Mr Byron Potts v Cape Australia Onshore Pty Ltd T/A Cape Australia Holdings Pty Ltd

[2020] FWC 2291

[2020] FWC 2291

FAIR WORK COMMISSION

DECISION

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

Mr Byron Potts
v
Cape Australia Onshore Pty Ltd T/A Cape Australia Holdings Pty Ltd
(U2019/2371)

DEPUTY PRESIDENT ASBURY BRISBANE, 1 MAY 2020

Application for an unfair dismissal remedy - jurisdictional objection – minimum employment period not met – application dismissed.

[1] Mr Byron Potts (the Applicant) applies to the Fair Work Commission (the Commission) for an unfair dismissal remedy in respect of his employment by Cape Australia Onshore Pty Ltd (the Respondent). The Respondent objects to the application on the basis of the assertion that the Applicant has not completed the minimum employment period as required by s. 382(a), s. 383(a) and s. 384 of the Fair Work Act 2009 (the jurisdictional objection).

[2] In his Form F2, the Applicant states that he was employed by the Respondent from 12 March 2017 until the termination of his employment on 9 February 2019. While there is no dispute regarding the relevant termination date, the Respondent submits that the Applicant’s current period of casual employment was from 7 February 2019 until his dismissal, that is, a period of two days.

[3] Directions were issued for the filing of materials in relation to the jurisdictional objection.

[4] The Respondent failed to file its material by 24 April 2019 as directed; its material was received to Chambers on 2 May 2019.

[5] The Applicant did not comply with the Directions and failed to file any material in response to the jurisdictional objection. I caused correspondence to be sent to the Applicant stating that his material had not been received and giving the Applicant until 4.00pm on the following day to file his material. The correspondence also stated that if no material was received by that time, it would be considered that the Applicant did not intend to file any material and I would proceed to determine the jurisdictional objection based on the material currently before the Commission, and that a decision would issue without further notice.

[6] No material was received from the Applicant or any other correspondence. Accordingly, I have proceeded to deal with the jurisdictional objection based on the material before me. No objection was raised to this course by the Respondent.

LEGISLATION

[7] Section 382 of the Act provides 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.”

[8] As to the minimum employment period, s.383 relevantly provides:

“383 Meaning of “minimum employment period:

(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.”

[9] Further, s.384 provides:

“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.”

RESPONDENT’S EVIDENCE AND SUBMISSIONS

[10] In its F3 Employer Response, the Employer submits that the Applicant was employed from 7 February 2019 until the termination of his employment on 9 February 2019. Accordingly, it objects to the application on the basis that the Applicant was only employed for two days and does not meet the minimum employment period prescribed under the Act.

[11] The Respondent submits that the Applicant was first employed on 12 March 2017 until his dismissal on 18 July 2018. The Applicant was a casual employee however, was terminated due to disabling a smoke alarm and smoking in his room, which was a serious breach of the Olympic Dam accommodation rules.

[12] The Applicant commenced employment with the Respondent again on the 7 February 2019 as a casual employee until his termination two days later on 9 February 2019. The Respondent submits it does not hold causal employees position open for longer than 90 days if they have not been engaged, and that the Applicant’s position was not held open as the Applicant was terminated in July 2018 for serious misconduct.

[13] The Respondent also asserts that the Applicant was required to resubmit and complete the new starter paperwork when he recommenced with the Respondent in February 2019. The Respondent also filed the Applicant’s contract of employment signed by the Applicant on 6 February 2019. The contract provides the Applicant’s commencement date with the Respondent was 7 February 2019 and that the Applicant was engaged as a casual.

APPLICANT’S EVIDENCE AND SUBMISSIONS

[14] The Applicant did not file any submissions or evidence in relation to the jurisdictional objection. The Applicant states in his Form F2 application that he was called into his Superintendent’s office on 8 February 2019, and advised that he was being given a “first and final warning” for an incident that occurred 7 months prior. The Applicant refers to events of 18 July 2018 and alleged beer bottles left outside his bunker.

[15] The Applicant states he was unsure why the warning was given, noting that he was subject to a “new contract” which commenced on 7 February 2019.

[16] The Applicant states that on the morning of 9 February 2019, he was asked to attend a meeting in the Superintendent’s office and was advised he was being let go. He was not provided a reason.

[17] The Applicant therefore submits that his dismissal of 9 February 2019 was unfair as he has a great standing history with the company and was not guilty of any misconduct.

CONSIDERATION

[18] This decision concerns a determination of whether the Applicant has met the minimum employment period required to bring an application for unfair dismissal remedy.

[19] It is not in dispute that the Applicant’s previous period of employment came to an end on 18 July 2018.

[20] Further, the Applicant concedes, as noted above, that he was subject to a new contract which commenced on 7 February 2019. As previously stated, the Applicant has not advanced any evidence or material to demonstrate that his employment with the Respondent continued from 18 July 2018 when he was first terminated by the Respondent, to when he was engaged as a casual on 7 February 2019, or that in any circumstances he has served the minimum employment period required by s.382(a) of the Fair Work Act 2009.

CONCLUSION

[21] The Applicant has not met the minimum employment period as required by s. 382(a), s. 383(a) and s. 384 to make an application for unfair dismissal remedy. The application must be dismissed. An Order to that effect is to issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR718751>