Lisa Barnes v Travelrite International Pty Ltd

[2014] FWC 4506

[2014] FWC 4506

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lisa Barnes
v
Travelrite International Pty Ltd
(U2014/5872)

COMMISSIONER WILSON MELBOURNE, 9 JULY 2014

Application for relief from unfair dismissal - jurisdictional objection - continuous employment, whether minimum employment period served.

Introduction

[1] Ms Lisa Barnes has made an application to the Fair Work Commission (the Commission) seeking an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Ms Barnes’ application relates to the termination of her employment by Travelrite International Pty Ltd (Travelrite) on or around 4 March 2014, and was lodged in the Commission on 20 March 2014.

[2] Ms Barnes’ application was assigned for telephone conciliation, however this was withdrawn when Travelrite requested determination of the jurisdictional question of whether Ms Barnes is a person protected from unfair dismissal at the time of making of her application for an unfair dismissal remedy.

[3] For the reasons set out below, I find that Ms Barnes is such a person and her application will now be assigned for conciliation.

[4] Section 382 of the Act sets out the circumstances in which a person is protected from unfair dismissal. That section relies upon a person having completed a period of employment of at least the minimum employment period (which terms are defined in ss.383 and 384). These sections provide 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

(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.

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.

(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.

[5] A question of continuous employment arises for consideration since Ms Barnes was first employed by Travelrite at its Balwyn store on 10 December 2012. She was employed in a full-time position as a travel consultant and worked each day, Monday to Friday and every third Saturday.

[6] The company has three stores and around 32 employees at the time of Ms Barnes’ dismissal, which means it is not a small business for the purposes of the Act, and especially s.383(a) and (b).

[7] Ms Barnes continued in full-time employment until at least 24 February 2014. On that day she approached the Balwyn office manager, Mr Boyd Manallack, and advised him that she had decided to go back to university which would be effective from 3 March 2014. Notwithstanding this advice, the discussion turned to Ms Barnes indicating that she would be interested continuing to work for the company part-time. Mr Manallack advised her that he would discuss this with his management and let her know the company’s decision.

[8] The following day, Tuesday, 25 February 2014 Mr Manallack advised Ms Barnes that following the discussion with his manager, the company agreed to provide part-time work to Ms Barnes commencing in the week of 3 March 2014. The agreement was that in future she would work full days on Tuesdays and Wednesdays; a morning session on Thursdays and some Saturdays depending on the company’s needs.

[9] The parties’ agreement in this respect is set out in an email exchange initiated by Ms Barnes on 24 February and concluded by Mr Nigel Walliss on 27 February as follows 1;

“Hi Nigel,

I know Boyd has spoken to you about me now going to Uni.

I will be available Tuesday, Wednesday and Thursday mornings. Also I am available every Saturday if needed, this would be starting as of Monday next week.

Kind Regards,

Lisa Barnes

Travel Consultant”

“Hi Lisa

Thanks for the offer. As per your conversation with Boyd, Tuesday's and Wednesdays from 9:00am to 5:00pm (30 minutes for lunch) are fine as are Thursday's from 9:00am to 12:00pm. We will keep you on the Saturday roster as per the current schedule and will review requirements again at the end of March.

Regards

Nigel Walliss”

[10] Ms Barnes evidence is that she was absent from work on pre-approved annual leave on Thursday 27 and Friday 28 February.

[11] Travelrite dismissed Ms Barnes after a single incident on 4 March 2014, after Ms Barnes had sent one of the company’s Directors an email message. The message was brief and apparently intended for a co-worker and not the Director. However, the Director, Mr Neville Walliss, took offence to its contents since it followed a discussion by him with Ms Barnes earlier that morning about how she had handled a number of sales enquiries the previous weekend. The conversation is recorded by Mr Walliss in a file note attached to the Employer’s Response Form, which indicated the following;

“1. NSW [Walliss] held a brief meeting with Lisa Barnes at approximately 9.40am on 4 March 2014 to discuss sales activity at the Balwyn Travel Fair on Saturday 1 March 2014. We talked in detail about the enquiries that she had handled on the day and made an estimate of the total worth of this business.

2. During the discussion a number of problems with the way the enquiries were handled came to light: not quoting Cruise Offers fares for cruising, not taking email addresses, not planning for and putting into place effective follow-up.

3. When I returned to my office a few minutes later I found that Lisa had typed and sent me an email while we were talking at 9.45am. The email said:

Omgggggggggggg go away!!” 2

[12] Ms Barnes’ admits that she sent the email, but submits that she intended to send it to a colleague.

[13] Neither party provided to the Commission a copy of a letter of appointment or contract of employment relating to Ms Barnes either from 2012 or 2014, and Ms Barnes submits that she never saw a contract of employment. Travelrite submits that Ms Barnes’ employment was subject to the General Retail Industry Award 2010 (the General Retail Award). 3

[14] The question which arises for consideration in this matter is whether, at the time Ms Barnes was dismissed, she was within a fresh and separate period of employment distinguishable from the period of full-time employment she had had with Travelrite. Should the period of part-time employment she was undertaking on 4 March 2014 be separable from the earlier full-time period, it would be the case that she would not have yet served the minimum employment period.

[15] The parties are agreed that Ms Barnes spoke to Travelrite about her change in status on Monday, 24 February 2014 and that the change was documented in Mr Walliss’ reply referred to above. Mr Manallack’s file note relating to the circumstances of Ms Barnes termination states that he recalls having communicated about Ms Barnes with his management on 24 February, after which he relayed to Ms Barnes on 25 February that “[a]fter discussion with N. Walliss we agreed to a trial of below, taking effect from Week commencing 3 March 2014”. 4

[16] While Mr Manallack’s file note is undated, I accept this as the generality of what was communicated between the parties, and likely their intent.

[17] The General Retail Award provides that notice of termination is provided for in the National Employment Standard and that the notice of termination required to be given by an employee is the same as that required of an employer except that there is no requirement on the employee to give additional notice based on the age of the employee concerned. 5 Section 117 of the Act, which does not specifically refer to notice of termination of their employment being given by an employee to an employer, provides that an employer must not terminate an employee’s employment without written notice of at least the minimum period of notice. An employee, such as Ms Barnes, who had served more than one year but not more than three years would be entitled to two weeks’ notice of termination of employment (s.117(3)(a)).

[18] It follows that at the time she spoke with Travelrite about returning to university studies, for reason of cl.14.2 of the General Retail Award, Ms Barnes would have been obligated to give two weeks’ notice of her intention to terminate the contract of employment (noting that, of course, the parties may agree to a shorter period of notice).

[19] Employment under the General Retail Award can be as a full-time, part-time or casual employee. The Award requires an employer to inform an employee of the terms of their engagement 6 and provides the following, in respect of conversion or transfer between the types of contract of employment;

“12.10 Conversion of existing employees

No full-time or casual employee will be transferred by an employer to part-time employment without the written consent of the employee. Provided that where such transfer occurs all leave entitlements accrued will be deemed to be continuous. A full-time employee who requests part-time work and is given such work may revert to full-time employment on a specified future date by agreement with the employer and recorded in writing.”

[20] The critical issue for consideration in this matter is whether or not the period in which Ms Barnes worked as a part-time employee (which appears to have commenced on 3 March 2014, although she was not rostered to work on that day) is a period of service which is continuous with the period in which she worked on a full-time basis.

[21] The meaning of the term “continuous service” was considered by Deputy President McCarthy in the matter of Holland v UGL Resources 7 in which His Honour said;

“[20] Continuous service is not expressly defined by either s.12 or s.22. Rather, s.22(3) deems what would otherwise be service that is not continuous, to be continuous for periods of particular types of “absences”. Therefore, other than for the deeming effect of s.22(3), “continuous service” should be given its ordinary meaning. The Macquarie Dictionary gives two meanings to “continuous” relevant here:

1. having the parts in immediate connection, unbroken; and

2. uninterrupted in time; without cessation.”

[21] In addressing the meaning of continuous the service at the time of the termination I should consider answers to questions such as whether it had parts in immediate connection? Was it unbroken? Was it uninterrupted in time? Was it without cessation? The services cannot be continuous if there were periods of absence. But if the absences were of a type within the meaning of s.22(2), then the service is deemed to be continuous”.

[22] I respectfully concur with His Honour’s reasoning as set out above and elsewhere within his decision.

[23] After consideration of Ms Barnes and Travelrite circumstances, I am satisfied that the period of employment in which Ms Barnes was serving on 4 March 2014 was continuous with the service in which she had worked on a full-time basis.

[24] In forming this view, I take into account;

● that the General Retail Award provides for a pathway in which employees may move from one form of contract of employment to another, with the further opportunity to revert to the original form of contract of employment at some later time; and

● that Ms Barnes’ service with Travelrite was to all intents and purposes unbroken, including two days of previously scheduled annual leave on 27 and 28 February; and

● that the exchange of documents between Ms Barnes and Mr Walliss, brief though they may be, do not explicitly refer to there being a new contract of employment on a part-time basis separate and distinct from the original full-time contract of employment; and

● that on 4 March 2014, Ms Barnes would still have been within the period of notice of termination of employment she would have been obligated to provide under the General Retail Award had she wanted to terminate one contract of employment in order to take up another. In this regard, I note there is no evidence in either direction of there having been a waiver of the notice required to be given, or there not having been a waiver.

[25] Balanced against these considerations is the evidence put forward by Travelrite to the effect that the continuation of Ms Barnes in a part-time role was to be reconsidered at the end of March. The evidence from the company was to the effect that factors which might lead to not continue with Ms Barnes on a part-time position at that time may include the overall needs of the business and whether Ms Barnes was generating sufficient income to warrant the continuation. The evidence also included that the company had taken steps to employ a new person in Ms Barnes’ original full-time position.

[26] Notwithstanding these considerations, I consider the evidence to be more likely to suggest that Ms Barnes’ contract of employment at the time she was dismissed was continuous with the former arrangement.

[27] As a result I find that the period of continuous service Ms Barnes has completed with Travelrite is the period between 10 December 2012 and 4 March 2014. As a result, Ms Barnes has served the minimum employment period, which in the case of Travelrite was six months.

[28] It follows therefore that Ms Barnes was, at the time she was dismissed, a person protected from unfair dismissal within the meaning of the Act.

[29] The file on this matter will now be referred for conciliation in the usual manner

COMMISSIONER

Appearances:

Ms L Barnes on her own behalf

Mr N Walliss for the Respondent

Hearing details:

2014.

Melbourne:

June 27

 1   Taken from an attachment to the Employer Response Form, 13 May 2014

 2   Ibid

 3   MA000004

 4   Taken from an attachment to the Employer Response Form, 13 May 2014

 5   General Retail Industry Award 2010 (MA000004), see clause 14.1 and 14.2

 6   Ibid, clause 10.2

 7   [2012] FWA 3453

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