Miss Aimee Graham v Comgroup Supplies Pty Ltd T/A Comgroup

[2014] FWC 1296

[2014] FWC 1296

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Miss Aimee Graham
v
Comgroup Supplies Pty Ltd T/A Comgroup
(U2013/15133)

COMMISSIONER SIMPSON BRISBANE, 10 MARCH 2014

Application for relief from unfair dismissal.

[1] The following Decision, now edited, was issued during proceedings on 21 February 2014.

[2] This matter concerns an application under section 394 of the Fair Work Act by Aimee Graham, the applicant, who alleges that the termination of her employment with Comgroup Supplies Pty Ltd T/A Comgroup, the respondent, was unfair in accordance with the definition contained in s.385 of the Act.

[3] The application was filed on 21 October 2013. The matter was listed for conciliation conference. The matter was then allocated to me and listed for directions hearing on 3 February 2014, where the respondent pressed their jurisdictional objection that the applicant was under an apprenticeship training plan which had ended, and on that basis could not argue that they were dismissed, relying on s.386.

[4] Directions were issued for the filing of statements and materials concerning the jurisdictional objection and the matter has been heard today, Friday 21 February. As said, the jurisdictional objection has been made on the grounds that, as the applicant was an apprentice and the training arrangement was completed, that they were not dismissed by operation of s.386 of the Act.

[5] The respondent filed written submissions and a statement of Mr Steven Myler, the CEO of the meat division Australia within the respondent, and there were three attachments with the statement of Mr Myler. Mr Myler gave evidence on oath today in addition to that. Ms Graham filed written submissions and a statement from herself, with 14 attachments. Ms Graham also gave evidence on oath today, further to her written material.

[6] Section 386 of the Act reads as follows:

“386. Meaning of dismissed”

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

Section 386(2) reads:

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

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement…

[7] I do not need to consider s.386(2)(c) and so I will not repeat it here. In terms of the background of the matter, it is common ground between the parties that Ms Graham was employed in the meat processing part of the business from 6 August 2007 on a casual basis in a packing role, which ultimately gained her full-time employment from around January 2010 in a labouring machinist role, which in all likelihood it would appear from the evidence to me to have been work covered by the Meat Processing Award.

[8] It is common ground also that the parties entered into an apprenticeship contract from 30 March 2010 for Ms Graham to complete an apprenticeship as an electrical fitter mechanic. The training agreement, or a copy of it, was provided as an attachment to the statement of Mr Steven Myler. As I said, the contract was entered into between the parties on 30 March. It is clear from the terms of the contract that it was competency-based and not time based.

[9] The respondent says the contract was filed with the relevant authority, and the material would appear to indicate that that was the case, pending approval. Approval was subsequently received from correspondence by the Department of Education and Training, a State Government Department, on 22 April 2010. The contract identified the commencement date as 6 April 2010 and the nominal expiry date of 4 April 2014.

[10] As I said earlier, it is clear from its terms that progression through the apprenticeship could occur earlier on the basis of the competency-based scheme. The applicant duly completed the apprenticeship by competency modules. A notice of issue of qualification was issued by TAFE Queensland dated 21 October. The notice shows that the completion date of the apprenticeship was 1 October 2013.

[11] Going to the termination itself, it is evident from the material that the respondent had cause to send correspondence to the applicant in September 2013, foreshadowing its view that the employment relationship would end on the successful completion of the apprenticeship. Mr Myler gave evidence about a conversation he had with a supervisor involved in the training program. That evidence was to the effect that it was indicated to him that the supervisor was of the view that the contract would be completed or the apprenticeship completed by 1 October.

[12] Ms Graham's own written submission says that it was her understanding, and this was confirmed in oral evidence today, that the fulltime packer machinist role expired when she entered into the apprenticeship training contract in March 2010, and on her own view, there was no connection between that earlier role and the position of the electrical apprenticeship role, as they are different positions.

[13] So to that extent it is not argued, nor would it appear to be available to be argued, that the employment as a machinist labourer was an ongoing contract as at 1 October 2013, from its earlier life in 2010. I certainly would not be of the view that it could be so argued. There is no question that the relevant industrial awards that would have applied to the two different roles are different. It has been acknowledged that the roles were different. So to that extent that issue can be excluded.

[14] There is a dispute in the evidence about whether or not an oral contract had been made between Ms Graham and the respondent about ongoing employment at the completion of the apprenticeship. Mr Myler was emphatic in his oral evidence and in the material that he denies any such claim. Ms Graham asserts that discussions of that nature had occurred on a number of occasions. The difficulty I have got in determining a view in favour of Ms Graham on that point is that there is simply no documentation available to me to support the claim, and there is no compelling evidence to satisfy me that such a contract existed.

[15] The applicant has pointed to the leave arrangements that were made in March 2013 to support the claim. But there were submissions made and some cross examination on the point going to the fact that those arrangements were made in early 2013, and it would appear to be reasonable for me to draw the conclusion that they were in advance of the respondent knowing when the apprenticeship would be completed.

[16] In fact the evidence of Mr Myler has been that it was not until around the middle of September 2013 that he became aware that the apprenticeship would finish as early as it ultimately did. There has been some disputation in the evidence about the reasons why the apprenticeship was concluded early, and obviously somewhat considerably earlier than the nominal date nominated in the original contract. But ultimately that argument is really somewhat beside the point for me in concluding this jurisdictional issue.

[17] I must determine whether or not the applicant is excluded from bringing an unfair dismissal claim because of the operation of s.386. In reaching the conclusion, I have considered all of the submissions and the evidence. And on balance I am satisfied that firstly, a training arrangement applied to Ms Graham for the dates set out in it. I do not think there is any argument about that. But I am also further satisfied that her employment contract with the respondent was limited to the duration of the training contract.

[18] On that basis, there is simply no jurisdiction for me to go on to consider whether or not the termination was unfair. But there are some further things I want to say. Having made that decision, I make these observations. It is apparent to me from the material that has been filed by Ms Graham that she has argued that the reason why she is no longer employed by the respondent is because of the fact that she had made claims of harassment, or an issue of that nature was raised by her, and in her view there is a connection between that and the ending of her employment with the respondent.

[19] While, the matter is clearly barred in jurisdiction terms from proceeding as an unfair dismissal claim, it could have been open, under Chapter 3 Part 1 of the Act, for a person to bring an application that an employer refused to employ them as a prospective employee because they exercised a workplace right in accordance with s. 341 of the Act. That of course would be a general protections claim. That is not the claim that has been brought, and of course is an entirely different matter to the matter that is currently before me.

[20] I make those observations because it would appear to me at least that is really where, Ms Graham, you have been seeking to go, but this application does not give you the capacity to go there. So for all of those reasons I intend to dismiss the application.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR548021>