Mr Garry Keith Druett v Integrated
[2010] FWA 8402
•29 OCTOBER 2010
[2010] FWA 8402 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Garry Keith Druett
v
Integrated
(U2010/11729)
COMMISSIONER CAMBRIDGE | SYDNEY, 29 OCTOBER 2010 |
Unfair dismissal - jurisdictional objections - application defunct - casual employment not regular and systematic - no reasonable expectation of continuing employment - matter dismissed.
[1] This matter relates to an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The application was lodged at Sydney on 16 April 2010. The application was made by Gary Keith Druett, (the applicant) and named as respondent employer(s) “Chandler McLeod/Integrated-On behalf of Clients such as Kirin’s Holdings”.
Procedural Background
[2] The application was the subject of proceedings before Thatcher C in matter numbered U2010/8055. The application was the subject of a Decision 1 issued on 18 August 2010. It is relevant to note in particular, the contents of paragraphs [2] and [38] of the Decision of Thatcher C wherein it was stated:
“[2] Whilst the application is also against another unrelated employer, the current proceedings are only in relation to the action against the Chandler Macleod Group Limited.
“[38] The file will be referred for the processing of Mr Druett’s other application for an unfair dismissal remedy against the other employer in relation to the purported termination of his employment in April 2010.”
[3] It should be stressed that the applicant has made no “other application” that has been identified in the proceedings in this matter. However, presumably as a result of paragraph [38] of the Decision of 18 August, administrative staff of Fair Work Australia (FWA) created this matter, identified as U2010/11729, by reference to the same application that gave rise to matter numbered U2010/8055. However the file in this matter has indicated that it was lodged on 23 August 2010. Consequently the application that gave rise to these proceedings was received by FWA on 16 April 2010 although the file contains a lodgement date of 23 August 2010.
[4] The file in these proceedings named the respondent as “Integrated”. The correct identification of the respondent has subsequently been established to be; Integrated Group Limited, a wholly owned subsidiary of Programmed Services Pty Ltd, ABN 61 054 742 264, (“Integrated”).
[5] On 23 August 2010, this matter (U2010/11729) was listed for Conciliation by telephone scheduled for 9 September 2010, before a FWA Conciliator. On 26 August 2010, Integrated filed an Employer’s response, Form F3, which raised 3 stipulated jurisdictional or other objections to the application. These objections can be summarised as; 1. Application out of time per s.394 (2); 2. No minimum period of employment per s.384 (2); and 3. No dismissal at the initiative of employer. The Employer’s response also nominated that the date that the dismissal took effect was 5th July 2010.
[6] On 26 August 2010, administrative staff of FWA cancelled the Notice of Listing for Conciliation of the matter previously fixed for 9 September 2010. On 9 September 2010, the matter was the subject of a Notice of Listing for Extension of time and Jurisdiction (Minimum Employment Period - Casual Employee) Conference/ Hearing before a Member of FWA. This Notice of Listing also contained Directions requiring the applicant and Integrated to file and serve various materials before a scheduled Conference/Hearing fixed for 8 October 2010.
[7] On 8 October 2010, the matter proceeded before FWA. Mr Druett appeared unrepresented and Mr K Cameron the Group Manager Employee Relations, appeared on behalf of Integrated. During the proceeding held on 8 October, the Parties confirmed that they were content to have the matter determined by FWA considering the documentary material that had been filed.
[8] Shortly after the conclusion of proceedings on 8 October, the applicant filed a Form 50 - Notice of Discontinuance in respect of this matter. Less than one hour later the applicant filed a letter seeking to set aside the Notice of Discontinuance as it had apparently been made “In the heat of the moment”.
Consideration
[9] This matter has a very unfortunate procedural history. The application was filed on 16 April 2010 and it complained of an unfair dismissal that allegedly took effect on 9 April 2010. Therefore, the application was made some seven days after the alleged unfair dismissal. Therefore, prima facie, the application was made within the 14 day time limit required by subsection 394 (2) of the Act.
[10] However, as a consequence of the application being used as a basis to create a second set of proceedings, Integrated has nominated the date of 5 July 2010 as the date that it dismissed the applicant. Integrated has provided evidence of the applicant’s employment, albeit as a casual engaged on an irregular and infrequent basis, both before and after the application was made in April 2010 and up until 5 July 2010. The applicant has stated that he was unaware that he had been dismissed by Integrated on 5 July 2010.
[11] Consequently at the time that the application was made on 16 April 2010, Integrated had not dismissed the applicant. Although the applicant may have considered that he had been dismissed by Integrated on about 9 April 2010, subsequent events involving engagements in paid employment of the applicant with Integrated must now render the application as it may have been directed against Integrated, as defunct. These subsequent events establish that there was no dismissal of the applicant by Integrated on or about 9 April 2010.
[12] The application that has been used as basis for these proceedings is defunct. However for abundant caution and to avoid the potential for any further litigation arising in respect of the dismissal of the applicant by Integrated on about 5 July 2010, I shall deal with and determine the second jurisdictional objection raised by Integrated.
[13] The Act stipulates minimum employment periods that must exist as a pre-requisite before an employee can obtain any protection from unfair dismissal. The minimum employment periods are stipulated by section 383 of the Act. In this case, as Integrated is not a small business employer, the minimum employment period is six months. Section 384 of the Act specifies the basis for determining an employee's period of employment and is in the following terms:
“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.”
[14] In the submissions made in these proceedings Integrated has provided evidence of the actual engagements worked by the applicant with Integrated during the period from 31 October 2009 to 5 July 2010. As alluded to in paragraph [10] above, the applicant was engaged by Integrated on an irregular and non-systematic basis. The nature and infrequency of the employment of the applicant with Integrated has established that the applicant could have no reasonable expectation of continuing employment with Integrated on a regular and systematic basis.
[15] Consequently the applicant’s employment with Integrated during the period from October 2009 to 5 July 2010, could not count towards the applicant's period of employment as contemplated by section 384 of the Act. Therefore the applicant had not completed a period of employment with Integrated of at least the minimum employment period as required by section 382 of the Act. Therefore, in respect to employment with Integrated, the applicant was not a person protected from unfair dismissal at either 9 April 2010 or 5 July 2010.
Conclusion
[16] In this matter the proceedings have had an unfortunate history involving a single application operating as the basis for two separate sets of proceedings. This procedural peculiarity has created difficulties involving the respondent employer attempting to defend proceedings that were of an uncertain genesis.
[17] The application, to the extent that it was directed at Integrated in respect to an alleged unfair dismissal on or about 9 April 2010, has been rendered invalid. Events that have involved the applicant's engagement by Integrated in paid employment after 9 April 2010, have established that the applicant was not a person that had been dismissed by Integrated on or about 9 April 2010.
[18] Further, evidence of the pattern of employment of the applicant with Integrated has established that the applicant had not completed a period of employment with Integrated of at least the minimum employment period as required by section 382 of the Act. Therefore the applicant is not a person who is protected from unfair dismissal in respect of any dismissal from employment with Integrated either on or about 9 April 2010 or on or about 5 July 2010.
[19] Consequently for the reasons set out above the application must be dismissed and the proceedings are concluded accordingly.
COMMISSIONER
Appearances:
Applicant for himself.
Mr. K. Cameron for Integrated.
Hearing details:
Sydney, Friday 8 October 2010.
1 Druett v Chandler Macleod Group Limited, [2010] FWA 6187
Printed by authority of the Commonwealth Government Printer
<Price code C, PR503294>
0
1
0