Michael Humphries v Benalla Bowls Club Inc

[2023] FWC 1238

[2023] FWC 1238

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Michael Humphries
v

Benalla Bowls Club Inc

(U2023/2448)

DEPUTY PRESIDENT COLMAN MELBOURNE, 26 MAY 2023

Unfair dismissal application – minimum employment period – application dismissed

1. The following is an edited version of a decision given ex tempore on transcript earlier today to which I have added a brief introduction. Mr Michael Humphries (applicant) has made an application for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act). From September 2022 until his dismissal in March 2023, the applicant was employed as a casual worker by Benalla Bowls Club Inc (respondent). He was dismissed for inappropriate behaviour towards female staff and customers. The applicant denies that his conduct was inappropriate and contends that his dismissal was unfair. The respondent objected to the application on the jurisdictional ground that the applicant had not served the minimum employment period of six months. The applicant disputed this. I conducted a recorded conference to resolve this matter.

1. The respondent is not a small business employer. The minimum employment period that the applicant must have served with the respondent in order to be a ‘person protected from unfair dismissal’, and therefore able to bring an unfair dismissal application against the respondent, is six months (see ss 382 and 383). The respondent submitted that the applicant had commenced employment on 13 September 2022 and was dismissed on and with effect from 10 March 2023, three days short of the six-month period.

1. The applicant stated in his application that he had commenced employment on 12 September 2022 and that his dismissal occurred on 12 March 2023, with the consequence that he had completed six months of service. In his written submissions however, he was unsure about his period of employment. He stated: ‘I don’t know I’m 2 days short … how do I know.’

1. At the conference, Ms Wendy Joseph, the respondent’s chief executive officer said that the applicant did not have a written contract of employment, nor had he been given a termination letter, and that instead the respondent had employed and dismissed the applicant orally. Ms Joseph said that the respondent’s payroll records showed that the applicant worked his first shift on Tuesday 13 September 2022 from 4.00pm to 9.00pm, and that he worked his last shift on Friday 10 March 2023 from 6.00pm to 9.00pm. She submitted copies of timesheets for the weeks commencing 12 September 2022 and 6 March 2023, bearing the signatures of the applicant and his manager, which record that the applicant worked on 13 September 2022 and not 12 September 2022, and that he worked on 10 March 2023, not 12 March 2023. The applicant did not contend that the weekly pay records submitted by the respondent were wrong, nor did he advance any argument that cast doubt on their accuracy.

1. The applicant said at the conference that he was not sure that he had been dismissed at all, because he had received nothing in writing, and that he had hoped that the respondent would continue to roster him for work. Ms Joseph said that she and the operations manager dismissed the applicant on the day of his last shift, and that the operations manager asked the applicant to return his name badge and told him that he was not required. I accept this. I note that in his F2 application, the applicant recognised that he had been dismissed and notified of his dismissal.

1. The weekly pay records are clear and precise. There is no reason to think that they are not accurate. The applicant’s contention was that he began and ended his employment in those same weeks, but on different days, however he is mistaken. I find that the applicant’s period of employment with the respondent started on 13 September 2022 and ended on 10 March 2023. It was a period of less than six months. The applicant was therefore not a person protected from unfair dismissal.

1. I note that the applicant was a casual employee, and that a person’s period of service as a casual only counts towards the period of employment if the person was a regular casual employee, and during the period the person had a reasonable expectation of continuing employment on a regular and systematic basis (see s 384(2)). However, it is not necessary to examine this issue in the present matter. The respondent did not challenge it, and I have assumed, favourably to the applicant, that he meets these requirements. The fact remains that the applicant’s period of employment is less than six months.

1. The respondent’s jurisdictional objection is upheld. The Commission has no power to determine the merits of the application because the applicant has not served the minimum employment period. The application is dismissed.

DEPUTY PRESIDENT

Appearances:

M. Humphries for himself
W. Joseph for the respondent

Hearing details:

2023
Melbourne (by telephone)
26 May

Printed by authority of the Commonwealth Government Printer

<PR762530>