Matthew Wild v Crew Services Group T/A the Crew Services Group Australia Pty Ltd

[2017] FWC 2503

[2017] FWC 2503

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Wild
v
Crew Services Group T/A The Crew Services Group Australia PTY LTD
(U2017/1341)

COMMISSIONER RYAN MELBOURNE, 9 MAY 2017

Application for an unfair dismissal remedy - jurisdictional objections - no dismissal and minimum employment period -

[1] On 8 February 2017 Mr Wild filed in the Fair Work Commission (the Commission) an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy in relation to the termination of his employment from Crew Services Group Pty Ltd T/A The Crew Services Group Australia Pty Ltd (the Respondent).

[2] The Commission listed the matter for conciliation on 16 March 2017 but it could not proceed due to the non-participation of the Applicant. The matter was subsequently referred for arbitration.

[3] The Respondent identified two jurisdictional objections in its Form F3 – Employer Response to Unfair Dismissal Application and its Form F4 - Objections to Unfair Dismissal: that the Applicant was not dismissed within the meaning of s.386 of the Act and that The Applicant had not served the minimum employment period required by s.383 of the Act as his period of service as a casual does not count.

[4] The matter was listed for jurisdiction (no dismissal) and arbitration conference/hearing originally for 3 days in May 2017 and directions were issued for the Respondent to file and serve material in support of its jurisdictional objections by not later than 10 April 2017, and for the Applicant to respond by not later than 18 April 2017.

[5] The Respondent filed its material on 7 April 2017. The Applicant did not file any material pursuant to directions. The Commission made several attempts to contact The Applicant, without success.

[6] As the Applicant had not filed any material, and had not responded to contacts made by the Commission, on 27 April 2017 an amended notice of listing was issued for a jurisdictional hearing relating to minimum employment period on 5 May 2017.

[7] On 28 April 2017 my chambers emailed the Applicant asking him to make contact regarding his application. On the morning of 2 May 2017 I telephoned the Applicant and left a voice message for him to contact me as a matter of urgency. The Applicant did not respond to the voice message.

[8] Having been unsuccessful in contacting the Applicant, I then caused an email to be sent to the parties on 2 May 2017 advising that the hearing would proceed on 5 May 2017; that I would determine the matter in the absence of the Applicant and that there was no requirement that the Respondent attend. The Respondent had sought that the matter be determined on the papers.

[9] When the matter came on for hearing neither party appeared.

[10] The relevant sections of the Act in relation to the jurisdictional objection are:

“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.”

[11] The Respondent submitted that the Applicant commenced casual employment on 2 March 2015 and his engagement has “historically been (on) an irregular and unsystematic basis”. The Respondent provided a graph illustrating the Applicant’s engagements with the Respondent from 2 March 2015 to 6 February 2017.

[12] The Respondent did not contend that it was a small business employer

[13] As the submissions of the Respondent are uncontested, I find that the Respondent’s submissions are prima facie evidence that the Applicant’s periods of service with the Respondent do not count towards his period of employment and therefore find the Applicant has not served the minimum employment period required by s.383 of the Act. Consequently, the Applicant is not protected from the unfair dismissal provisions of the Act and his application for relief from unfair dismissal is dismissed.

COMMISSIONER

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