Matthew Gugiatti v SolarisCare Foundation Ltd

[2015] FWC 2447

[2015] FWC 2447 [Note: An appeal pursuant to s.604 (C2015/3759) was lodged against this decision - refer to Full Bench decision dated 11 August 2016 [[2016] FWCFB 2478] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Gugiatti
v
SolarisCare Foundation Ltd
(U2014/11321)

COMMISSIONER WILLIAMS PERTH, 9 APRIL 2015

Termination of employment - jurisdiction.

[1] This matter involves an application made by Mr Matthew Gugiatti (Mr Gugiatti or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is SolarisCare Foundation Ltd (the respondent).

[2] The respondent raises the following jurisdictional objections:

1. The applicant was engaged for a specified period of time for the purposes of section 386(2)(a) of the Act and was not dismissed; and

2. The applicant failed to complete the minimum employment period applicable to a small business employer pursuant to section 382 of the Act.

[3] This decision is limited to dealing with these preliminary objections.

The evidence

[4] Mr Gugiatti gave evidence on his own behalf in this matter. For the respondent evidence was given by the Chief Executive Officer Mr David Edwards (Mr Edwards) and the respondent’s Manager of Centre Operations and Business Development Ms Treslyn Hansen (Ms Hansen).

[5] The evidence of Mr Edwards was that at the time the applicant’s employment ended the respondent had 10 employees being a mixture of full-time, part-time and regular and systematic casual employees.

[6] His evidence detailed the employment arrangements for a further five staff who are casual employees who work on an irregular basis and he explained in detail the varying arrangements between the respondent and a further eight persons who are not employees of the respondent but are contractors.

[7] Mr Edwards was cross-examined on this evidence and in reply provided detailed responses to a range of assertions made by Mr Gugiatti.

[8] I accept the evidence of Mr Edwards as to the number of employees and the nature of their employment at the time Mr Gugiatti’s employment ended and I am satisfied that the employer employed fewer than 15 employees at this time.

[9] I accept the evidence of Mr Gugiatti that his employment commenced on 8 August 2013 1.

[10] The evidence is that an employment agreement was offered to Mr Gugiatti by letter dated 10 June 2013 which stated the employment start date would be 6 August 2013 and the completion date would be 6 November 2013 2.

[11] I accept the evidence of Mr Gugiatti that he was surprised by the fact this contract was only for three months and discussed his concerns about this with Ms Hansen.

[12] Some time later Mr Gugiatti received an envelope containing a second contract which this time specified a period of one year. The pay rate remained unchanged 3.

[13] That contract specified a start date of 6 August 2013 and a completion date of 6 August 2014.

[14] Both contracts included a clause which said that:

“Your contract is for a fixed period, however should either party wish to terminate the contract, either you or the organisation may provide two weeks notice of termination in writing, or one week of notice of termination if within the stipulated probation period.”

[15] Mr Gugiatti’s evidence was that this final contract was never agreed nor executed.

[16] Ms Hansen’s evidence was that Mr Gugiatti requested a longer contract and she discussed this with Mr Edwards and they agreed to extend the completion date of the contract from 6 November 2013 to 6 August 2014.

[17] Contrary to Mr Gugiatti’s evidence Ms Hansen says she discussed this with Mr Gugiatti and he was happy that the completion date had been extended. The contract was changed to reflect this new completion date but all other terms remained the same.

[18] Ms Hansen’s evidence was that this contract was signed by both parties and she recalls giving a signed copy to Mr Edwards to be placed on Mr Gugiatti’s personnel file which is kept in the CEO’s office. Her evidence was that the applicant’s entire personal file is missing.

[19] Mr Gugiatti had the opportunity to but chose not to cross examine Ms Hansen on any of her evidence.

[20] On the difference between Ms Hansen’s view that the contract with the completion date of 6 August 2014 was signed by the applicant versus Mr Gugiatti’s view that it was not I prefer the more detailed evidence of Ms Hansen’s which has not been challenged over the simple denial of Mr Gugiatti.

[21] In any event whether or not the later employment contract was signed there is no evidence that Mr Gugiatti disputed the express provision that his contract was a fixed term on either occasion when the employment agreements were provided to him or at any other time during his employment. Indeed the evidence is that he was quite conscious of this fact because he asked for the first employment agreement which had the fixed term of only three months to be changed.

[22] In addition, after in July 2014 being advised that his contract was not being renewed Mr Gugiatti sent an email to Mr Edwards on Friday, 11 July 2014 at 2.18 p.m. which demonstrates he understood that his employment was for a fixed term of one year 4.

[23] Mr Gugiatti’s email reads:

“Hi David

Thanks. That seems fine. One small thing; the contract was to be for one year and I actually started later than the contract states, by agreement, by a day or two, because of my delayed return from Europe. I think I started on the 7th or 8th.

Also, as discussed at our meeting, do you have some time this afternoon to have a conversation about the reasons my contract is not being renewed? I would appreciate it.

Cheers
Matt”

[24] Considering all the evidence above I am satisfied on the evidence that Mr Gugiatti’s contract of employment was for a specified period of time ending on 6 August 2014.

[25] All witnesses agree that Mr Gugiatti met with Mr Edwards and Ms Hansen on 9 July 2014.

[26] The evidence of Mr Gugiatti is at that meeting Mr Edwards told him that “my contract was not being renewed” 5.

[27] Mr Edwards gave Mr Gugiatti a letter 6 that stated:

“As you would be aware, your fixed term contract with SolarisCare Foundation will expire on 6 August 2014. I wish to advise that we have taken the decision to not offer you a new contract.”

[28] The evidence of Mr Edwards and Ms Hansen was consistent with that of Mr Gugiatti that he was told at this meeting by Mr Edwards that they will not be renewing his contract. Mr Gugiatti’s email referenced at [23] above confirms this.

[29] I am satisfied that on 9 July 2014 Mr Gugiatti was advised his contract was not to be renewed and would expire on 6 August 2014.

[30] I accept Mr Gugiatti’s evidence that the last time he worked was early on the morning of 15 July 2014 and that morning he sent a text message to Mr Edwards saying that he was not going to be coming into work again.

[31] Notwithstanding the end date of the contract being 6 August 2014 it appears that the respondent not wanting to dispute this issue with Mr Gugiatti agreed to pay him for a further two days being 7 and 8 August 2014. I accept there was no contractual entitlement to these payments.

[32] Ms Hansen’s evidence was that Mr Gugiatti had taken some periods of unpaid personal leave and that there had been multiple periods of absence from work when he had not been authorised to be absent. This evidence was highly specific in detail as to the dates and times of the various absences. Mr Gugiatti under cross-examination rejected a number of these instances or agreed they occurred but chose to argue that these should be offset by other occasions where he worked additional hours for the respondent.

[33] Ms Hansen was not cross-examined on her evidence regarding these issues. I accept the evidence of Ms Hansen and find that at the point of the contract ending the applicant had taken unpaid personal leave and been absent without authorisation for periods that totalled more than three days. I find that the continuous service of the applicant was reduced by this amount.

The legislation

[34] The relevant sections of the legislation to consider in this application are summarised below.

[35] Section 394 of the Act provides that only a person who has been dismissed may apply for an unfair dismissal remedy.

[36] Section 386 of the Act provides that a person has not been dismissed if the person was employed under a contract of employment for a specified period of time and the employment has terminated at the end of the period.

[37] Section 23 of the Act defines a small business employer as one who at the particular time employed fewer than 15 employees.

[38] Section 382 of the Act provides that a person is protected from unfair dismissal only if at that time they had completed a period of employment of at least the minimum employment period.

[39] Section 383 of the Act provides that the minimum employment period if the employer is a small business employer is one year ending at the earlier of the time when the person is given notice of the dismissal or immediately before the dismissal.

Consideration

[40] It is clear from the evidence that the employment of Mr Gugiatti was for a specified period of time. The end of that period of time was 6 August 2014. On 9 July 2014 he was advised verbally and in writing that he would not be offered another contract. Mr Gugiatti did not work after 15 July 2014. He was paid to the end of the period of his contract plus an additional two days payment which were not a contractual entitlement.

[41] I am satisfied that Mr Gugiatti was employed under a contract of employment for a specified period of time and his employment terminated at the end of that period. Consequently as provided for in section 386 (2) of the Act Mr Gugiatti was not dismissed.

[42] If I am wrong on this then for completeness I will consider the secondary jurisdictional objection of the respondent.

[43] Based on the facts of this matter it is clear that the respondent had fewer than 15 employees at the relevant time and so is a small business employer. Consequently the minimum employment period relevant is one year.

[44] The employment of Mr Gugiatti on his own evidence began on 8 August 2013. If indeed Mr Gugiatti was dismissed then he was given notice of this dismissal by Mr Edwards at the meeting on 9 July 2014 and indeed this is the submission of Mr Gugiatti. Accepting this to be the case then it is clear that the period of employment between 8 August 2013 and 9 July 2014 is less than one year. Consequently I am satisfied that Mr Gugiatti at the time he was given notice of his dismissal had not completed the relevant minimum employment period.

[45] If the construction of section 383 of the Act which provides that the end time for the minimum employment period is the earlier of the time the person is given notice of the dismissal and the time of the dismissal is not correct, then the result is not changed in this matter because the evidence supports the submission of the respondent that the period of continuous service of the applicant was in any event less than one year.

[46] In conclusion Mr Gugiatti was not dismissed and in any event even if he was dismissed he has not completed the required minimum employment period.

[47] I uphold both jurisdictional objections of the respondent.

[48] This application will consequently be dismissed and an order will be issued to that effect.

COMMISSIONER

Appearances:

M Gugiatti on his own behalf.

E Moran of DLA Piper Australia for the respondent.

Hearing details:

2015.

Perth:

February 19.

 1   Transcript at PN50 to PN57.

 2   Exhibit A1, Annexure G.

 3   Exhibit A1, Annexure H.

 4   Exhibit R1, Annexure DE23.

 5   Exhibit A1 at paragraph 29.

 6   Exhibit A1 at paragraph 31.

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