Miss Amy Kerley v Viterra Operations Pty Ltd

[2017] FWC 2317

[2017] FWC 2317

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Amy Kerley
v
Viterra Operations Pty Ltd
(U2017/781)

COMMISSIONER PLATT ADELAIDE, 27 APRIL 2017

Application for relief from unfair dismissal – minimum employment period not met – application dismissed.

[1] On 25 January 2017, Miss Amy Kerley made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Miss Kerley advised that she commenced employment with Viterra Operations Pty Ltd (Viterra) on 11 October 2012 and that her dismissal took effect on 10 January 2017.

[3] On 9 February 2017, Mr Short of Minter Ellison Lawyers on behalf of Viterra lodged a Form F3 Employer Response and raised a jurisdictional objection on the basis that Miss Kerley had not served the minimum employment period. It is not in dispute that Viterra is not a small business and thus the applicable minimum employment period, pursuant to s.383 of the Act, is 6 months.

[4] A directions hearing was conducted on 17 March 2017 where the parties were required to submit witness statements and submissions. A hearing by way of telephone conference was scheduled for 26 April 2017.

[5] On 7 April 2017, Miss Kerley submitted a Form F51 application seeking that Mr Andrew Phillips and Shannon Atkins be ordered to attend the hearing. An order for attendance of Mr Phillips was made. Miss Kerley also sought by way of a Form F52 application requiring production of documents etc. to the Commission, with the Commission issuing such an order on 10 April 2017.

[6] On 20 April 2017, Mr Short of Minter Ellison Lawyers sought permission to appear as a representative on behalf of Viterra.

[7] At the hearing, Miss Kerley objected to the grant of permission to Mr Short on the basis that she would be disadvantaged. The Commission granted permission for Mr Short to represent Viterra pursuant to s.596(2)(a) of the Act noting that Ms Gilbey, Viterra’s HR representative, was appearing as a witness. In order to mitigate any disadvantage, the Commission conducted the hearing by way of a determinative conference.

[8] Ms Alyson Gilbey, Viterra’s Senior HR Business Partner, provided a statement, a number of exhibits and gave evidence at the conference. Ms Gilbey’s evidence is summarised as follows;

• Miss Kerley was employed as a casual employee between 17 September 2012 to 7 April 2013.



• Miss Kerley was employed as a permanent part time employee between 8 April 2013 and 21 July 2015.



• On 15 July 2015, it was agreed between Miss Kerley and Viterra that she would resign from her part time role. A copy of an email exchange between Miss Kerley and Ms Gilbey was provided. It appears that decision was at Miss Kerley’s initiative.



• Miss Kerley was employed as a casual employee between 26 September 2015 and 30 March 2016 during the F15/16 harvest period.



• On 27 May 2016, Viterra (via Harvest Recruitment) sent Miss Kerley an email confirming that her employment had concluded.



• Miss Kerley was employed during the F16/17 harvest period and commenced on 10 September 2016.



• Miss Kerley was dismissed on 10 January 2017.



• The exhibits submitted by Ms Gilbey included;

○ An email chain between Miss Kerley and Ms Gilbey dated 15 and 21 July 2015

○ Payroll records

○ An application for employment from Miss Kerley dated 25 September 2015

○ An email from Harvest Recruitment (on behalf of Viterra) to Miss Kerley dated 27 May 2016

○ An application for employment from Miss Kerley dated 25 July 2016

○ Viterra’s records relating to Miss Kerley

○ Letter of dismissal dated 10 January 2017

[9] Miss Kerley, provided a statement, tendered her payslips and gave evidence. Miss Kerley’s evidence is summarised as follows;

• She did not contest the evidence given by Ms Gilbey.



• Her working pattern did not change over the harvest periods regardless of her employment status as a casual or permanent employee.



• 90% of casuals employed through Viterra Cummins Group return for each harvest, some of which have done so for 20+ years.



• The letter sent out to casuals at the end of each harvest to advise that they have been removed from the payroll system is a falsehood, as employees are invited back to work the next harvest.



• She had an expectation that she would be employed for each harvest.



• She had an expectation that she would be employed in a full time vacancy from January 2017.

[10] The Commission prepared a graph of the hours worked (regardless of whether they were ordinary or overtime hours) by Miss Kerley post her resignation in 2015 based on the payslips provided by Miss Kerley. The graph was supplied to both parties in advance of the hearing. Both parties accepted the graph was a fair pictorial representation of the hours worked by Miss Kerley which is reproduced below;

[11] Mr Andrew Phillips attended the hearing in answer to the order issued by the Commission. Mr Phillips’ evidence was that Miss Kerley was a good employee who, if she applied for a position, would be employed each season at a specified, hard to fill, location to work each harvest. This evidence was not contested.

[12] A review of the graph above indicates that in the period since Miss Kerley’s resignation, she had worked during 2 harvest seasons. There was a 5 month gap in between the F15/16 and F16/17 harvest which could be regarded as 6 months if the single day’s attendance in September 2016 is ignored. I was advised that this was most likely an induction day.

[13] The graph also indicates that Miss Kerley’s hours were irregular from week to week.

[14] When I take into account the evidence that Miss Kerley’s employment was terminated in writing after the F15/16 harvest and she applied for a new position for the F16/17 harvest, I am unable to regard the two employment periods as continuous. Taking into account the irregular pattern of work, I am unable to find that the work was regular and systematic. Even if I accept that the most recent period of harvest employment commenced on 10 September 2016, Miss Kerley had not been employed for 6 months at the time of her dismissal

[15] Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period:

“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.”

[16] Section 383 of the Act sets out the minimum employment period:

“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.”

[17] In the circumstances of this matter, I am satisfied Miss Kerley has not completed the required minimum employment period and therefore is not a person protected from unfair dismissal under s.382 of the Act.

[18] Consequently, the application is dismissed and an Order 1 to this effect will be issued.

COMMISSIONER

Appearances:

A.Kerley the Applicant.

A.Short of Minter Ellison Lawyers on behalf of the Respondent.

Hearing details:

2017.

Adelaide:

26 March.

 1   PR592444

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<Price code C, PR592443>