Mr Greg Jean v Yara Pilbara Fertilisers Pty Ltd

[2013] FWC 9448

[2013] FWC 9448

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Mr Greg Jean
v
Yara Pilbara Fertilisers Pty Ltd
(U2013/12951)

COMMISSIONER CLOGHAN PERTH, 3 DECEMBER 2013

Unfair dismissal.

[1] This is an application by Mr Greg Jean seeking a remedy for alleged unfair dismissal from his former employer, Yara Pilbara Fertilisers Pty Ltd.

[2] Yara Pilbara Fertilisers Pty Ltd opposed the application on the grounds that Mr Jean has not completed the minimum six (6) months employment to be protected from unfair dismissal.

[3] In the course of this application, Mr Jean has asserted that he commenced employment on 31 December 2012 or 4 or 18 February 2013. Should Mr Jean have commenced employment on 31 December 2012 or 4 February 2013, he would have completed the minimum period of employment and be protected from unfair dismissal.

PROCEDURAL BACKGROUND

[4] On 26 August 2013, Mr Greg Jean (Mr Jean or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his employment with Yara Pilbara Fertilisers Pty Ltd (Employer).

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

[6] Mr Jean states in his application that he commenced employment on 18 February 2013 and his dismissal took effect on 5 August 2013. However, Mr Jean has also stated in the course of his application and submissions that he commenced employment on 31 December 2012 and 4 February 2013.

BACKGROUND

[7] Mr Jean signed his offer of employment with the Employer on 31 December 2012.

[8] The offer of employment contains the terms and conditions of employment. The terms and conditions of employment include suitable housing at no rental cost and relocation at the Employer’s cost.

[9] On or about 14 January 2013, Mr Jean enquired as to the Employer providing housing. The Employer responded that allocating housing has not been completed and “we will be able to issue keys within the next week or so...Do you have a date you have to vacate your current house by?...”

[10] On 18 January 2013, Mr Jean informed the Employer by email that he was receiving telephone calls from removalists regarding his relocation but was unable to do so without a specific date his accommodation would be available. Mr Jean concludes his email with the words “it appears things are out of sync”.

[11] On 18 January 2013, the Employer responds that “practical completion [construction of the house] sigh (sic) off is not until 28 January a week before your commencement with Yara”.

[12] The completion certificate for Mr Jean’s intended housing was provided to the Employer on 1 February 2013. The keys for the house were handed by the builder to the Employer on 13 February 2013.

[13] Prior to the Employer being provided with the keys to the house, Mr Jean was advised on 6 February 2013, by Ms McMahon, Human Resources Officer, that the relocation would take place on 14 or 15 February 2013 and “due to these circumstances, your start date will be the 18th February”.

[14] On 18 February 2013, Mr Jean completed a safety induction and paperwork required for a “Permit to Work” which was issued on the same day. The employer’s monthly timesheet for 16 February to 13-15 March 2013 records Mr Jean completing 12 ordinary hours of work on 18 February 2013 and no recorded previous hours of work. This information is also recorded in Mr Jean’s first payslip.

APPLICANT’S SUBMISSIONS

[15] Mr Jean submits that:

“My signing and acceptance of the contract on 31-12-12 could also be argued that this is in fact my start date”.

[16] Secondly, Mr Jean submits that:

“...unless Yara can produce another contract, the only contract presented to me by Yara and signed by myself on 31-12-12 states that my start date will be on the 4-2-13”.

CONSIDERATION

[17] From his submissions, there is no doubt that Mr Jean feels aggrieved by the delay in commencement of his employment. However, it is necessary for the Commission to objectively look at the written evidence and conduct of the parties.

[18] The evidence is that Mr Jean was offered employment with the Employer on 24 December 2012 which he accepted on 31 December 2012. Mr Jean’s acceptance of the offer of employment was nothing more than that - accepting an invitation to form a contract of employment at a later date. For this reason, I am unable to agree with Mr Jean that he was employed from 31 December 2012.

[19] Objectively, the offer of employment contained a term which states that his commencement date was 4 February 2013 subject to successful completion of a medical examination and reference check. Two issues arise from this term. Firstly, the offer of employment was conditional. The issue of the medical examination and reference check was not raised in submissions and I have assumed that Mr Jean complied with the conditions, and consequently, the offer of employment meant he could commence employment on 4 February 2013.

[20] However, the offer of employment was accompanied by an email covering correspondence in which the author, Ms Scott, states:

“As discussed I have used 4 February as commencement date and will liaise further in relation to housing and relocation”.

[21] This communication by Ms Scott is important because it conveys the Employer’s offer concerning the commencement date of 4 February 2013 was an estimate and influenced by completion of the construction of Mr Jean’s intended accommodation and relocation from Wickham to Karratha. It is necessary to mention this email communication because, as part of the terms and conditions of employment of the offer of employment, the Employer was obligated to provide rent free accommodation to Mr Jean and relocation of his furniture and effects.

[22] In the ordinary course of events, if both parties had undertaken their respective obligations, Mr Jean would have commenced employment on 4 February 2013 and this particular issue would not have arisen. However, it would appear that Mr Jean met the requirements in the offer of employment but the Employer was not able to meet its obligations.

[23] Notwithstanding the fact that the Employer was not able to meet its obligation, the documentation clearly sets out that Mr Jean did not commence employment on 4 February 2013.

[24] Mr Jean submits that he resigned from his previous employment and was ready willing and able to commence employment on 4 February 2013. As a consequence of not being able to commence work on 4 February 2013, he “subsequently lost thousands of dollars due to Yara not providing agreed housing for my family”. Mr Jean’s construction of his contract of employment may well be correct, but the issue for the Commission is not the construction or enforceability of his contract of employment but his actual commencement date of employment.

[25] What Mr Jean is effectively asking the Commission to do is put aside the matrix of objective facts which clearly demonstrate that he actually commenced employment on 18 February 2013 and declare, or deem, that the performance of the contract of employment commenced on 4 February 2013. While a declaration to this effect would assist Mr Jean in pursing his unfair dismissal claim, it is contrary to the Employer’s inability to form the contract of employment until it provided housing and relocated the Applicant and his family.

[26] Having considered objectively the relevant facts, I find that Mr Jean commenced employment on 18 February 2013 and consequently, at the time of his dismissal, had not completed the minimum employment period in accordance with subsection 382(a) of the FW Act to be protected from unfair dismissal.

[27] In the course of submissions, my attention was drawn to a number of what I would describe as secondary issues. Firstly, I am satisfied that the Employer did not deliberately delay the commencement of Mr Jean’s employment so that it could preclude him from making an unfair dismissal application at a later date. The Employer had no indication, at the time, that these sequence of events would turn out as they did in the course of the Applicant’s employment. Secondly, the documentation provided to the Commission appears to confirm that the delay in Mr Jean commencing employment was attributable to the completion of the construction of housing and relocation, and not, to any request by the Applicant to delay commencing employment.

CONCLUSION

[28] In conclusion, I find that Mr Jean commenced employment on 18 February 2013 and was dismissed on 5 August 2013. Accordingly, Mr Jean has not completed the minimum period of employment of six (6) months to be protected from unfair dismissal pursuant to subsection 382(a) of the FW Act. Consequently, Mr Jean’s application must be dismissed for want of jurisdiction and an order to this effect will be issued conjointly with this Decision and Reasons for Decision.

COMMISSIONER

Final written submissions:

Applicant: 14 October and 6 November 2013.

Respondent: 5 November 2013.

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