Lisa Kernot v Bianco Construction Supplies Pty Ltd T/A Bianco Construction and Industrial Supplies

[2014] FWC 8226

[2014] FWC 8226

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lisa Kernot
v
Bianco Construction Supplies Pty Ltd T/A Bianco Construction & Industrial Supplies
(U2014/13250)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 19 NOVEMBER 2014

Application for relief from unfair dismissal - minimum employment period not achieved - application dismissed.

[1] At a conference convened on 18 November 2014 I advised that I had concluded that Mrs Kernot was not a person protected from unfair dismissal and was hence unable to pursue the unfair dismissal application lodged on 13 October 2014. These reasons for decision detail the basis for my conclusion in this respect.

[2] Shortly after the lodgement of her application Mrs Kernot received advice from the Fair Work Commission Registry to the effect that it appeared that she had not completed the minimum employment period set out in ss.382 and 383 of the Fair Work Act 2019 (the FW Act). Mrs Kernot subsequently advised that she sought to pursue the application. The matter was referred to me for determination.

[3] My Associate advised the parties that the minimum employment period issue would be considered at a telephone conference for that purpose on 18 November 2014. Mrs Kernot was directed to provide a witness statement and a copy of any document upon which she relied in relation to the minimum employment period issue.

[4] On 13 November 2014 Mrs Kernot provided an email in the following terms:

“I have been having trouble with understanding how to fill in a witnessed statement relating to the minimum employment issue, I thought I had explained this over the phone and in my initial application.

I was advised when I called your office that I would get a phone call regarding this after I had recieved the email requesting this, I have just recieved the resonse from Bianco Form 3 this afternoon as well and do not agree to the responding statements,

Further more I have just started a part time job in the City and am concerned that I will be working on the date set out for this phone conference on Tuesday 18th Novmber at 3 pm.

Could you please advise the best action moving forward ie: should I have the date reshceduled?” (sic)

[5] My Associate responded in the following terms:

“Ms Kernot,

I am unable to assist you with regard to what to say in your witness statement. I can only provide the attached Information sheet in this regard ‘Preparing Documents for Filing’.

You will need to advise as soon as possible regarding your availability for the scheduled conference date. Please note, that it may be a number of weeks before the Senior Deputy President can reschedule the conference. The duration of the conference should be approximately 45 minutes.

As directed in the FWC correspondence, please ensure that whatever documentation you provide to the Commission you also send to the other side as a matter of urgency, given that you have already exceeded the directions timeframe.”

[6] On 18 November 2014 Mrs Kernot advised by email that due to her work commitments she was unable to attend the scheduled telephone conference. My Associate conveyed my advice to her that I was prepared to reschedule that conference only if Mrs Kernot reached agreement with the respondent on an alternative date, proposed as 24 November 2014 and that, unless advice to this effect was received, the scheduled conference would proceed. Mrs Kernot responded by email in the following terms:

“I do appreciate your request to have this rescheduled.

This is a very traumatic and frustrating time for me, and I would like you to rmind the SDP the following,

1) I was sacked over the phone on the 23rd September at 1pm whilst I was ill (half a day short of six months)

2) I was due to go on a Family Holiday after woking for 6 months solid at Bianco on the 4th October (45 hrs per week and paid for 38hrs per week)

3) I was not paid any payments from Bianco until the 30th September (I didnt get all that I was entitled too)

4) I was pressed for time to get this application in within the 21 Day period as I was on holiday and had to do it without recources and advise

5) I returned home from holiday on the 18th October

6) I then spent all my time looking for Employment, interviews, centrlink etc....

7) I called the office several times prior to me recieving the information in the mail and afterwards and had no response

8) As I am only casual as explained in previous emails I am unable to take time off for this however I do know that I am free for Monday 28th October 2014

Asking me to get the respondent to agree is a little unfair as I can imagine that if they do not agree and it goes ahead this afternoon without me it would be in their favour, however I have emailed and cc'd you in the request,

Past history does tell me that I will not get a response and the teleconfernce will go ahead,” (sic)

[7] Mrs Kernot did not participate in the conference on 18 November 2014. Ms Cassetta the Human Resources Manager, appeared for the respondent, Bianco Construction Supplies Pty Ltd T/A Bianco Construction and Industrial Supplies (Bianco).

[8] Section 382 states:

“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 $133,000 from 1 July 2014”

[9] Section 383 states:

“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.”

[10] There is no dispute that Bianco is not a small business.

[11] In her application, Mrs Kernot stated that she commenced employment with Bianco on 24 March 2014 and that the termination of her employment took effect on 23 September 2014.

[12] The additional information received from Mrs Kernot by email on 18 November 2014 in support of her application primarily goes to the merits of the application rather than whether or not Mrs Kernot was a person protected from unfair dismissal.

[13] On the material before me I have concluded that Mrs Kernot had not completed the requisite minimum employment period so as to be a person protected from unfair dismissal. Her application must be dismissed accordingly. An Order (PR557925) giving effect to this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

D Cassetta representing the Respondent.

Hearing (Conference) details:

2014.

Adelaide:

November 18.

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<Price code A, PR557924>