Mr Daniel Whipps v Australian Lesiure and Hospitality Group Pty Ltd T/A ALH Group Ltd

[2017] FWC 1990

[2017] FWC 1990

FAIR WORK COMMISSION

DECISION

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

Mr Daniel Whipps
v
Australian Lesiure and Hospitality Group Pty Ltd T/A ALH Group Ltd
(U2016/7996)

COMMISSIONER HUNT BRISBANE, 7 APRIL 2017

Application for relief from unfair dismissal.

[1] Mr Daniel Whipps has applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by Australian Leisure and Hospitality Group Pty Ltd T/A ALH Group Ltd (ALH Group). Mr Whipps alleges the termination of his employment was harsh, unjust or unreasonable.

[2] ALH Group has filed a jurisdictional objection on the basis that Mr Whipps is not a person protected from unfair dismissal as he has not completed the minimum employment period with ALH Group for the combined purposes of ss. 382(a) and 383 of the Act, that being a period of six months.

[3] On 16 March 2017, I issued a decision 1 (the Stay Decision) to stay Mr Whipps’ unfair dismissal application pending a decision by the Queensland Industrial Relations Commission (QIRC). Mr Whipps had appealed the decision of the Workers’ Compensation Regulator to refuse his application for workers’ compensation (the Appeal).

[4] On 6 April 2017, the QIRC handed down its decision in relation to the Appeal. The QIRC ordered the Appeal be dismissed. 2 As a result the stay is lifted and ALH Group’s jurisdictional objection can now be determined.

Facts relating to the minimum employment period

[5] The pertinent facts relating to Mr Whipps’ period of service with ALH Group are uncontested, and are as follows.

[6] Mr Whipps commenced employment with the ALH Group on 30 November 2015 and his employment was terminated on the employer’s initiative on 7 June 2016. Mr Whipps was in the employ of ALH Group for a total period of 6 months and 8 days.

[7] Mr Whipps was present at work between the period of 30 November 2015 and 19 February 2016. He was then absent on various forms of paid leave between the period 20 February 2016 and 6 March 2016. This is a period of 13 weeks and 4 days, a period contended by ALH Group as the only period which would count as service for the purposes of the minimum employment period required to invoke the jurisdiction of the Fair Work Commission, that being a period of six months.

[8] Thereafter, between 7 March 2016 and 7 June 2016, Mr Whipps was not at work as he was on unpaid sick leave. Mr Whipps was absent during this period due to a medical condition for which he made a claim under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the Workers’ Compensation Claim).

[9] Mr Whipps’ Workers’ Compensation Claim was rejected by the Workers’ Compensation Regulator, a decision upheld on appeal by the QIRC.

Legislation

[10] Section 22 of the Act provides the meaning of service:

‘General meaning

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(2) The following periods do not count as service:

(a) any period of unauthorised absence;

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down underPart 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.

(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.’

[11] Sections 382(a) and 383 of the Act relevantly provide 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

…

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.’

Submissions

[12] ALH Group urges the Commission to determine Mr Whipps’ absence between 7 March 2016 and 7 June 2016 was a period of unpaid leave pursuant to s.22(2)(b), and therefore an excluded period pursuant to s.22 of the Act. Accordingly, his service with ALH Group would be only 13 weeks and 4 days, well short of the required period of six months.

[13] Mr Whipps’ submission is that the regulations (as referred to in ss. 22(2)(b)(iii) and (c)) provide that his period of unpaid absence will count as service for the purposes of the minimum employment period (regardless of whether his Workers’ Compensation Claim is accepted or not). Mr Whipps did not specify which regulation he relied upon to support his submission.

Consideration

[14] Given there are no material facts in dispute about Mr Whipps’ length of service with ALH Group, I am satisfied a decision is capable of being reached with respect to the jurisdictional objection ‘on the papers’. I do not consider it necessary to conduct a Hearing as the parties have already providing detailed written submissions.

[15] While I had indicated in the Stay Decision that the application would be listed for a Mention on receipt of the Appeal decision, the Appeal decision did not favour Mr Whipps, and I am satisfied that a Mention would not yield any benefit.

[16] I reject Mr Whipps’ submission that his period of absence counts as service as it was a ‘kind prescribed by the regulations.’ No regulations have been made pursuant to ss. 22(2)(b)(iii) or (c). 3

[17] I have taken into consideration the authorities in Workpac Pty Ltd v Bambach 4 and Wales v 3 Point Motors Pty Ltd T/A 3 Point Motors5 and I am satisfied that Mr Whipps’ unpaid periods of absence do not count as service for the purposes of the minimum employment period.

Conclusion

[18] I find that Mr Whipps’ period of service for the purposes of ss. 382(a) and 383 of the Act is no more than 13 weeks and 4 days.

[19] Mr Whipps has not met the minimum employment period and his application must be dismissed for want of jurisdiction. Accordingly, I uphold ALH Group’s jurisdictional objection.

[20] Mr Whipps’ unfair dismissal application is dismissed.

COMMISSIONER

 1   Whipps v Australian Lesiure and Hospitality Group Pty Ltd[2017] FWC 1477].

 2   Whipps v Workers’ Compensation Regulator [2017] QIRC 029 at [120].

 3   Workpac Pty Ltd v Bambach [2012] FWAFB 3206 at [29].

 4   [2012] FWAFB 3206.

 5   [2012] FWA 3817.

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