Michael Lockhart-Lannen v Heather Hill Nursing Agency Queensland
[2010] FWA 1758
•9 MARCH 2010
[2010] FWA 1758 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
Heather Hill Nursing Agency Queensland
(U2009/11240)
COMMISSIONER SPENCER | BRISBANE, 9 MARCH 2010 |
Termination of employment – minimum employment period.
Introduction
[1] The Applicant (Mr Lockhart-Lannen) has made an application stating that his employment was terminated unfairly by the Respondent (Leading Staff Pty Ltd t/as Heather Hill Nursing Agency Queensland) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act).
[2] The matter proceeded to conciliation but was not resolved.
[3] The Respondent has raised a jurisdictional objection on the ground that the Applicant did not meet the “minimum period of employment” of six months as prescribed by ss.383 and 384(1) of the Act and therefore Fair Work Australia (FWA) does not have the jurisdiction to determine the unfair dismissal application. Directions were set for the filing of materials in this matter. Both parties agreed that the jurisdictional matter should be determined on the papers, and that a hearing was not necessary.
[4] The Respondent indicated in their ‘Form 3 – Employer’s Response to Application for an Unfair Dismissal Remedy’ that they employ between 180-250 employees per week. Therefore it is not a small business for the purposes of the Act. The Applicant did not object to this.
[5] Whilst this determination does not make reference to all of the materials filed in relation to this matter, all of such have been considered.
Relevant provisions of the legislation
[6] The relevant sections of the Act state as follows:
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 $108,300 from 1 July 2009
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
Background
[7] The Applicant submitted that he was employed by the Respondent as an Assistant in Nursing as a casual, on a regular but systematic basis for in excess of the minimum employment period of six months. The Applicant had an expectation of ongoing employment. The Respondent alleged that the Applicant’s employment with the Respondent commenced on 29 January 2009, and his employment was terminated by the Respondent on 24 July 2009, a period of less than six months.
[8] On 13 August 2009, the Applicant applied to Fair Work Australia for relief claiming that he was unfairly dismissed from his employment pursuant to s.394 of the Act. It is not relevant to detail the merits of the substantive application at this jurisdictional stage.
The Respondent’s Submissions
[9] The Respondent submitted that its business provides aged care nurses and assistants in nursing for agency roles. The Respondent stated that before an interviewee can be released for permanent placement or employment, they must meet a number of criteria as outlined in the Leading Staff’s document “Activation Process” (LS-1). The criteria outlined in LS-1 are as follows:
“
• Check the applying nurse’s electronic file from top to bottom and ensure that all required fields have been completed. If any information is missing, check the nurse’s application forms or contact the nurse to obtain the information
• Two current referees have verified the nurse’s clinical competency and experience. Evidence to support recent clinical experience. Verbal confirmation may be accepted at the Recruitment Interviewer’s / Director’s discretion.
• The Police record check and DIMA (visa) check (if required) have been completed and are successfully accepted.
• The relevant ATO (tax declaration sign up), Superannuation, and other application forms have been completed.
• There are no outstanding health issues or previous injury claims (i.e. back, neck, limb injuries, soft tissue injuries, etc.) which would result in the applicant being reviewed by the Director.
• The nurse has provided a current QNC registration certificate. A verbal confirmation of the following information is carried out over the phone to the Board – Name, Date of Birth, expiry date of registration, registration number and if there are any restrictions on that nurse. The information can also be checked out over the website of the various registration boards. Particularly in the case of a Graduate or Overseas RN.
• The nurse has provided sufficient identification documentation to support at least 100 points of verification.”
[10] The Respondent also submitted that an interviewee must sign an on-hire agreement which contains prerequisites that must be met before a prospective employee can be offered work.
[11] The Respondent submitted the effect of signing the agreement is that a “registrant” is placed on the Respondent’s “register of people looking for work with us”. The agreement does not guarantee a registrant work. The agreement does not provide a registrant with any employment details regarding wages, duties, hours of work or leave entitlements. Clause 3.9(z) of the agreement provides that the applicant will undertake an induction programme relevant to assignments that an applicant may be offered and that they will not undertake any assignments unless they fully understand all components of the induction programme.
[12] The Respondent stated that the Applicant contacted the Respondent on 6 January 2009 and advised that he had not worked in a nursing home for four years and that he would need to do a manual handling course. An interview was arranged for 23 January 2009.
[13] The Respondent stated that the Applicant “could not be released for placement until he met the criteria as set out above”. The Respondent stated that the steps taken to meet the criteria were as follows:
“(a) Mr Lockhart-Lannen’s electronic file was completed on 28 January 2009 (‘LS-4’).
(b) As Mr Lockhart-Lannen was a former employee of Leading Staff, Mr Lockhart-Lannen’s clinical experience was confirmed by Ms Heather Hill and Ms Joyce Rafe of Leading Staff. However, a separate reference check was required to be performed as Mr Lockhart-Lannen had not worked for Leading Staff since 2004. Mr Lockhart-Lannen’s reference check was not completed until 27 January 2009 (‘LS-5’).
(c) Mr Lockhart-Lannen provided Leading Staff with a statutory declaration and receipt for application for police certification on 23 January 2009 (‘LS-6’).
(d) Mr Lockhart-Lannen provided Leading Staff with a tax file number declaration on an unknown date in January 2009. This was completed by Leading Staff on 27 January 2009 (‘LS-7’). As Mr Lockhart-Lannen was a former employee of Leading Staff, Leading Staff already had Mr Lockhart-Lannen’s superannuation details.
(e) No outstanding health issues or previous injury claims were raised by Mr Lockhart-Lannen during his interview on 23 January 2009.
(f) As Mr Lockhart-Lannen was an Assistant in Nursing, he was not required to be registered by the QNC. …
(g) Mr Lockhart-Lannen provided sufficient identification documentation at his interview on 23 January 2009.”
[14] The Respondent also stated that:
“In accordance with clause 3.9(z) of the agreement at ‘LS-3’ [that Mr Lockhart-Lannen signed with the Respondent on 23 January 2009], Mr Lockhart-Lannen was not able to be offered any work until he undertook manual handling training, as part of induction relevant to his work. Mr Lockhart-Lannen completed the manual handling training on 28 January 2009 (‘LS-8’). Mr Lockhart-Lannen did not receive any payment for this training.”
[15] The Applicant’s employment was “activated” on 29 January 2009 after successful completion of the employment prerequisites including the manual handling training and he advised the Respondent he was available to commence immediately. He completed his first shift on 29 January 2009.
[16] Accordingly the Respondent submitted that the Applicant’s period of employment did not commence until 29 January 2009 and his employment was terminated on 24 July 2009, being a period of less than six months. Therefore the Respondent stated that the Applicant’s period of employment does not meet the minimum employment period and is not in accordance with s.382(a).
The Applicant’s Submissions
[17] The Applicant was employed by the Respondent on two separate occasions. The first period of employment ended in 2004 and is not relevant to these proceedings. The Applicant stated the second period of employment was from January 2009 to the end of July 2009.
The Applicant stated that:
“
• Mr Lockhart-Lannen signed the employment agreement with Heather Hill Agency on the 23rd January 2009 (see appendix 1)
• Mr Lockhart-Lannen complied with all the requirements of Heather Hill Nursing Agency and informed Heather Hill he was available for an immediate start
• Heather Hill told Michael Lockhart-Lannen that because he had been a previous employee of Heather Hill Nursing Agency she would ‘fast track’ any authorisations that were required so he could start immediately
• As a result of Heather Hill’s reassurances and clause s3.9(u) of the employment agreement Michael Lockhart-Lannen was effectively excluded from working for other agencies
• Therefore Michael Lockhart-Lannen considered himself under the exclusive employment of Heather Hill Nursing Agency from the 23rd January 2009
• Therefore from the 23rd of January 2009 until his termination on 24th July 2009 constitutes 6 months continuous employment for the purpose of s382(a), s383 of the Fair Work Act”
Conclusions
[18] The Respondent’s assessment of the pre-employment criteria and the interpretation of the force of the ‘Registrants’ Agreement’ is preferred. The fact that he signed the Agreement to register for employment on 23 January 2009, did not initiate his employment period. The completion of the pre-employment checks and the actual commencement of the paid employment assignment commenced on 29 January 2009. If I am wrong in this regard and the period of employment commenced when the pre-employment checks were completed; these were not finalised until 28 January 2009 with completion of manual handling course, which still puts the employment period inside the six month minimum period, from 28 January 2009 to 24 July 2009. Even if, as the Applicant relies upon, he was to be exclusively available for this Agency from 23 January 2009, he could not have been employed until all of the pre-employment requisites had been met.
[19] The Applicant signed the registration for employment document on 23 January 2009, this Agreement was confirmed by the provision by the Respondent of employment assignments. Further, the Respondent’s “Activation Process” document clarifies that the release of a nurse for placement purposes can only be achieved when all recruitment/vetting criteria have been successfully met. The completion of these was evidenced by the Manual Handling training course undertaken on 28 January 2009, for which the Applicant was not paid. He was not able to be referred for employment until he had completed this manual handling training. His employment commenced with his first shift on 29 January 2009 when the pre-employment checks were satisfied and his engagement in work commenced.
[20] Accordingly, as the employment period was terminated on 24 July 2009 and his employment is deemed to have commenced on 29 January 2009, it is not commensurate with the minimum employment period of six months. Therefore the matter is jurisdictionally barred and the application made pursuant to s.394 is dismissed. I Order accordingly.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<Price code C, PR994564>
0
0
0