Melanie Harriss v Wambone Pty Ltd T/A Gleneagles Aged Care Facility

[2015] FWC 4680

[2015] FWC 4680

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Melanie Harriss
v
Wambone Pty Ltd T/A Gleneagles Aged Care Facility
(U2015/8327)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 10 JULY 2015

Application for relief from unfair dismissal – jurisdiction – minimum employment period not completed.

[1] On 9 July 2015 I advised Miss Harriss and Ms Pedler, representing Wambone Pty Ltd T/A Gleneagles Aged Care Facility (Gleneagles) that her unfair dismissal application, lodged by Ms Harriss on 10 June 2015 would be dismissed. These reasons detail the basis upon which I reached that conclusion.

[2] Miss Harriss’ application identified her employer as Gleneagles Aged Care Facility. The Employers Response to the application confirmed the legal name of the employer as Wambone Pty Ltd T/A Gleneagles Aged Care Facility. I have utilised the discretion in s.586 of the Fair Work Act 2009 (the FW Act) to amend the application so as to properly identify the employer.

[3] In her application, Miss Harriss advised that she commenced working for Gleneagles on 6 May 2015. She advised that the termination of her employment took effect on 26 May 2015. The Fair Work Commission (FWC) Registry staff advised Miss Harriss, at the time when she lodged the application, that it appeared that she had not completed the requisite minimum employment period so as to be able to make an application of this nature. Notwithstanding this, Miss Harriss indicated that she wished to proceed with the application. The Employer’s Response (Form F3) to the application confirmed that Gleneagles objected to the application on jurisdictional grounds on the basis that Miss Harriss had not completed the required minimum employment period.

[4] On 15 June 2015 my Associate advised the parties that the issue of whether Miss Harriss had completed the minimum employment period would be considered at a telephone conference on 9 July 2015. Miss Harriss was required to provide a witness statement detailing her position relative to the minimum employment period issue and a copy of any document upon which she relied in this respect.

[5] Miss Harriss provided a statement on 26 June 2015 in which she confirmed that she commenced employment on a casual basis, as a Personal Care Worker on 5 May 2015 and that she was dismissed on 26 May 2015.

[6] At the telephone conference on 9 July 2015, Mr Bolton sought a grant of permission pursuant to s.596 of the FW Act to represent Gleneagles. Miss Harriss advised that she did not oppose that request. The request for a grant of permission was granted pursuant to s.596(2)(a). Notwithstanding this, Mr Bolton was not required to play any part in the conference proceedings. A sound file record of the telephone conference was kept.

[7] Miss Harriss’ application was made pursuant to s.394 of the FW Act. An application of that nature can only be made by a person who is protected from unfair dismissal. Section 382 of the FW Act 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”

[8] The concept of a minimum employment period is addressed in ss.383 and 384 in the following terms:

“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.”

[9] Miss Harriss had not completed the minimum employment period. Accordingly, she was not a person protected from unfair dismissal with respect to her employment at Gleneagles and is not able to make an application pursuant to s.394. Her application must be dismissed accordingly. An Order (PR569271) to this effect will be issued.

Appearances (by telephone):

M Harriss on her own behalf.

L Bolton representing the respondent.

Hearing (Conference) details:

2015.

Adelaide:

July 9.

Printed by authority of the Commonwealth Government Printer,

<Price code C, PR569270>