Mr Alex Brown v The Trustee for Belgravia Leisure Unit Trust T/A Ferny Hills Swimming Pool

[2019] FWC 3408

[2019] FWC 3408

FAIR WORK COMMISSION

DECISION

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

Mr Alex Brown
v
The Trustee for Belgravia Leisure Unit Trust T/A Ferny Hills Swimming Pool
(U2018/10287)

DEPUTY PRESIDENT ASBURY BRISBANE, 10 JULY 2019

Application for an unfair dismissal remedy – Jurisdictional objection – Minimum employment period not met – Application dismissed.

BACKGROUND

[1] This decision concerns an application by Mr Alex Sandy Brown (the Applicant) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by The Trustee for Belgravia Leisure Unit Trust T/A Ferny Hills Swimming Pool (the Respondent). The application was filed in the Commission on 5 October 2018. The Respondent objected to the application on a number of grounds including: the Applicant was not an employee at the time he asserts he was dismissed; the Applicant had not completed the required minimum period of employment as required by s. 382; the Applicant was not dismissed; the Application was not made within the time required in s. 394(2); and the Application was barred by s. 725 of the Act.

[2] Before the jurisdictional objections were determined, the Respondent made an application under s. 399A of the Act seeking that the application be dismissed on the basis of failure on the part of the Applicant to comply with Directions of the Commission. The Respondent also contended that the Commission should exercise power under s. 587 of the Act to dismiss the application on the grounds that it: is not made in accordance with the Act; is frivolous or vexatious; or has no reasonable prospects of success.

[3] In a Decision issued on 18 April 2019 1 I refused the s. 399A application and declined to exercise the power in s. 587 of the Act to dismiss the Applicant’s unfair dismissal application. I also decided that the Applicant’s unfair dismissal application was not caught by s. 725 of the Act and that the Respondent’s objection on that ground should also be dismissed.

[4] I also made the following observations in relation to the material on the file as it relates to the issue of whether the Applicant had completed the minimum employment period as required by s. 383 of the Act.

•  The Applicant asserted in his general protections application made on 13 June 2018 that he commenced employment on 2 January 2018 and was dismissed by the Respondent on 30 May 2018;

•  The Applicant has not worked for the Respondent since 29 April 2018; and

•  The Applicant now asserts in his unfair dismissal application that he commenced employment with the Respondent on 2 January 2018 and was dismissed on 18 September 2018”. 2

[5] Further to the above, I noted that for the Applicant to make an unfair dismissal application, he must have completed a minimum employment period of six months. As a casual employee, the Applicant must also establish that he was employed on a regular and systematic basis and that during the period as a casual employee he had a reasonable expectation of continuing employment by the Respondent.

[6] In my decision issued on 18 April 2019, I also expressed the preliminary view that the Applicant had not met the minimum employment period. However, I allowed the Applicant a final opportunity to present evidence and make submissions on this issue. In particular this was to enable the Applicant to present documentary evidence in the form of emails that he had not provided with his earlier material. A further hearing was held on 31 May 2019 at which the Applicant was permitted to tender any additional documents he sought to rely on and to provide oral evidence to establish that he had completed the minimum employment period of six months. This decision deals with that issue.

LEGISLATION

[7] Relevant legislative provisions are 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.”

“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

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”

EVIDENCE AND SUBMISSIONS

[8] It is not in dispute that the Respondent employs 4,000 staff and is not a small business employer. 3Accordingly, the Applicant must have completed a minimum period of employment of six months to be a person protected from unfair dismissal for the purposes of making an application under s. 394 of the Act.

[9] I set out the history of this matter at some length in my Decision issued in April 2019. Relevantly, the Applicant was employed by the Respondent as a casual lifeguard under a written contract of employment which he signed on 2 January 2018. The contract of employment provides that the hours of duty will be variable as required by the Company. The Respondent asserts that the Applicant was part of a casual pool of employees who were called to work on an “as needed basis.” The last shift that the Applicant worked was on 29 April 2018.

[10] On 4 May 2018 the Applicant sent correspondence to the Centre Manager at the Ferny Hills Pool asking to be updated on current and future rosters past and indicating availability for work on certain days. On 4 May 2018 the Centre Manager responded to the Applicant stating that from 6 May 2018 the pool would not be open on Sundays until September and that for the last three weeks that the full facility would be open the shifts would be covered by permanent staff. That email also noted the Applicant’s availability for work on particular days and stated that he would be advised if anything became available.

[11] On 30 May 2018 an email attaching a letter under the signature of the State Manager of the Respondent Mr Daniel Cullen dated 24 May 2018 was sent to the Applicant. The letter was in the following terms:

“Dear Alex

Your Casual Employment with Belgravia Health & Leisure Group Pty Ltd

On 2 January 2018 you signed a Casual Contract of Employment to work with Belgravia Health & Leisure Group Pty Ltd (“Belgravia”) at our Ferny Hills Swimming Pool, on a casual basis, effective from 2 January 2018.

As you are aware, Ferny Hills Swimming Pool has a 50m Outdoor Pool and a 25m Indoor Pool. The 50m Outdoor Pool only operates seasonally, 7 days per week, between the months of September and May of each year. You were contracted to work at Ferny Hills Swimming Pool as a casual Lifeguard when business needs arose. In your case, our business needs led us to employ you, on a casual basis, on Sundays at the Outdoor Pool. To be clear, casual employees have no guaranteed hours of work and usually work irregular hours (but can work regular hours) and this is the basis on which you were employed.

The 25m Indoor Pool is now staffed by ongoing employees of Belgravia and operates year around (except Sundays between June and August each year).

The last casual shift you worked at Ferny Hills Swimming Pool was on Sunday 29 April 2018. While the Outdoor Pool continued to operate until the last Sunday in May 2018, Belgravia had no business need to call on you to work beyond 29 April 2018.

Since 29 April 2018 (the day of your last shift) we have had no business need to call on you to attend work on a casual basis, and we currently do not have any opportunities we could offer you for further casual work.

I confirm that you ceased to be an employee of Belgravia at the end of your casual shift on 29 April 2018. (Emphasis added)”

[12] The Applicant filed an application under s. 365 of the Act on 13 June 2018, seeking that the Commission deal with a general protections dispute involving his dismissal. The Applicant asserted that he was dismissed on 30 May 2018 when he received the letter sent to him by the Respondent. The Applicant also asserted that he was dismissed for exercising a workplace right to make complaints about the conduct of his colleagues. In its Response to the application the Respondent made various contradictory assertions including that the Applicant was not dismissed and that the letter to the Applicant sent on 30 May was sent so that there would be no doubt in the Applicant’s mind that he had ceased to be an employee of the Respondent on the date of his last shift – 29 April 2018.

[13] The matter proceeded to conciliation before a Fair Work Commission Conciliator on 23 July 2018 and a settlement agreement was reached. Relevantly the settlement agreement indicates that the Applicant alleged in his general protections application that the Respondent had dismissed him in breach of the general protections provisions of the Act and contains the following terms:

“3.1. The Respondent will within 7 days of the Applicant and the Respondent signing the terms of settlement provide to the Applicant, on company letterhead, a letter which confirms that the Applicant remains in the Respondent’s casual pool of employees, and confirms that should the Respondent have a business need to do so it will contact the Applicant to ascertain the Applicant’s availability and acceptance for work as a casual life guard, and confirms that the Respondent will consider the Applicant for casual reception and swim instruction work should a suitable opportunity arise.

Release

3.2. On the Respondent complying with clause 3.1 above, the Applicant releases and forever discharges the Respondent, its directors, employees, assignees or successors from any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or connected with the Applicant’s employment with the Respondent, including but not limited to the cessation of the employment.

3.3. The Respondent releases and forever discharges the Applicant from any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or connected with the Applicant’s employment with the Respondent, including but not limited to the cessation of the employment.”

[14] The material the Applicant filed for the hearing on 31 May 2019 comprises emails and a submission in relation to the emails. The emails evidence the following matters. On 31 August 2018, the Applicant sent an email to Mr Cullen and another of the Respondent’s managers in the following terms:

“Hello Dan and Michael,

I see that there is a Belgravia advert on seek.com.au advertising for Lifeguards and Swim Teachers at Ferny Hills pool ( attached ) ……

this would indicate there is work available that is suitable for me.

I understand that Ferny Hills manager Michelle was on maternity leave, so I am not sure who to contact about shifts…..

can you let me know who is the current Ferny Hills Manager, and their email

Thanks,

Alex Brown”

[15] On 31 August 2018 Mr Cullen responded to that email stating:

“Hi Alex

Thanks for your enquiry, Michelle is still the manager at Ferny Hills, send her through you [sic] availability.

Thanks,

Dan Cullen Queensland State Manager”

[16] The Applicant responded to that email on 31 August 2018 stating that he had heard that the Manager at Ferny Hills pool was going on leave for a few months and that this is why he contacted Mr Cullen. The email states that the Applicant will email the Ferny Hills Pool Manager.

[17] The Applicant submits that he was not informed in this email exchange that he was not an employee of the Respondent, nor was he informed he needed to reply to the seek.com.au advertisement. He submits that this is indicative that he remained an employee at this time. The Applicant also tendered correspondence with the Ferny Hills Pool Manager dated 31 August and 2 September 2018 wherein he stated his availability during September and pointed out that he had undertaken duties including reception work and sale of food and goggles at the Sandgate Pool in the previous season.

[18] The Applicant submits that he also received an email from the Respondent on 4 September 2018, which was addressed to “Belgravia staff”. That email tendered by the Applicant appears to be a newsletter updating staff about various activities undertaken by the Company and staff including opening of new facilities, management conferences and other events. The Applicant submits that the fact that he received a Belgravia staff email on 4 September 2019 indicates that he was employed by the Respondent.

[19] On 6 September 2018 at 1.55 pm the Applicant again emailed Mr Cullen stating that he had emailed the Ferny Hills Pool Manager “last week” and had not heard back from her and querying whether the Manager was on leave. At 6.12 pm on 6 September 2018 the Ferny Hills Pool Manager responded to the Applicant by email in the following terms:

“Hi Alex

Thank you for your emails and for providing your availabilities.

At present shifts will continue to be covered by permanent staff.

As we get closer to Summer we will evaluate the need of extra shifts.

I have noted you availability and will let you know if anything becomes available.”

[20] On 7 September 2018 the Applicant responded as follows:

“Hello Michelle

Thanks for your reply.

Can you clarify when “closer to summer” I might get some shifts?

The weather is warming up and I am keen to get back to work.”

[21] On 14 September 2018 the Applicant corresponded by email with Mr Cullen stating:

“Hello Dan

I have just updated my Pool Lifeguard Award Thursday (attached) and am keen to get back to work…..can you tell me how things are progressing towards that?

At the moment I am available 7 days a week from 7.00 am (except not Sept 19 nor Oct 12)”

[22] On 18 September 2018 Mr Cullen sent an email to the Applicant in the following terms:

“Hi Alex

Thanks for your confirmation of your availability for shifts at Ferny Hills, Michelle has received this and you are in the pool of casuals that we will roster for shifts as required. However I will say that trying to force yourself into shifts is not the best way, in our view, to get shifts. Your behaviour including continued negativity towards the manager and workplace only makes it more difficult for us to find suitable work to offer you. I ask that you take a step back and reflect on how you are coming across to us. We will only offer you casual work if we have work available and we feel completely comfortable that you will discharge your duties more effectively than others who may also be available to do the casual work we require to be done.

Regards,

Dan Cullen Queensland State Manager”

[23] The Applicant submits that this was a clear statement by the Queensland State Manager that he remained an employee of the Respondent at the time of this email, and that at this time he had a reasonable expectation of continuing employment by the Respondent. He therefore submitted that his employment had covered the period of 2 January 2018 to 18 September 2018, which exceeds the six months minimum prescribed by the Act.

[24] In regard to “regular and systematic employment”, the Applicant submits that it was “regular” for the Respondent’s business to be slower over the winter period and thus there was less work available. He also submits that there was a regular pattern of an increase in work beginning in September as the weather became warmer, which is why the Applicant made contact with the Respondent in late August/early September regarding shift availability. The Applicant submits this would also provide an explanation for the Respondent’s Seek advertisement published in late August, as more work became available and there was a need for increased staff.

[25] The Applicant submits that as he was not provided with shifts as the weather warmed up in September 2018, it was at this time that his termination was effected. The Applicant also submits that September 2018 should be taken as the relevant period of his termination, and in support of this submission he referred to the Respondent’s F3 Employer Response to his unfair dismissal application, filed 15 October 2018, which provided at question 1.3:

“1.3 What date did you notify the Applicant of their dismissal?

1. The Applicant was not dismissed by the Respondent and was never notified of a dismissal by the Respondent.”

[26] In reply, the Respondent submits that the Applicant has failed to provide any “definitive and unambiguous evidence”, such as payslips, to establish that there was an employer/employee relationship between the Applicant and Respondent since 29 April 2018. The Respondent also submits that it was not disputed that the Applicant had not worked for the Respondent since 29 April 2018, and therefore the Applicant could not have been an employee of the Respondent at 18 September 2018.

[27] The Respondent maintains its objection to the application, on the basis that the Applicant had not met the minimum employment period required to bring an unfair dismissal application.

CONSIDERATION

[28] By virtue of s. 384 of the Act, an employee’s period of employment with an employer at a particular time is the period of continuous service that the employee has completed with the employer at that time as an employee. The terms “service” and “continuous service” are defined in s. 22 of the Act with reference to employment and absence from employment which may or may not break the period of continuous service. It is also the case that unfair dismissal provisions are concerned with the ending of the employment relationship rather than the contract of employment.

[29] In the present case, the Respondent’s often contradictory position in relation to the Applicant’s general protections and unfair dismissal applications have not been of assistance in the determination of the disputed matters. Further, the failure of the Respondent to clearly articulate the Applicant’s employment status to him at various stages in the communication leaves much to be desired. On the other hand, I am also of the view that the Applicant has sought to adapt the inconsistencies and lack of clarity on the part of the Respondent to suit his case.

[30] However, regardless of the positions adopted by the parties, and the lack of clarity, I am required to determine the jurisdictional objection on the facts as they emerge from the evidence before me. After considering the evidence I have concluded that the employment relationship between the Applicant and the Respondent ended on 30 May 2018 when the Respondent wrote to the Applicant by email, informing him that he had ceased to be an employee on 29 April 2018 when he worked his last shift.

[31] Notwithstanding my view that this was not an appropriate or reasonable manner in which to terminate the Applicant’s employment, the fact remains that this is what the Respondent did. I am also of the view that the termination of employment did not operate until the Applicant received the email. However, once it was received the Applicant can have been in no doubt that his employment had been terminated. That this was the case is evidenced by the fact that he made an application for the Commission to deal with a dispute involving dismissal, as a result of the letter of 30 May 2018 and thereby indicated his understanding that his employment had been terminated.

[32] At that point the Applicant had not completed a minimum employment period of six months with the Respondent and was not eligible to make an unfair dismissal application. I do not accept that anything that transpired after 30 May 2018 re-established the employment relationship between the Applicant and the Respondent. The terms of settlement document signed by the parties does not re-establish an employment relationship. Rather it confirms that the Applicant is in a pool of casuals and may be offered future engagements should suitable opportunities arise. If the letter confirming this was ever provided to the Applicant in accordance with the terms of settlement it is not in evidence. However even if it was provided, a letter in the terms set out in the settlement document would not re-establish an employment relationship.

[33] The subsequent emails between the parties do not evidence that an employment relationship was re-established between them. Rather, the Applicant’s emails evidence that he was seeking further shifts and to return to work and the Respondent’s emails make no offer. To the contrary, the email correspondence from Mr Cullen and from the Ferny Hills Pool Manager is effectively fobbing off the Applicant. I also do not accept that the receipt by the Applicant of a staff bulletin establishes that there was an employment relationship in existence. It is equally probable that it was sent to a group of persons who included casuals in the pool to whom the Respondent may or may not have offered work. While I do not condone the Respondent’s behaviour in fobbing off the Applicant, I am unable to accept that an employment relationship was in effect or had been re-established by this correspondence. The fact that the Applicant may have been misled by the Respondent’s conduct is also not sufficient to establish an employment relationship. My view about the relevance of the Applicant’s reasonable belief in relation to this correspondence may have been different if I was dealing with an extension of time application in circumstances where it was not in dispute that the Applicant had completed the required minimum employment period. In the present case, the Applicant’s belief about his status – reasonable or otherwise – is not determinative of whether he has completed the minimum employment period.

[34] I do not accept that the Applicant’s experience of custom and practice in the industry generally is evidence that his employment relationship with the Respondent remained on foot after 29 May 2018. The Applicant’s experience was not with the Respondent and cannot override the clear terms of the letter of 29 May 2018. This is not a case where the Applicant had been regularly and systematically employed over a number of summers so that he could have held a reasonable expectation that this would continue and in fact the employment relationship did not continue past 29 May 2018.

CONCLUSION

[35] For these reasons the Applicant has not completed the relevant minimum employment period and is not a person protected from unfair dismissal. Accordingly the Applicant cannot make an application under s. 394 of the Act for an unfair dismissal remedy and his application must be dismissed. An Order to that effect will issue with this Decision

DEPUTY PRESIDENT

Appearances:

Mr A Brown on his own behalf.

Mr M Farkas on behalf of the Respondent.

Hearing details:

By Telephone.

31 May.

2019.

Printed by authority of the Commonwealth Government Printer

<PR708394>

 1   [2019] FWC 2181.

 2 Ibid at [60].

 3 Respondent’s Outline of Argument filed 24 January 2019 at [29].