Mr Andrew Hayes v Melcrest Auto Express

[2013] FWC 2986

[2013] FWC 2986

FAIR WORK COMMISSION

DECISION

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

Mr Andrew Hayes
v
Melcrest Auto Express
(U2013/77)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 17 MAY 2013

Summary: application for an unfair dismissal remedy - s. 394 of the Act - whether minimum period of employment served - whether application allowed within a different period of time - non-responsiveness of Applicant - full bench authority in Re: Sayers - s.587(1) of the Act.

[1] On 11 January 2013, Mr Andrew Hayes (“the Applicant”) made an application under s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy in relation to the decision by Melcrest Auto Express (“the Respondent”) to dismiss him from its employment on 26 December 2012.

[2] The Applicant was employed on 25 May 2012 as an interstate truck driver with the Respondent.

[3] It appears that on 26 December 2012, the Applicant was informed by the Respondent that his services were no longer required owing to alleged damage to a number of vehicles which he had transported at a prior date. The Respondent contends that the reasons for the dismissal were more extensive than this and included conduct by the employee in which he failed to correctly restrain vehicles in accordance with instructions - which resulted in one vehicle coming off the back of the truck while in transport. The Respondent also contends there were a number of other reasons for its decision making, such as unlawful use of the Company truck, unauthorised use of equipment, misuse of a Company telephone, failure to report damage to vehicles, and damage to the interior of the truck.

[4] The Applicant had received, so the Respondent states, a number of warnings in relation to his conduct and the performance of his duties including a final notice in relation to damaging a vehicle and his deficient operational procedures on 13 December 2012.

[5] On 22 December 2012 it was alleged that the Applicant had caused his vehicle’s handrails to come into contact with overhead electrical wires. The wires were said to have been bundled up and thrown on the ground in between other trailers that were parked up. The Respondent took the view that this conduct along with the Applicants apparent failure to inform anyone of the incident was sufficient to provide a valid reason for the Applicant’s dismissal (in its own right let alone in relation to prior conduct and performance issues).

[6] The Applicant was originally represented by a legal practitioner.

[7] A conciliation conference was listed in relation to this application but was adjourned on the basis that the Respondent had indicated it pressed for the resolution of two jurisdictional objections before the matter was further dealt with by the Fair Work Commission.

[8] The first jurisdictional objection that was pressed was that the Applicant had been employed (as a casual employee) for a period less than 12 months, noting that the Respondent claimed to be a small business employer for the purposes of s.23 of the Act. The Applicant, it was claimed, was therefore not an employee who had served the minimum period of employment under s.383 of the Act, and therefore was incapable of making an application for a remedy under s.394 of the Act.

[9] The second objection as pressed by the Respondent related to the application having been made, on its face, outside the time limit stipulated at s.394(2)(a) of the Act (as it was prior to 1 January 2013). I will initially deal with the first objection cited above.

[10] In this respect, s.383 of the Act provides as follows:

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; [...]

[11] The Respondent contends that the Applicant had been employed as and paid as a casual employee and it had been communicated to him that he could not become a permanent employee until such time as he could undertake his duties diligently.

[12] The Respondent also contends, as stated above, that it is a small business employee for the purposes of s.23 of the Act. Section 23 of the Act provides as follows:

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.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated; and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.

[13] At 26 December 2012 the Respondent contends that it employed 13 full-time employees and various other employees in other modes of employment, including the Applicant.

[14] The Respondent also indicates that while the Applicant was dismissed on 26 December 2012, he did not make his application until 11 January 2013. The application is therefore outside the period of time in which an application must be made for the purposes of s.394(2)(a) of the Act as it then was.

[15] It is necessary initially to turn to whether or not the Applicant had served the minimum period of employment as set out at s.383 of the Act. That period is claimed to be 12 months by the Respondent, on the basis that is contends it is a small business employer under s.23 of the Act.

[16] The Respondent provided a statutory declaration by Mr M. Taylor (who is a director for the Respondent) indicating that at the relevant time - which is the date the Applicant’s dismissal took effect - the Respondent employed fewer than 15 employees. The statutory declaration also provided a payroll activity statement which set out the number of employees paid during the week 21 December 2012 to 27 December 2012. That payroll activity summary supports the matters declared in Mr Taylor’s statutory declaration.

[17] The Respondent also claimed that the Applicant was employed between the 25 May 2012 and 26 December 2012.

[18] An additional statutory declaration sought from the Respondent declared that the Respondent’s business had no associated entities for the purposes of s.23(3) of the Act.

[19] On the materials before me, which include the statutory declaration referred to above and the payroll summary as annexed to that statutory declaration, the Applicant had not served the minimum period of employment as set out at s.383 of the Act (see above).

[20] The Applicant has not challenged this claim by the Respondent (despite being given ample opportunity to do so) and I am therefore able to accept the Respondent’s claim as to the Applicant’s period of employment and the composition of its workforce as representing the factual situation as it was at the relevant time (of the Applicant’s dismissal).

[21] Having so found, I nonetheless note that that the Applicant has not taken the opportunity to press his application. The Applicant was provided an opportunity to respond to the materials as lodged by the Respondent. But no response has been forthcoming in that regard.

[22] All that has been received by the Commission is correspondence dated 10 April 2013 which comprised information from the Applicant’s legal practitioner that he was no longer representing the Applicant.

[23] The Applicant was contacted on 17 April 2013 by e-mail and again queried as to whether he wished to respond to the materials as lodged by the Respondent. The Applicant was informed that if he did not do so the matter would be determined off the documents and without recourse to a hearing. The Applicant was given until 5 PM on 24 April 2013 to respond.

[24] A copy of this correspondence was also directed to the Applicant at the address provided in his application by express post.

[25] No response was received from the Applicant by 5 PM on 24 April 2013 (or at any other time).

[26] A further communication via e-mail and by express post was directed to the Applicant on 1 May 2013. The Applicant was given an opportunity to provide some indication in some manner or form by close of business 3 May 2013 as to his response in relation to the Respondent’s materials.

[27] No response was received by this deadline.

[28] I note in this matter that the Respondent has on its face a substantive defence to the claim made against it by the Applicant.

[29] It appears to me on balance, therefore, that the application should also be dismissed under s.587(1) as it has been demonstrated that the Applicant has no interest in prosecuting the claim that he has originally initiated. The claim by definition must be of a frivolous nature or else merely vexatious in its motivation if the Applicant has no intention to pursue the substantive merits of the case or its jurisdictional foundation.

[30] This approach is generally consistent with the approach of the Full Bench in Re: Sayers, 1 in which an applicant’s claim was dismissed for the reasons he did not appear at the substantive hearing.

Conclusion

[31] For all these reasons the application before me as made under s.394 of the Act is dismissed.

[32] Putting aside the Applicant’s failure to press the application, I add only that as the application before me could never be taken to be an application because the Applicant has not served the minimum period of employment, it has not been necessary for me to consider whether I should allow the application in a different period of time under s.394(2)(b) of the Act, which was the Respondent’s second objection (see above).

SENIOR DEPUTY PRESIDENT

 1   L. Sayer v Melsteel Pty Ltd[2011] FWAFB 7498.

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