Laurissa Anneka Lockett v The Trustee for the Best Realty Unit Trust
[2022] FWC 2253
•26 AUGUST 2022
| [2022] FWC 2253 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Laurissa Anneka Lockett
v
The Trustee For The Best Realty Unit Trust
(U2022/3618)
| COMMISSIONER SCHNEIDER | PERTH, 26 AUGUST 2022 |
Application for an unfair dismissal remedy
On 25 March 2022, an application was made by Ms Laurissa Lockett (Ms Lockett or the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against The Trustee For The Best Realty Unit Trust (360 Real Estate) (the Respondent).
In the F3 Employer Response Form the Respondent recorded that it had a jurisdictional objection, namely that the Applicant had not served the minimum employment period as required under section 382(a) of the Act.
Legislation
The initial matter to be dealt with in this application is whether the Applicant is a person who is protected from unfair dismissal, having regard to the minimum employment period under the Act. The relevant statutory provisions are sections 382, 383, and 384 of the Act. Those sections, in part, read:
“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) …”
“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. …”
Section 22 of the Act provides the definitions of ‘service’ and ‘continuous service’. That section reads:
“22 Meanings of service and continuous service
General meaning
(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).
(2) The following periods do not count as service:
(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised absence, other than:
(i) a period of absence under Division 8 of Part 2‑2 (which deals with community service leave); or
(ii) a period of stand down under Part 3‑5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or
(iii) a period of leave or absence of a kind prescribed by the regulations;
(c) any other period of a kind prescribed by the regulations.
An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.
(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly. …”.
Background and Submissions
There are three periods of service in dispute between the parties. The parties’ submissions and evidence are brief, below is a summary the materials submitted.
The Applicant provided submissions regarding her service as a casual and contends she was regular, systematic, and ongoing. She also provided submissions regarding the contentious periods of service and adduced evidence of correspondence with clients and the Respondent which she submits shows she was not on leave.
The Respondent did not provide any substantial written submissions on the objection. Regarding the period of casual employment, the Respondent merely submits that the Applicant was casual until her employment was transferred to a full-time contract. The Respondent provided brief submissions regarding the contentious periods of service and adduced payroll data and evidence of correspondence with the Applicant. The Respondent submits that its evidence shows two distinct periods in which the Applicant was on leave or did not complete work.
The Applicant commenced employment with the Respondent on 10 March 2021 as a casual business development manager. On 1 July 2021, the Applicant signed a contract of employment with the Respondent and commenced a new position with the Respondent as a Sales Representative. The Applicant was engaged on a permanent part time basis and as per the contract of employment the Applicant was required to work the hours outlined below:
· Monday 9am to 3pm.
· Wednesday 9am to 3pm.
· Thursday 9am to 3pm.
· Saturday 10am to 2pm.
To calculate if an applicant has met the minimum period of employment, one must ascertain the actual period of service between the commencement date of employment and the time when the person is given notice of, or immediately before, their dismissal.[1] The period is calculated in calendar months.[2]
In the Applicant’s case, the date she commenced employment is 10 March 2021. The Applicant was advised by the Respondent on 10 March 2022 that her employment was terminated, the termination took effect that same day. The difference between the date the Applicant commenced employment with the Respondent, 10 March 2021, and the date she was notified of her termination, 10 March 2022, is twelve months and 1 day.
The Respondent stated in its Form F3 that it had 12 employees at the time the Applicant was given notice of dismissal. This was not in contention between the parties. I am satisfied that the Respondent is a small business within the meaning of section 23 of the Act.[3] As the Respondent is a small business, the requisite period of service the Applicant must have served with the Respondent to be a protected person is twelve months.
As will be discussed below, the primary issue to be determined is whether the Applicant had any periods of unauthorised absence, unpaid leave, or unpaid authorised absence and, therefore, are to be excluded from the calculation of the minimum employment period.
It must be observed that if any period, greater than 2 days, does not count as service pursuant to section 22 of the Act, the Applicant will not have completed the requisite period of service, namely 12 months.
Periods of service in dispute
Period of casual employment
The Applicant commenced her employment with the Respondent as a casual employee. This arrangement was formalised in a contract. This contract was submitted into evidence.
The Applicant submits that she was a regular, systematic, and ongoing casual employee. The Applicant submits that she regularly worked the same hours and days throughout her entire employment. The Respondent did not dispute or confirm the Applicant’s submission. Further, the Respondent did not advance any submissions regarding the period of casual employment and its effect on the Applicant’s service. In its F3 Employer Response, the Respondent states:
“…the employment was only casual from March 2021 and when she started her permanent contract she moved to a completely different department within the company on 1 July 2021”
The casual employment was subject to a written contract. The contract contained a general overview of the duties, conditions, and obligations of the Applicant’s employment. The contract did not contain any clauses which defined the engagement as non-ongoing. The Applicant submits that during her employment with the Respondent she worked the hours outlined at [8].
Absence Period 1 (18 October 2021 to 23 October 2021)
The parties agreed that the Applicant was out of the office on the below days:
· Monday 18 October 2021.
· Wednesday 20 October 2021.
· Thursday 21 October 2021.
· Saturday 23 October 2021.
For this period, the parties agree that the Applicant had sufficient paid personal leave to cover Monday 18 October 2021. The Applicant did not have sufficient personal leave to cover the remaining three days and therefore was on unpaid personal leave for those days.
The Applicant submitted that she continued to perform work from home during Absence Period 1. The Applicant provided several text message exchanges and emails to support her submission that she worked the days in question.
The Respondent submits that the Applicant was never authorised to work from home during this absence and was expressly told by the Applicant that she was on leave. The Respondent submitted into evidence a text message from the Applicant to support this.[4] The Respondent submits that, following receiving a text message from the Applicant regarding her being unwell, it accepted that the Applicant was off sick and unable to work for the rest of the week.
Absence Period 2
For an extended period of time in early 2022, the Applicant did not attend the office of the Respondent.
During this period, the Applicant submits that she continued to complete her duties from home. The Applicant submits that her reason for working from home during this period related to childcare commitments and periods of COVID-19 related isolation. The Applicant also submits that at no time did the Respondent advise her that she was not allowed to work from home during this period or that she would not be paid for this period. The Applicant submitted copies of texts and emails as evidence of work completed during this period.
The Applicant asserted that, as she continued to be paid for this period, she was not on leave and not on an unauthorised absence from work.
The Respondent submits that, despite the business continuing to pay the Applicant during this period, they never approved the work from home or absence from the workplace.
The Respondent submitted that messages from the Principal of the Respondent, Mr Mark Snelson (Mr Snelson), sent during this period to the Applicant acknowledging her absence from the office did not act as approval of her working from home. The messages from Mr Snelson in response to the Applicant stated “ok” and “no problem”. The Respondent maintains that those responses did not indicate approval of the absence from the workplace.
Consideration
Period of casual employment
The Respondent did not reject the Applicant’s submission that she was a regular, systematic, and ongoing casual. For completeness, I will discuss this period and its potential effect on the calculation of the Applicant’s service.
Periods of service as a casual do not count towards the period of employment unless that employment is on a regular and systematic basis, and the employee held a reasonable expectation of continuing employment on the aforementioned basis.[5]
Although not expressly, the Respondent seemingly submits that the Applicant’s service as a casual in itself, or the fact that the Applicant was subsequently transferred to a full-time contract, leads to this period being excluded from the calculation. Being a casual staff member, in itself, clearly does not preclude a finding of a reasonable expectation of ongoing engagement nor does it automatically exclude any service as a casual from the calculation of minimum employment period.[6]
It appears the Applicant’s engagement in this period was regular and systematic. I find it likely that the pattern of engagement, the Respondent’s reliance on her as an employee, and the absence of any indication that she was not ongoing, would have led the Applicant to form an expectation of ongoing employment. There is no evidence that this expectation would have been unreasonable, on the contrary, the absence of any assertion otherwise by the Respondent enforced the reasonableness of the Applicant’s expectation.
I am satisfied, on the limited evidence before the Commission, that the Applicant’s service as a casual employee is included for the purposes of calculating the minimum employment period.
Absence Period 1
The Respondent submits that; the Applicant had a period of unpaid sick leave for three days in Absence Period 1.
The Applicant submitted that during this period she completed work remotely from home as well as attending a property inspection on Saturday 23 October 2021.
The parties agreed that the Applicant had adequate paid personal leave to cover Monday 18 October 2021. Accordingly, that day counts towards the minimum employment period.
The Respondent provided a copy of the Applicant’s pay records for a period of the Applicant’s employment with the Respondent. The pay records confirm that the Applicant had a period of unpaid leave on 20, 21, and 23 October 2021.
Based on the text messages provided, it is clear that the Applicant checked and responded to work related correspondence during this period. The messages show that the Applicant messaged clients on Thursday, 21 October, and that she attended a home open on Saturday 23 October. From the evidence provided, it is apparent that there was no work related correspondence on Wednesday 20 October.
It is clear the Applicant responded to some work-related correspondence in Absence Period 1. Despite this, I am not satisfied that the work completed was substantial and find that it would not fulfill a day of work.
The screenshots also show the Applicant liaising with clients on days that she is not rostered to work and outside the hours she is rostered to work. Further, the Applicant sent several texts to a client on Monday 18 October, the day for which she could claim paid leave.
The Respondent submits that it was under the belief that the Applicant was unwell and was not engaging in work. In support of this submission, the Respondent provided a text conversation between the Applicant and the Respondent’s office manager that reads:
OFFICE MANAGER: “Hi Laurissa haven’t seen you so far this week. Are you working?”
APPLICANT: “Hi Cheryle .I’ve messaged Mark, no I had my other wisdom tooth out and it’s been infected. I don’t think I’ll be in this week. Sorry I didn’t think to message you.”
In the matter of Therese O’Beirne v Spectrum Migrant Resource Centre Limited the Commission determined that an employee had not met the minimum employment period despite the employee’s claim that they had undertaken work during a period of leave.[7]
The employee, Ms O’Beirne, had taken a period of extended unpaid leave to travel to Europe but asserted that she had undertaken work during that period. Ms O’Beirne submitted a list of work emails she read and responded to. Therefore, she submitted, that the period of leave should not be classified as such and should be included in the calculation of the minimum employment period.
The respondent submitted that it did not expect nor require her to work during this period and believed she was on leave. Deputy President Clancy stated the following in finding that the period of unpaid leave should be excluded from the minimum employment period:
“I accept the evidence of Mr Nott that the company did not require Ms O’Beirne to work during this period. Ms O’Beirne could have ignored her emails and not responded to messages from colleagues. She did not allege that Mr Nott, to whom she reported, required her to work during her absence. The grant of her leave without pay was not conditional on her agreeing to work from time to time. I accept Ms O’Beirne’s evidence that she read and responded to emails during the period of unpaid leave, but it was not work that she was required by the company to perform.
The fact that a period of leave is described as unpaid, and is in fact unpaid, does not necessarily mean that it is at law a period of unpaid leave. If an employee were required to work during such a period, and then was not paid, it would be inapt to describe the period during which the work was performed as leave without pay. However, Ms O’Beirne’s checking of emails and responding to many of them does not in my view change the character of her period of leave. She could have turned off her device. She was granted unpaid leave to travel in Europe. I find no evidence of her being required or expected to work.
I also find it significant that Ms O’Beirne did not make any claim for payment in respect of work said to have been undertaken while she was in Europe. Nor did she express any concern to the company about receiving messages or being diverted from her travelling and personal pursuits. The day on which she spent most time reading and sending emails was 25 July 2018, however it was not until many months later when filing her unfair dismissal application that she sought to characterise this as work.
Ms O’Beirne’s interest in her work and desire to assist her colleagues during her period of unpaid leave is commendable however I do not consider that she was rendering service at this time. Her long period of unpaid leave does not count towards her period of service.
I note that, if Ms O’Beirne wishes to press her claim that she was underpaid, she will need to do so in a court.”. [8]
I acknowledge that the Applicant did complete work in this period, however, I find that the work completed was not substantial. While I appreciate that Ms Lockett had gone to lengths, further than that required under her contract, to contact clients, I do not consider that the work completed justifies the period of leave being defined as service and therefore included in the calculation. The Applicant was not required to work on the days in question and had clearly conveyed to the Respondent that she was taking time off from work to recover.
Mirroring the decision of the Deputy President above, I have before me an Applicant whose efforts to maintain client contact, while being unwell and on leave, commendable but not substantial, and not known or enforced by her employer.
Accordingly, I am satisfied that the Applicant had a period of unpaid sick leave on three days contained in Absence Period 1.
Section 22 of the Act provides that any period of unauthorised absence and any period of unpaid leave or unpaid authorised absence do not count as service,[9] subject to exclusions not relevant here. I have found that, the absence of the Applicant in Absence Period 1 was a period of unpaid leave. Consequently, three days do not count as service within the meaning of section 22 of the Act and for the purpose of section 384 of the Act.[10] The Applicant has not met the minimum employment period.
Absence Period 2
In relation to Absence Period 2, the Respondent submitted that text messages acknowledging the Applicant’s absence from the office for extended periods did not mean that it agreed to, or granted permission for, the Applicant to work from home. The Respondent submits that the messages sent by Mr Snelson were merely to acknowledge receipt of the Applicant’s texts. The Respondent also submits that it was unsatisfied with the Applicant’s work output during this period.
The claim that Mr Snelson’s responses to the Applicant’s messages were merely acknowledgement, and not any sort of approval, is unconvincing. The messages sent to the Applicant are notably silent on any dissatisfaction with her non-attendance.
To provide clarity on what amounts to authorisation, I refer to the decision in De Silva v Murphy Holdings (SA) Pty Ltd which, relevantly, reads:
“… On either version, Mr De Silva did not work between 18 March and 23 April. It was an absence from work. On either version the employer agreed to the absence. Whether it was an absence sought by Mr De Silva and agreed by the employer (the employer’s case) or an absence decided by the employer and disagreed by the employee (Mr De Silva’s case) it was an authorised absence in the sense that the absence was known to the employer and occurred with its acceptance and authority. …” [11]
Further, the Full Bench of the Commission has noted the following in relation to whether an absence is authorised by an employer:
“… When employees are absent from work and the employer is not only aware of their absence, but also endorses it, or perhaps even initiates or requires it, that absence is authorised. Whether the employees want to be absent or not does not determine whether the employer has authorised the absence. If anything, the fact that the absence is at the employer’s direction strengthens the proposition that the employer must have authorised that absence. …” [12]
I note the cases cited above refer to matters in which the employees were absent entirely from their duties. In the current matter, the Applicant was completing duties but was doing so from home.
Consistent with the approach of the Commission in the above decisions, and for the following reasons, I find that Absence Period 2 was not an unauthorised absence and does count towards the minimum employment period.
Firstly, the Applicant completed work during this period and no communication from the Respondent or the Applicant indicated that either believed she was not working. The Applicant was also paid as usual during this period.
Secondly, if the above determination is incorrect and this period was in fact an absence, the absence was unauthorised. Mr Snelson’s messages to the Applicant show the Respondent’s awareness of the Applicant’s absence from the office. Further, the language of the messages themselves convey authorisation, of the type defined in the two decisions referenced above, of the Applicant’s absence.
I note that the Respondent raised concerns in relation to the Applicant’s productivity in the workplace during this period and that the Respondent received complaints from customers in relation to the Applicant not being available or not being responsive.
The Respondent did not adduce any evidence showing that they conveyed the dissatisfaction with the Applicant’s absence from the office or her allegedly low work output. On the contrary, the Respondent continued to pay the Applicant during this period of absence and never advised that Applicant that her absence was unauthorised or that she would not be paid by the Respondent during this period.
In summary, I find that Absence Period 2 was not in fact an absence, and that the Respondent’s messages to the Applicant acted as endorsement of her choice to work remotely. Therefore, I find that the Applicant was not on an unauthorised or unpaid absence during Absence Period 2 and this period is not deducted from the period of service.
Conclusion
The Act provides that a person is protected from unfair dismissal if, at the time of the dismissal, the person has completed at least a minimum employment period.[13] In the case of employers who are a small business, the minimum employment period is set at twelve months.[14] The twelve-month period is a threshold requirement for making this application under section 394 of the Act and there is no discretion under the Act for this to be varied.
Having found that three days in Absence Period 1 must be excluded from the Applicant’s period of service for the purpose of sections 22 and 384 of the Act, the Applicant’s period of service falls short of the twelve-month minimum employment period required.
Accordingly, the application before the Commission must be dismissed. An Order to this effect shall be issued today.[15]
COMMISSIONER
Appearances:
L Lockett, Applicant.
M Snelson, Respondent.
Hearing details:
2022.
Perth (by video):
July 5.
[1] The end of the period is the earlier of the two times see: Fair Work Act 2009 (Cth), s 383.
[2] For discussion on the calculation of the period see: [[2010] FWA 28].
[3] Fair Work Act 2009 (Cth), s 23.
[4] Copies of these messages are quoted later in this decision.
[5] Fair Work Act 2009 (Cth), s 384.
[6] [2020] FWCFB 306, at [15].
[7] [2018] FWC 7682.
[8] [2018] FWC 7682, at [16]-[20].
[9] Fair Work Act 2009 (Cth), s 22.
[10] Fair Work Act 2009 (Cth), s 22.
[11] [2017] FWC 4926, at [38].
[12] [2018] FWCFB 2731, at [14].
[13] Fair Work Act 2009 (Cth), s 382(a).
[14] Fair Work Act 2009 (Cth), s 383(b).
[15] [PR745132].
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