Michael Adams v Berry Yummy Pty Ltd a/t/f the Daniels Family Discretionary Trust T/A Sunray Strawberries

[2014] FWC 6129

[2014] FWC 6129

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Adams
v
Berry Yummy Pty Ltd a/t/f The Daniels Family Discretionary Trust T/A Sunray Strawberries
(U2014/10664)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 4 SEPTEMBER 2014

Application for relief from unfair dismissal - person protected from unfair dismissal - minimum employment period - application dismissed.

[1] On 2 September 2014 I advised the parties to this matter that Mr Adams unfair dismissal application would be dismissed for want of jurisdiction. These reasons detailed the basis upon which I reached that conclusion.

[2] Mr Adams’ application was lodged on 9 July 2014. It was the subject of consideration through a telephone conference convened on 4 August 2014. This conference considered the lodgement time for the application in the context of the requirements for an application to be lodged within 21 days of the termination of Mr Adams’ employment. In that telephone conference I confirmed that I was satisfied that the application was lodged within that requisite 21 day period. However, I expressed concern about the extent to which Mr Adams was able to pursue the application on the basis that he was a person protected from unfair dismissal. My decision in that respect was also issued on 4 August 2014. 1

[3] These concerns were detailed in directions issued on 4 August 2014. These directions detailed arrangements for the consideration of this issue in the telephone conference on 2 September 2014. Mr Adams provided material in the form of a statutory declaration consistent with these directions.

[4] Section 382 of the Fair Work Act 2009 (the FW Act) specifies when a person is protected from unfair dismissal. This section 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”

[5] The only issue relevant to Mr Adams in this regard is the question of whether he has completed the minimum employment period.

[6] This minimum employment period is defined in s.383 which states:

“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.”

[7] There is no dispute that Berry Yummy Pty Ltd A/T/F The Daniels Family Discretionary Trust T/A Sunray Strawberries (Sunray Strawberries) was a small business employer at the time of the termination of Mr Adams’ employment consistent with s.23 of the FW Act. Both Mr Adams and Sunray Strawberries agreed that, at that time, there were 10 employees.

[8] The period of employment is addressed in s.384 which states:

“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] The information provided to me by Mr Adams confirms that he originally commenced work with Sunray Strawberries on 6 May 2013 and that this initial period of employment concluded on 15 October 2013. Mr Adams then recommenced employment with Sunray Strawberries on 23 December 2013. The termination of that second period of regular casual employment took effect on 19 June 2014. I note that Sunray Strawberries agrees with Mr Adams in relation to these employment dates.

[10] As a consequence, Mr Adams has not completed the required minimum period of employment in that he has not completed a period of continuous service of one year before the termination of his employment. On this basis I have concluded that Mr Adams was not a person protected from unfair dismissal and, accordingly, was not able to pursue this application.

[11] An Order (PR555075) dismissing the application consistent with these reasons will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

M Adams on his own behalf.

R Daniels representing the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

September 2.

 1   [2014] FWC 5267

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<Price code A, PR555074>