Miss Andree Holmes v Ozjet Airlines Pty Ltd
[2009] FWA 938
•6 NOVEMBER 2009
[2009] FWA 938 |
|
DECISION |
Fair Work Act 2009
s.394 – Application for unfair dismissal remedy
v
Ozjet Airlines Pty Ltd
(U2009/10609)
COMMISSIONER WILLIAMS | PERTH, 6 NOVEMBER 2009 |
Termination of employment.
[1] This is an application by Andree Holmes made under section 394 of the Fair Work Act 2009 (the Act). The named respondent is Ozjet Airlines Pty Ltd (Ozjet).
[2] The matter could not be resolved in an initial conciliation conference and has been referred to myself.
[3] There is an initial matter to be considered before I consider the merits of the application. That is whether the applicant was protected from unfair dismissal. See section 396 and 382 of the Act.
[4] A Form F3 was lodged which explains the objection by the respondent.
[5] The respondent says that the applicant has incorrectly stated that employment commenced on 15 October 2007. That the respondent says is the date on which the applicant commenced her first employment with Ozjet. However Ozjet was insolvent and placed in administration in May 2009. The administrator terminated the employment of all employees including the applicant by reason of redundancy in May/June 2009. Next Strategic Airlines Pty Ltd acquired Ozjet through a Deed of Company Arrangement and then offered some former employees of Ozjet, including the applicant, new contracts of employment. It is submitted that the applicant's service under the new contract commenced only on 6 July 2009. It is agreed that the applicant was terminated two days later on 8 July 2009.
[6] To quote directly from the Form F3
“OzJet Airlines Pty Ltd was not required to provide the applicant with reasons for her dismissal as the decision was taken to terminate her employment during the three-month probation period. The applicant’s employment contract with OzJet Airlines Pty Ltd clearly set out that her employment was subject to a three-month probation period, during which time her employment may be terminated.”
[7] The respondent objects to this matter on the basis that it is not within jurisdiction because the applicant was not protected from unfair dismissal.
[8] Both parties have provided the tribunal with comprehensive written submissions which I have considered.
[9] The respondent says the applicant's first period of employment with Ozjet terminated on 17 June 2009 and therefore the Fair Work Act 2009, which did not come into effect until 1 July 2009, does not apply. Rather confusingly the respondent then argues that under section 638 of the Workplace Relations Act 1996 the applicant is excluded from making an application for unfair dismissal because her second period of employment which commenced on 6 July 2009 (although the respondent says that was with Strategic Airlines Pty Ltd not with Ozjet) and was terminated on 8 July 2009, was expressly subject to a three-month probationary period. So it is said by virtue of section 638 of the Workplace Relations Act 1996 the applicant being employed on a probationary basis at the time of her termination is excluded from making a claim for unfair dismissal.
[10] The applicant however says that the respondent has misconstrued the identity of the applicant’s employer and that at all times the employer both for the first and second period of employment was Ozjet. Next it is said that there is no dispute that the second period of employment was terminated on 8 July 2009 and so the applicable legislation is the Fair Work Act 2009. Consequently it is argued that the respondent’s objection based on any provisions of the Workplace Relations Act 1996 must be dismissed.
[11] It is further submitted by the applicant that for the purposes of the minimum employment period which in this case would be six months for the purposes of section 382 and 383 of the Act the two periods of employment are continuous service. Reference is made to section 311 of the Act however in my view the applicable provisions also include those dealing with the meaning of service and continuous service set out in section 22 of the Act.
Consideration
[12] The Letter of Offer of Continued Employment dated 3 July 2009 given to the applicant states as follows:
“Dear Andree,
Letter of Offer of Continued Employment
We are pleased to offer you a letter or offer of continued employment with OzJet Airlines Pty Ltd (“the Company”).
In this letter of offer the Company together with each of Strategic Aviation Group Pty Ltd, Strategic Aviation Pty Ltd, Strategic Airlines Pty Ltd, Strategic Crewing Resources Pty Ltd and any of their presently existing or future related bodies corporate (as those terms are defined in the Corporations Act 2001 (Cth)), shall be known as the Strategic Group of Companies (“the Group”).
The terms of this Letter of Offer are as follows:
1. Position
The position is the position title set out in the schedule attached to this Letter of Offer. Your duties and responsibilities are those that relate to the position title set out in the schedule attached to this Letter of Offer together with such additional duties and responsibilities as required by the Company from time to time, provided that such duties and responsibilities are reasonably within the scope of your skills and capabilities. Those duties and responsibilities may be required to be provided to any member of the Group or any customer of any member of the group as directed by the Company from time to time.
………….
5. Date of commencement
Your employment with the Company will commence on the date set out in the Schedule attached to this Letter of Offer which is the date of commencement of employment with OzJet.
………………….”
[13] The letter is on “Strategic” letterhead and has been signed as accepted in numerous places by the applicant and apparently a representative of the Company.
[14] Having reviewed this document and the other information provided and the submissions of both parties my conclusion is that for both periods of employment the applicants employer was Ozjet Airlines Pty Ltd. There is no basis to conclude as the respondent argues that any other of the “Strategic Group of Companies” was the applicant’s employer.
[15] Next I am satisfied that because the date of the termination complained of, 8 July 2009, was after 1 July 2009 the Workplace Relations Act 1996 has no application to this matter. Specifically section 638 of that legislation does not exclude this application being made.
[16] The remaining question then is whether the applicant had completed the requisite minimum employment period at the time of the termination on 8 July 2009.
[17] For there to be a transfer of business within the meaning of the Act there must be a transfer of business from the old employer to “another employer (the new employer)” (see s. 311(1)). Similarly for there to be a transfer of employee there must be two different entities, the “old employer” and the “new employer”.
[18] In this case as the applicant has argued and I have agreed there has only ever been one entity that employed the applicant for both periods of employment, namely Ozjet. The fact that through the Deed of Company Arrangement Strategic Airlines Pty Ltd acquired Ozjet does not alter the fact that the employing entity has always been Ozjet.
[19] In this case there has not been a transfer of business nor a transfer of employee from a first employer to a second employer (section 22 of the Act). There has only been one employer albeit with two periods of employment.
[20] I am not satisfied that there has been a transfer of business and/ or a transfer of employment. Consequently the two periods of employment are not, within the terms of s. 22, continuous service.
[21] Therefore at the time of termination, 8 July 2009, the applicant had been only employed for two days. The applicant had not completed a period of employment with Ozjet of at least the minimum employment period within the meaning of s.383 and 384. Accordingly the applicant is not protected from unfair dismissal within the meaning of s. 382 so this application must be, and is, dismissed.
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