Mark Bridgewater v T & R Dreamworks Pty Ltd T/A Atlantic Video

[2013] FWC 1245

[2013] FWC 1245

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Bridgewater
v
T & R Dreamworks Pty Ltd T/A Atlantic Video
(U2012/17062)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 28 FEBRUARY 2013

Termination of employment - termination at the initiative of the employer - regular casual employment - protection from unfair dismissal - period of continuance service.

[1] On 21 December 2012 Mr Bridgewater lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which he sought relief with respect to the termination of his employment with Tony Curcio T/A Atlantic Video.

[2] The application was not settled through the Fair Work Commission telephone conciliation process and was referred to me for determination.

[3] On 6 February 2013 I conferred with the parties pursuant to ss.398 and 399 of the FW Act and agreed to determine the application through a conference. This conference was convened on 21 February 2013. Mr Bridgewater represented himself and Mr Curcio appeared as the respondent. In the course of the proceedings Mr Curcio advised that the respondent was in fact T & R Dreamworks Pty Ltd T/A Atlantic Video which traded in concert with Triple A Shooting Star Pty Ltd. Further, both companies were owned by Mr Curcio and his wife and operated a series of video stores. Accordingly, I have amended the name of the respondent which I have referred to in this decision as Atlantic Video.

[4] There is no dispute that Mr Bridgewater worked as a regular casual employee for between 19 and 30 hours per week. At some time on or soon after 31 October 2012 Mr Bridgewater posted a Facebook message to the effect that he was looking for other employment. There is no dispute that soon after this he confirmed to Atlantic Video management that he was looking for alternative employment. Mr Bridgewater's position is that this reflected an intention rather than any formal notice of resignation. Atlantic Video assert that it was entitled to take this advice as notice given by Mr Bridgewater to terminate his own employment. Atlantic Video subsequently commenced a recruitment process to replace, amongst others, Mr Bridgewater. After some disagreement over time off work sought by Mr Bridgewater on 4 December 2012, Mr Curcio confirmed to Mr Bridgewater on 6 December 2012 that he was not rostered to work other than on an on-call basis.

[5] Mr Bridgewater asserts that his employment was terminated at the initiative of the employer and that this was inherently unfair. Atlantic Video asserts that there was no termination at the initiative of the employer, and, in the alternative, its actions in removing Mr Bridgewater from the work roster were reasonable in the circumstances.

[6] Mr Bridgewater's evidence went to the duration of his employment and his absences over this time as a result of a hand injury and the birth of his daughter, the regular nature of his work rosters and the circumstances under which he was not available to work. Mr Bridgewater confirmed that, following the partial rejection of a request for time off work following the death of his grandmother, he decided to look for other employment opportunities.

[7] Mr Bridgewater advised that on 4 December 2012 he had advised his manager that he might not be able to work the following day because he had to take his wife for a medical appointment. Mr Bridgewater engaged in telephone and SMS communications with Atlantic Video Management relative to his availability and the hours for which he was rostered to work over the next week. Later that day Mr Bridgewater was advised that he was not rostered to work during the week.

[8] Mr Bridgewater's evidence was that on 11 December 2012 he subsequently spoke with Mr Curcio who confirmed that he was dismissed.

[9] Ms Roskilley is Mr Bridgewater's partner. Her evidence went to the time which Mr Bridgewater had off work during his employment and her involvement in the discussions and communications which occurred between Mr Bridgewater and Atlantic Video management in early December. She confirmed that she was present when Mr Bridgewater was advised on 11 December 2012 that he was dismissed.

[10] Mr Hill worked with Mr Bridgewater and provided a statement somewhat akin to a character reference. I have concluded that this statement is not relevant to the matters to be determined.

[11] Mr Curcio’s evidence went to the circumstances in which Mr Bridgewater was employed, his absence from work as a result of a hand injury sustained at home, his absence from work following the birth of his child and the extent to which Mr Bridgewater's advice that he was seeking alternative employment made it necessary for Atlantic Video to engage and train additional staff. Mr Curcio’s position was that Mr Bridgewater was well aware of this recruitment process and the extent to which it was intended to replace him as an employee.

[12] Mr Curcio agreed that a Centrelink Employment Separation Certificate provided to Mr Bridgewater in mid-December 2012 confirmed that Mr Bridgewater had been dismissed as unsuitable on the basis that he was unable to complete shiftwork rosters which gave rise to issues with his reliability and impacted on other staff. Mr Curcio’s evidence was that this form had been completed in this manner to facilitate access by Mr Bridgewater to unemployment benefits but that Atlantic Video clearly regarded the termination of Mr Bridgewater employment to have been at his own initiative.

[13] Mr Bodger is a Manager with Atlantic Video. His evidence went to his various communications with Mr Bridgewater and his understanding that Mr Bridgewater was unhappy with his employment and was seeking another job. Mr Bodger agreed with Mr Curcio and a Mr Heath that steps should be initiated to replace Mr Bridgewater. Mr Bodger’s evidence was that he confirmed to Mr Bridgewater on 6 December 2012 that he was not rostered to work.

[14] Mr Heath is another manager with Atlantic Video. His evidence went to his various discussions with Mr Bridgewater over working arrangements, including the time off required by Mr Bridgewater on 4 December 2012. Mr Heath was involved in the decision not to roster Mr Bridgewater for further work.

[15] Section 396 states:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[16] I have considered this section prior to reaching any conclusions about the substantive merits of the case.

[17] In terms of the compliance with the time limit required in s.394 (2), I have concluded that Mr Bridgewater was dismissed by Atlantic Video. I am unable to regard Mr Bridgewater's advice of an intention to leave his employment as any form of resignation. Mr Bridgewater's Facebook advice and his other communications with Atlantic Video personnel lack specificity in terms of a date upon which any resignation would take effect. Further, Mr Curcio’s evidence is clear in that he made a decision not to roster Mr Bridgewater for further work. That decision was made, and formally advised to Mr Bridgewater on 11 December 2012. Mr Bridgewater's application was lodged within the 14 day time limit then specified in s.392(2).

[18] In order to consider whether Mr Bridgewater was protected from unfair dismissal I have initially had regard to whether Atlantic Video was a small business employer. Section 23 of the FW Act defines a small business employer in the following terms:

“23 Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated; and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”

[19] Mr Curcio, Mr Bodger and Mr Heath each provided an assessment that the number of employees engaged by Atlantic Video including Triple A Shooting Star Pty Ltd as at 11 December 2012 was 14 or less. This employee count included Mr Bridgewater. Mr Curcio explained that he was part owner with another person (not being his wife) of a third company, Cell Force Marketing and Promotions Pty Ltd but that this company employed only one person. Mr Bridgewater did not challenge those employee numbers.

[20] I have concluded that Cell Force Marketing and Promotions Pty Ltd is not an associated entity but that even if it was to be regarded as such, Atlantic Video, and its associated entities, was a small business employer at the time of the termination of Mr Bridgewater's employment.

[21] 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 $123,300 from 1 July 2012”

[22] The minimum employment period is defined in s.383 as being one year if the employer is a small business employer. This means that Mr Bridgewater must have completed a minimum of one year’s employment as at the time of the termination of his employment which I have assessed to be 11 December 2012. Mr Bridgewater’s application and the evidence given to me on 21 February 2013 confirm the commencement of this period of his employment as 1 December 2011.

[23] Section 384 deals with the concept of a "period of employment" in the following terms:

“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.”

[24] This definition relies on the concept of a period of continuous service within a period of employment. I am satisfied that Mr Bridgewater was employed on a regular and systematic basis and had an expectation of continuing to do so. However, it is not simply a matter of comparing the employment start and end dates to calculate the period of service of a casual employee. In order to calculate the duration of Mr Bridgewater's continuous service it is also necessary that I have regard to s.22 which states:

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.

(3) 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.

Meaning for Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2

(4) For the purposes of Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2:

(a) 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:

(i) any period of unauthorised absence; or

(ii) any other period of a kind prescribed by the regulations; and

(b) a period referred to in subparagraph (a)(i) or (ii) 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; and

(c) subsections (1), (2) and (3) do not apply.

Note: Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2 deal, respectively, with requests for flexible working arrangements, parental leave and related entitlements, and notice of termination or payment in lieu of notice.

(4A) Regulations made for the purposes of subparagraph (4)(a)(ii) may prescribe different kinds of periods for the purposes of different provisions to which subsection (4) applies. If they do so, paragraph (4)(b) applies accordingly.

When service with one employer counts as service with another employer

(5) If there is a transfer of employment (see subsection (7)) in relation to a national system employee:

(a) any period of service of the employee with the first employer counts as service of the employee with the second employer; and

(b) the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee’s continuous service with the second employer (taking account of the effect of paragraph (a)), but does not count towards the length of the employee’s continuous service with the second employer.

Note: This subsection does not apply to a transfer of employment between non-associated entities, for the purpose of Division 6 of Part 2-2 (which deals with annual leave) or Subdivision B of Division 11 of Part 2-2 (which deals with redundancy pay), if the second employer decides not to recognise the employee’s service with the first employer for the purpose of that Division or Subdivision (see subsections 91(1) and 122(1)).

(6) If the national system employee has already had the benefit of an entitlement the amount of which was calculated by reference to a period of service with the first employer, subsection (5) does not result in that period of service with the first employer being counted again when calculating the employee’s entitlements of that kind as an employee of the second employer.

Note: For example:

(a) the accrued paid annual leave to which the employee is entitled as an employee of the second employer does not include any period of paid annual leave that the employee has already taken as an employee of the first employer; and

(b) if an employee receives notice of termination or payment in lieu of notice in relation to a period of service with the first employer, that period of service is not counted again in calculating the amount of notice of termination, or payment in lieu, to which the employee is entitled as an employee of the second employer.

Meaning of transfer of employment etc.

(7) There is a transfer of employment of a national system employee from one national system employer (the first employer) to another national system employer (the second employer) if:

(a) the following conditions are satisfied:

(i) the employee becomes employed by the second employer not more than 3 months after the termination of the employee’s employment with the first employer;

(ii) the first employer and the second employer are associated entities when the employee becomes employed by the second employer; or

(b) the following conditions are satisfied:

(i) the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer;

(ii) the first employer and the second employer are not associated entities when the employee becomes employed by the second employer.

Note: Paragraph (a) applies whether or not there is a transfer of business from the first employer to the second employer.

(8) A transfer of employment:

(a) is a transfer of employment between associated entities if paragraph (7)(a) applies; and

(b) is a transfer of employment between non-associated entities if paragraph (7)(b) applies.”

[25] Since commencing his period of employment on 1 December 2011 with Atlantic Video, Mr Bridgewater agreed that he had two breaks away from work. One of these was for a period of some four weeks after he injured his hand at home. After that time Mr Bridgewater progressively returned to his normal roster arrangements. The second occasion occurred when Mr Bridgewater took time away from work after the birth of his daughter. Mr Curcio advises that this was for a period of four weeks. Mr Bridgewater was unable to confirm the duration of that absence.

[26] Even if I ignored the time Mr Bridgewater was away from work after the birth of his daughter because Mr Bridgewater did not recall the duration of that absence, his absence from work consequent upon his hand injury was an authorised period of absence. The evidence of Mr Curcio was that Mr Bridgewater was expected back at work when medically cleared to do so. This was not a period of leave provided for under the relevant award or the Regulations. Pursuant to s 22(2)(b), it was an unpaid but authorised absence which means that this time does not break Mr Bridgewater’s continuous service but cannot be counted toward that continuous service for the purpose of achieving the minimum one year. In effect, Mr Bridgewater was employed over a total period of one year and 11 days. His absence, which cannot count toward the relevant period of continuous service was agreed to be some four weeks. Accordingly, notwithstanding that Mr Bridgewater had ,as at 11 December 2012, been employed over a period of more than one year, he had not completed one year’s continuous service.

[27] This means that Mr Bridgewater had not completed the requisite minimum employment period specified in s.383 and hence cannot be regarded as a person protected from unfair dismissal. Accordingly, Mr Bridgewater's application must be dismissed on the basis that he was not protected from unfair dismissal at the time of the termination of his employment. An Order [PR534369] to this effect will be issued.

SENIOR DEPUTY PRESIDENT

Appearances:

M Bridgewater on his own behalf.

T Curcio for T & R Dreamworks Pty Ltd T/A Atlantic Video.

Determinative Conference details:

2013.

Adelaide:

February 21.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR534368>