment period had been completed.

[20] Consequently I uphold the second jurisdictional objection of the Respondent and find that the Applicant was not a person protected from unfair dismissal.

[21] In summary the Applicant is barred from making this application by section 725 of the Act. In any event even if that were not the case the Applicant is not an employee who is protected from unfair dismissal because he has not completed the mandatory minimum six month employment period. Consequently this application cannot proceed further and must now be dismissed.

[22] In the circumstances it is not necessary to consider whether there were exceptional circumstances that would warrant Fair Work Australia extending the time for this application to be made given that it was made well outside the 14 day statutory time limit.

[23] An order dismissing this application will now be issued in conjunction with this decision.

COMMISSIONER

Appearances:

K Govender on his own behalf.

K Reid, Solicitor for the Respondent.

Hearing details:

2012.
Perth:
June 5.

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