Michelle Bloomer v Lynda Roberta Swanston T/A Swanston + Associates

[2013] FWC 208

[2013] FWC 208

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michelle Bloomer
v
Lynda Roberta Swanston T/A Swanston + Associates
(U2012/8522)

DEPUTY PRESIDENT SMITH MELBOURNE, 11 JANUARY 2013

Application for unfair dismissal remedy, jurisdictional objection, small business, applicant had not been employed for minimum employment period, application dismissed.

[1] Ms Bloomer argues that her termination of her employment by Swanston and Associates was harsh, unjust and unreasonable. She makes application, pursuant to s.394 of the Fair Work Act 2009 (the Act), for relief in respect of her termination of employment.

[2] Some early objections were made to the jurisdiction of Fair Work Australia to deal with the matter but in the end only two objections remained. They were:

• The termination of employment was not at the initiative of the employer, and

• There was not 1 year of continuous service.

[3] The objection that Swanston and Associates was not a national system employer was abandoned upon an assessment by Ms Swanston of the Act.

[4] I now turn to deal with the remaining two objections. To begin, it is appropriate to deal with the proposition that the termination of employment was not at the initiative of the employer.

[5] Ms Bloomer commenced her employment on 16 May 2011 and she argues that her dismissal took effect on 17 May 2012. In an Affidavit, Ms Swanston states that Ms Bloomer was in her office on 16 May in the morning and wanted to have a discussion. Ms Swanston stated that she would be absent for a period of time but would meet with her upon her return. It was the intention of Ms Swanston to issue Ms Bloomer with her third and final warning. Upon her return 20 - 30 minutes later, Ms Swanston said that Ms Bloomer had gone and did not return for the balance of the day. When Ms Bloomer did not attend for duty on 17 May, Ms Swanston wrote stating that she accepted that Ms Bloomer had abandoned her employment.

[6] The Affidavit of Ms Bloomer stated that she attended for work on 16 May 2012 to discuss matters with Ms Swanston and when advised that Ms Swanston could not see her put some work into her “in-tray” together with a medical certificate for her son. In addition, there was to be a medical certificate in relation to Ms Bloomer which was to be faxed by Ms Bloomer’s general practitioner. An Affidavit provided by Ms Renouf (an employee of Ms Swanston) confirmed that a medical certificate relating to Ms Bloomer was received between 11.00am and 1.00pm. Ms Swanston said she later became aware of the certificate.

[7] Given the factual matrix surrounding the cessation of employment I announced at the conclusion of hearing of the matter that I was not persuaded that there was an abandonment of employment and that there had been a termination at the initiative of the employer 1

[8] I now turn to the second jurisdictional objection, namely that Ms Bloomer had not completed 1 year of continuous service.

[9] The relevant provisions of the Act are sections 22, 23, 382, 383 and 384:

Section 382 of the Act relevantly provides:

“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”.

[10] Section 383 of the Act provides:

“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.”

[11] Section 384 of the Act relevantly provides:

“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.”

[12] Section 22 of the Act relevantly provides:

“22 Meanings of service and continuous service

General meaning

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(2) The following periods do not count as service:

(a) any period of unauthorised absence;

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.

(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.”

[13] Section 23 of the Act relevantly provides:

“23 Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.”

[14] It is not disputed that Swanston and Associates is a small business employer and accordingly the continuous service required is 12 months.

[15] This was hotly contested by both Ms Swanston and Ms Bloomer. Ms Swanston argued that Ms Bloomer had the following period of unpaid leave:

• Week ending 28 March 2012 2



• Week ending 30 March 2012 3

[16] Ms Swanston also argued that Ms Bloomer had the following periods of unauthorised leave:

• 16 December  4

• Week ending 27 January 5

• 2 days in the week ending 20 April 2012 6, and

• A number of days in February 7

[17] It is also clear from the hours and wage records 8 that Monday 15 May, Tuesday 16 May and Wednesday 17 May were also unpaid.9

[18] Ms Bloomer submitted that she was off work for three weeks in February 10 as a result of the illness of her son and for which annual leave was deducted and then off for two and a half weeks for her honeymoon in March for which one week was paid as annual leave and the remainder of the period was unpaid. Ms Bloomer argues that she should not have had annual leave deducted for (she estimates) the 8 days she was attending to her sick son and that this should have been carers leave. Ms Bloomer said that the additional days during the February period she attended for work intermittently.

[19] Ms Bloomer could not recall being absent during April and submitted that she had never taken unauthorised leave. 11 However that is not the only test as s.22 (2) (b) makes clear.

[20] At the time of hearing the matter Ms Bloomer had lodged a complaint with the Fair Work Ombudsman in relation to Swanston and Associates over what was said to be the failure of the employer to pay her for annual leave improperly deducted and carers leave not paid. That report was given to the employer in late 2012 and a copy provided to me in accordance with s.718 (2) of the Act. Relevantly, that report concluded:

• There was an amount of 17.09 hours of personal leave owing at the conclusion of her employment.



• No finding could be made on the use of annual leave for periods of absence given that records were inadequate and the views of the persons concerned conflicted.

[21] This is a matter which essentially turns on whether or not there was a period of unpaid leave or unpaid authorised absence as set out in s.22(2)(b). Regardless of whether or not one set of leave was substituted for another set of leave, it is the cumulative time off of unpaid leave which is critical- even, it appears, in circumstances where a person is ill.

[22] Ms Bloomer was employed and paid on the basis of a 37.5 hour week and from that I conclude, 7.5 hours per day.

[23] For the purpose of arriving at a conclusion in this matter I shall rely upon the findings of the Fair Work Ombudsman inspector who examined all relevant records and concluded that 17.09 hours of personal leave was owed at the time of termination on 17 May 2012. I accept that Ms Bloomer was not paid for the last week of employment, up to and including 17 May. I also accept that there were two days in April as identified by Ms Swanston. In addition, Ms Bloomer states that she was not paid for the two week period of her honeymoon. 12

[24] Due to the conflicting evidence presented it is difficult to accurately determine the precise amount of unpaid or unauthorised leave taken by Ms Bloomer’s during her employment at Swanston and Associates. However, I am satisfied that there was at least 3 weeks of leave which was unpaid.

[25] It follows that if the 17.09 hours which were owed at the end of the employment relationship were offset against the period of unpaid absences identified, there still remains a period of unpaid leave which would mean that Ms Bloomer had not completed 1 year of continuous service in accordance with the Act.

[26] I find that Ms Bloomer is not a person protected from unfair dismissal. The application is dismissed for want of jurisdiction.

DEPUTY PRESIDENT

Appearances:

Ms Bloomer the Applicant,

Ms Swanston on behalf of Lynda Roberta Swanston T/A Swanston + Associates

Hearing details:

2012.

Brisbane:

September, 13.

Final written submissions:

2012

15 November

 1   Transcript PN256

 2   Transcript PN45 - 52

 3   Transcript PN45 -52

 4   Transcript PN53-57

 5   Transcript PN59

 6   Transcript PN66-68

 7   Transcript PN60

 8   Exhibit S1

 9   Exhibit S1

 10   Transcript PN98

 11   Transcript PN142

 12   Transcript PN92

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