Marcus Harrison v Boomi Australia Pty Ltd
[2022] FWC 3262
•13 DECEMBER 2022
| [2022] FWC 3262 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Marcus Harrison
v
Boomi Australia Pty Ltd
(U2022/10346)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 13 DECEMBER 2022 |
Application for an unfair dismissal remedy – application not made in accordance with s 394(1) of the Act – discretion to waive irregularity not exercised – minimum employment period not met.
Mr Marcus Harrison made an application for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act) on 26 October 2022. The respondent, Boomi Australia Pty Ltd, raised the following objections to the application:
(a) The application was made not made within 21 days after the dismissal took effect as prescribed by s 394(2)(a) of the Act, because it was made before the dismissal took effect;
(b) Mr Harrison did not meet the minimum employment period and is not a person protected from unfair dismissal under s 382(a) of the Act; and
(c) The dismissal was a case of genuine redundancy.
The matter proceeded to jurisdictional hearing before me to determine the objections identified at [1](a) and [1](b) above.
I am satisfied that Mr Harrison made his unfair dismissal application prematurely such that it was not made in accordance with s 394(1) of the Act. For the reasons that follow, I decline to exercise my discretion to waive the irregularity in Mr Harrison’s application. This is because Mr Harrison has not completed a period of employment with the respondent of at least the minimum employment period. Accordingly, Mr Harrison is not a person protected from unfair dismissal.
Factual findings
Mr Harrison’s offer of employment from the respondent dated 3 March 2022 states relevantly as follows:
“…Your start date is currently scheduled as 4 April 2022. However please note that – as with your offer of employment - this start date is subject to the successful completion of the Company background checks and also to the attainment of your work permit, employment pass or employment visas, as may be applicable...”[1]
Mr Harrison’s Form F2 application identifies the date he commenced working with the respondent as 4 April 2022.[2]
The respondent contends that Mr Harrison’s employment commenced on 11 April 2022. In support of this position, the respondent’s senior legal counsel Elizabeth Poole gave the following evidence:[3]
“Marcus Harrison (Mr Harrison) commenced employment with the Company on 11 April 2022. Mr Harrison’s profile on “Workday”, which is the Company’s HR Information System, and his pay slip confirms that he commenced on 11 April 2022. A copy of Mr Harrison’s pay slip is attached as Document 1. A copy of Mr Harrison’s “Workday” profile is attached as Document 2.”
The respondent filed a copy of Mr Harrison’s payslip[4] and “Workday” profile[5] in support of the position in Ms Poole’s statement. During cross-examination, Ms Poole re-stated her position that the respondent’s employment records confirm that Mr Harrison’s employment commenced on 11 April 2022. Sumit Kumar Marwah, human resources consultant for the respondent, also gave evidence in the proceedings.[6] During cross-examination, Mr Marwah was asked when Mr Harrison commenced employment. Mr Marwah referred to the payslips and stated, “11 April 2022.”
Mr Harrison did not contest the respondent’s evidence as to his commencement date. While the offer of employment provides a tentative commencement date of 4 April 2022, I am satisfied that the evidence before the Commission establishes that Mr Harrison commenced employment with the respondent on 11 April 2022.
It is not in dispute that Mr Harrison was notified that he was being dismissed by reason of redundancy on 4 October 2022.[7] Mr Harrison was advised by the respondent that his employment would cease with effect on 7 November 2022.[8] On 6 October 2022, Mr Harrison was provided with a deed of release confirming his dismissal date of 7 November 2022.[9] Mr Harrison’s evidence in this respect is supported by the position of Ms Poole and Mr Marwah, who each confirmed that Mr Harrison was first notified of his dismissal on 4 October 2022 and provided with a deed of release on 6 October 2022, and that the dismissal took effect on 7 November 2022.[10]
It is not in dispute that Mr Harrison filed his application for an unfair dismissal remedy on 26 October 2022.
Consideration
Section 394(2)(a) of the Act provides that an unfair dismissal application must be made within 21 days after the dismissal took effect. It is not in dispute that Mr Harrison’s dismissal took effect on 7 November 2022 and his application was made on 26 October 2022. Mr Harrison’s application was therefore premature.
It follows, having regard to the above finding, that I do not accept Mr Harrison’s contention that his application for an unfair dismissal remedy was in fact filed one day late (being filed on the 22nd day following verbal notification of the dismissal on 4 October 2022).[11] Accordingly, Mr Harrison’s application for an extension of time cannot be regarded as competent.
While the premature filing of an unfair dismissal application is not regarded as an absolute jurisdictional bar, the Commission is generally required to exercise its discretion pursuant to s 586(b) of the Act to waive the irregularity in the filing date for the application to proceed.[12] For the reasons that follow, I do not consider it appropriate to waive the irregularity in the application in this case. This is because I am not satisfied that Mr Harrison is a person protected from unfair dismissal pursuant to s 382(a).
Section 382(a) of the Act provides that a person is protected from unfair dismissal at a time if, at that time, the person is an employee “who has completed a period of employment with his or her employer of at least the minimum employment period.”
Section 383 of the Act sets out the meaning of “minimum employment period.” It provides as follows:
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.
It is not in dispute that the respondent is not a small business employer for the purposes of s 383(b) of the Act. It follows that Mr Harrison must have completed a minimum employment period of at least six months with the respondent pursuant to s 383(a) in order to be a person protected from unfair dismissal.
Section 384 of the Act provides as follows:
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 relevantly defines the terms “service” and “continuous service” in the following way:
(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).
…
The respondent directs attention to s 383(a)(i) of the Act. It submits that the relevant date for the purposes of determining Mr Harrison’s period of employment is the time when Mr Harrison was given notice of the dismissal.
As earlier found, Mr Harrison commenced employment with the respondent on 11 April 2022. He was notified of his dismissal verbally in a meeting on 4 October 2022 and in writing on 6 October 2022. The respondent submits that for the purposes of satisfying s 383(a)(i) of the Act, it is sufficient for notification of dismissal to be provided orally.[13] However, even if I determine that notification of dismissal was not given until it was issued in writing on 6 October 2022, Mr Harrison’s period of employment with the respondent does not meet the six-month minimum employment period applicable under s 383(a)(i) of the Act. This is because at the time that Mr Harrison was given written notice of the dismissal, Mr Harrison’s period of continuous service amounted to a period of five months and 25 days.
I am therefore satisfied that Mr Harrison is not a person protected from unfair dismissal within the meaning of s 382(a) of the Act as he has not met the minimum employment period of six months.
Conclusion
Mr Harrison has not made his application for an unfair dismissal remedy within 21 days after the dismissal took effect as required by s 394(2)(a) of the Act. An application which is filed prematurely is properly to be characterised as one which is not made in accordance with s 394(1) of the Act.[14]
The Commission is conferred with a discretionary power to waive the irregularity pursuant to s 586(b) of the Act, or alternatively dismiss the application under s 587(1)(a).[15] I have concluded that it is not appropriate, in the circumstances of this case, to exercise my discretion to waive the irregularity in the application. This is because Mr Harrison is not a person protected from unfair dismissal pursuant to s 382(a) of the Act as he has not met the minimum employment period.
Section 587(1)(a) of the Act provides that an application may be dismissed “if the application is not made in accordance with this Act.” The respondent applied to have the application dismissed pursuant to s 587(3)(b) on this basis. As I am satisfied that Mr Harrison’s application was not made in accordance with s 394(1) of the Act, I consider it appropriate in all of the circumstances to exercise my discretion to dismiss it.
Order and disposition
Mr Harrison’s application for an unfair dismissal remedy in U2022/10346 is dismissed pursuant to s 587(1)(a) of the Act.
DEPUTY PRESIDENT
Appearances:
Mr M Harrison on his own behalf
Ms K Eather for the respondent
Hearing details:
6 December 2022, by Microsoft Teams
[1] Document 3 of respondent’s document bundle – Offer of employment dated 3 March 2022
[2] Form F2 at [1.1]
[3] Statement of Elizabeth Poole (undated) filed 29 November 2022 (Exhibit 2) at [5]
[4] Document 1 of respondent’s document bundle – pay slip dated 29 April 2022
[5] Document 2 of respondent’s document bundle – Mr Harrison’s Workday profile dated 9 September 2022
[6] Statement of Sumit Kumar Marwah (undated) filed 29 November 2022 (Exhibit 1)
[7] Applicant's outline of argument: extension of time at [1]
[8] Ibid at [3]
[9] Document 4 of respondent’s document bundle – Email of 6 October 2022 attaching deed of release dated 4 October 2022
[10] Exhibit 1 at [7]-[9]; Exhibit 2 at [7]-[9]
[11] Applicant's outline of argument: extension of time at [4]
[12] Mihajlovic v Lifeline Macarthur[2014] FWCFB 1070
[13] Eileen Owens v I-Med Radiology Ltd [2022] FWC 1823
[14] Mihajlovic v Lifeline Macarthur[2014] FWCFB 1070 at [42]
[15] Ibid
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