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

[2014] FWC 5267

[2014] FWC 5267

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 AUGUST 2014

Application for relief from unfair dismissal - extension of time granted.

[1] On 4 August 2014 I advised that this application would be listed for further consideration of whether Mr Adams employment met the minimum employment period and, if appropriate, whether he was dismissed for the purposes of Part 3-2 of the Fair Work Act 2009 (the FW Act). These reasons reflect the background and reasons for that decision.

[2] On 9 July 2014 Mr Adams lodged an application pursuant to s.394 of the FW Act, through which he sought relief in relation to the termination of his employment with Sunray Strawberries.

[3] In that application, Mr Adams advised that his dismissal took effect on 16 June 2014. He asserted that the application was lodged within the statutory 21 day time limit.

[4] The application was referred to me for consideration. On 21 July 2014 my Associate advised the respondent of the application and advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference on 4 August 2014. Mr Adams was required to provide a witness statement and a copy of any document relied upon, by 28 July 2014.

[5] The Employer’s Response (Form F3) to the application identified the employer as Berry Yummy Pty Ltd a/t/f The Daniels Family Discretionary Trust T/A Sunray Strawberries (Sunray Strawberries). It asserted that Mr Adams was employed on 23 December 2013 and that his dismissal took effect on 19 June 2014. The Form F3 did not identify that Sunray Strawberries objected to the application proceeding on the basis of the lodgement time for the application but did identify objections on the basis that Mr Adams had not completed the requisite minimum employment period and was a seasonal employee. That Form advised that Sunray Strawberries employed fewer than 15 employees at the time of the termination of Mr Adams’ employment.

[6] I have amended the application pursuant to s.586 of the FW Act so as to specify the respondent asBerry Yummy Pty Ltd a/t/f The Daniels Family Discretionary Trust T/A Sunray Strawberries.

[7] Mr Adams did not comply with the requirement to provide material to the Fair Work Commission (FWC) and to Sunray Strawberries by 28 July 2014. On 30 July 2014 my Associate requested urgent advice from him in this respect. Mr Adams did not respond to this request.

[8] The extension of time issue was considered through a telephone conference on 4 August 2014. A sound file record of this conference was kept. Mr Adams attended this conference. Sunray Strawberries was represented by Mr Daniels.

[9] I have considered the extension of time issue on the material before me.

[10] The information provided to the parties included a copy of s.394 and were advised of the factors I am required to take into account in considering this matter.

[11] Section 394 relevantly states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

[12] In terms of s.394(2) the advice provided to me by Sunray Strawberries indicates that the application was lodged within the specified 21 day time limit. In the conference, Mr Adams agreed that he had specified 16 June 2014 in error and that the termination of his employment took effect on 19 June 2014 Accordingly, the application was lodged within time and there is no requirement to consider an extension of time consideration.

[13] However, on the advice available to me I have significant doubt that Mr Adams is able to further pursue this application. There are two primary concerns in this respect. Firstly, s.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 $133,000 from 1 July 2014”

[14] The minimum employment period is further defined in s.383 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.”

[15] Sunray Strawberries asserts that, at the time of the termination of Mr Adams employment, it employed fewer than 15 employees. If this is correct and, if, as he has indicated in his application, Mr Adams was employed on a casual basis from 23 December 2013, then it is clear that he has not completed this minimum employment period and is consequently not able to further pursue this application.

[16] Further, Sunray Strawberries asserts that Mr Adams was employed to undertake seasonal work. Section 386(2)(a) states:

“386 Meaning of dismissed

....

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

....”

[17] If it was the case that Mr Adams was employed for the duration of a specified season the cessation of his employment at the end of that season would not then meet the necessary requirements for dismissal such that he could pursue this application.

[18] The conference on 4 August 2014 was specifically convened for the purpose of considering an extension of time issue. Whilst that issue does not remain relevant and notwithstanding that Mr Adams attended this conference, I consider that the requirements for procedural fairness require that I extend to Mr Adams the opportunity for further consideration of the jurisdictional objections identified by Sunray Strawberries.

[19] Accordingly, I confirm the advice I provided at the conference, that the matter will be listed for a further telephone conference on 2 September 2014. This listing is provisional. It is entirely dependent on the provision, to the Fair Work Commission, and to Sunray Strawberries, by close of business 19 August 2014 of an outline of Mr Adams’ position relative to the these two jurisdictional objections and witness statements for any witnesses, including himself, whose evidence is proposed relative to these two jurisdictional objections. As I have confirmed to the parties at this conference, unless this information is provided I will conclude that Mr Adams no longer seeks to pursue this application and close the Commission’s file in the matter accordingly. No further reminders will be forwarded to Mr Adams.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

M Adams on his own behalf.

R Daniels representing the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

August 4.

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