Mr Grant Nicholas v Australian Offshore Solutions Pty Ltd

[2014] FWC 6751

[2014] FWC 6751

FAIR WORK COMMISSION

DECISION

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

Mr Grant Nicholas
v
Australian Offshore Solutions Pty Ltd
(U2014/11213)

COMMISSIONER CLOGHAN PERTH, 25 SEPTEMBER 2014

Application for relief from unfair dismissal - jurisdictional objections - not dismissed - out of time - minimum employment period.

[1] On 25 July 2014, Mr Grant Nicholas (Mr Nicholas or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from Australian Offshore Solutions Pty Ltd (OMS or Employer).

[2] The application is made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] In his application, Mr Nicholas states that he commenced employment on 28 November 2013 and that he “had not been notified” of his dismissal. Further, Mr Nicholas includes in his application that because he was “not sacked cant get centrelink”. Finally, the reasons for his dismissal are “unknown”.

[4] Mr Nicholas was employed as a crew member on a vessel.

[5] Attached to this application is Mr Nicholas’ recollection of an event which occurred on 29 January 2014. The Applicant alleges that his name was forged in a document on the vessel’s log book.

[6] On 7 August 2014, the Employer provided a response to Mr Nicholas’ application.

[7] The Employer’s response is that Mr Nicholas was a casual employee. Further, on 7 March 2014, the Applicant was forwarded “vessel joining” details for 21 March 2014. On 18 March 2014, Mr Nicholas advised the Employer that he was not going to join the vessel he was allocated to work on. In summary, the Employer asserts that it did not dismiss Mr Nicholas.

[8] On 8 April 2014, the Applicant emailed the Employer and wished to know “...am I saxed”. The Employer responded:

“We have replaced you as you are currently unfit for an indefinite period.

We have not sacked you, you provided us with a medical certificate which confirmed you were not fit to join the vessel.”

[9] On 15 April 2014, Mr Nicholas sent a further email to the Employer, “now going to lawyer. I will be claiming the s.r.c.a. [Seafarers Rehabilitation Compensation Act 1992] have been sick since discovered my name signed...”

[10] Further emails were exchanged between the parties. On 9 and 17 June 2014, the Employer again confirmed to Mr Nicholas that he was not sacked but had not been assigned a vessel to work upon because he was medically unfit to return to work.

[11] I have been provided with various medical certificates which state that Mr Nicholas was unfit for work from: 15 April to 11 June 2014 and from 5 June to 5 September 2014.

[12] On 26 August 2014, conciliation between Mr Nicholas and the Employer’s representative concluded without resolution, due to the conduct of the Applicant.

[13] On 29 August 2014, the Employer provided the Commission with a Form F4: Objection to Application for Unfair Dismissal Remedy. The objections are as follows:

“Applicant was not dismissed - Applicant was sent joining details to join the vessel on 21 March 2014, however on 18 March 2014 advised he could not join the vessel due to personal illness. The Applicant never provided a fitness for work certificate after that date to rejoin and the vessel has since left the coast.

The Applicant is out of time - the applicant last worked for the employer in February 2014 and advised he would not rejoin the vessel to which he was previously employed on March 2014. He did not lodge his unfair dismissal claim until August 2014, well beyond the maximum 21 day period.

The Applicants employment does not meet the minimum employment period - the applicant first commenced work with the employer on 27 November 2013 and finished working with the employer on 13 February 2014, a period of approx. 2.5 months.”

[14] On 1 September 2014, my Associate forwarded to Mr Nicholas the Employer’s jurisdictional objections and seeking his response by 16 September 2014.

[15] On 17 September 2014, I received the Applicant’s submission.

[16] The submission essentially refers to the incident regarding the alleged forgery of Mr Nicholas’ signature in a vessel’s log book on 29 January 2014.

RELEVANT STATUTORY FRAMEWORK

[17] The relevant provisions of the FW Act 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) ...”

“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) ...”

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) ...”

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) ...”

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) ...”

CONSIDERATION

[18] The object of Part 3-2 Unfair Dismissal of the FW Act is to balance the needs of employers and employees and to provide a quick, flexible and informal process for resolution of unfair dismissal claims. Procedures are designed and intended to ensure a “fair go all round”.

[19] The Applicant has not provided any documentation which demonstrates that he has been clearly and unambiguously dismissed. The Applicant has not asserted that a particular employer representative has said to him directly that he has been dismissed. I am unable to find that Mr Nicholas has been dismissed pursuant to paragraph 386(1)(a) of the FW Act.

[20] However, in the alternative, if an Employer representative has dismissed Mr Nicholas (of which I have no documentation) he would have completed a total period of employment of approximately 2.5 months. The first condition for Mr Nicholas to be protected from unfair dismissal, is for him to have completed a minimum period of employment of six (6) months pursuant to s.383(a) of the FW Act. Mr Nicholas has not completed a minimum period of employment of six (6) months at the time of his alleged dismissal (which is denied). Accordingly, even if he was dismissed, Mr Nicholas is unable to access the unfair dismissal provisions of the FW Act.

[21] Finally, the Employer has stated in its response to Mr Nicholas’ application that he “...came off the vessel to which he was employed and had all entitlements paid out to him on 14 February 2014”.

[22] 14 February 2014 appears to be the last date of Mr Nicholas’ employment. If Mr Nicholas contends that he was dismissed on this date, he has 21 days in which to make application to the Commission seeking a remedy for alleged unfair dismissal pursuant to paragraph 394(2)(a) of the FW Act. Mr Nicholas has not done so.

[23] I note, for the purposes of paragraph 394(2)(b) of the FW Act, the Applicant contends he saw a General Practitioner on 15 February 2014. However, I have no medical certificate. Mr Nicholas has engaged in voluminous emails with the Employer since 14 February and prior to filing this application on 25 July 2014. It appears from the documentation that Mr Nicholas was capable of engaging with his Employer periodically but did not give filing an application in the Commission a priority until 25 July 2014. I note on the same day, Mr Nicholas has filed an application pursuant to s.789FD of the FW Act.

DISPOSAL OF APPLICATION

[24] Having considered the objects of Part 3-2 of the FW Act, the submissions and documentation of the parties, this application is dismissed pursuant to paragraph 587(3)(a) of the FW Act. An Order to this effect is issued jointly with this Decision.

COMMISSIONER

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