Mr Jason Stepanovich v ABC Transport T/A Transenergy Transport and Hire Pty Ltd

[2018] FWC 3195

[2018] FWC 3195

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Mr Jason Stepanovich
v
ABC Transport T/A Transenergy Transport and Hire Pty Ltd
(U2018/4096)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 4 JUNE 2018

Application for an unfair dismissal remedy – whether protected from unfair dismissal - minimum employment period – section 383 Fair Work Act 2009 - less than six months service performed – application dismissed

[1] Mr Jason Stepanovich (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by Transenergy Transport and Hire Pty Ltd trading as ABC Transport (ABC Transport or ‘the employer’) on 17 April 2018.

[2] ABC Transport operates a road transport business predominately carrying freight between South Australia and the Northern Territory.

[3] Mr Stepanovich’s application was lodged on 18 April 2018, the day after his employment ceased. Thus, it was lodged within the statutorily required 21 days after his dismissal took effect.

[4] Mr Stepanovich seeks a finding that his dismissal was an unfair dismissal within the meaning of the FW Act, and a wide range of orders including enforcement action against the employer, an order for reemployment and compensation in excess of $200,000.

[5] ABC Transport raises a jurisdictional issue. It contends that Mr Stepanovich is not a person protected from unfair dismissal because, at the date of termination, he had not completed the minimum employment period required by the FW Act.

[6] Conciliation by the Commission on Mr Stepanovich’s application has not taken place. ABC Transport has sought that its jurisdictional objection be determined.

[7] This decision determines that jurisdictional objection.

Commission Proceedings

[8] I conducted a directions hearing of the parties on 16 May 2018 at which time I advised the parties that, in the first instance, the application would be listed for a hearing on the jurisdictional matter only. On 16 May 2018 I issued directions for the filing of materials in advance of the hearing. 1

[9] At the directions hearing I noted that by letter dated 19 April 2018 and addressed to the Applicant, the Commission’s registry had drawn Mr Stepanovich’s attention to the minimum employment provisions in sections 382 and 383 of the FW Act and had sought further material in support of his claim. By email to the registry dated 20 April 2018 Mr Stepanovich submitted what he described as a “rebuttal to satisfy FWC”. His application was then referred to me for hearing and determination.

[10] Attached to my directions of 16 May 2018 was a copy of sections 382 and 383 of the FW Act. In my directions I also encouraged the parties to seek independent advice in relation to the matter. 2

[11] On 23 May 2018 the Commission received documents from an email address “Commonwealth of Australia <[email protected]>”. They were received from Mr Stepanovich, not the Commonwealth of Australia. The documents were a two page document titled “Application for an unfair dismissal remedy” which attached five documents and which also included a three page document titled “Explanatory Memorandum of Breach of FWA 2009”. The two page document said, in part:

“I Jason Robert Stepanovich will be a witness statement intend to call to give evidence at the hearing to the following documents….”.

[12] On 23 May 2018 the Commission received documents on behalf of the employer from an email address “Ron Kuczmarski <[email protected]>". These included a written submission of five pages and a Witness Statement of Ronald John Kuczmarski of five pages which attached nine documents.

[13] On 30 May 2018, the Commission received a written submission in reply from Mr Stepanovich being a three page submission which attached six documents. It also included a copy of a form F8 “general protections application involving dismissal” dated 21 May 2018.

[14] On 30 May 2018 the Commission received a four page written submission in reply from the employer.

[15] These materials are before me and were submitted in accordance with my directions. However, I am not seized of the F8 general protections application. The F8 general protections application is not before me for hearing and determination. I make reference to it, however, as Mr Stepanovich has made a submission about it relevant to his unfair dismissal application. I deal with that matter in the body of this decision.

[16] I conducted a hearing of the jurisdictional matter by telephone on 1 June 2018. Mr Stepanovich was self-represented. ABC Transport were represented by Mr Kuczmarski with two other company officers (Mr Eccleston and Mr Cogan) in attendance.

[17] At the hearing’s conclusion, I reserved my decision.

[18] A sound file record of the hearing was made by the Commission.

[19] At the commencement of the hearing I sought an indication from the parties as to the persons who would be giving evidence in the matter. Mr Stepanovich indicated that he would give evidence in support of his application and Mr Kuczmarski indicated that he would give evidence for the employer.

[20] Part way through stating his affirmation Mr Stepanovich declined to continue with his affirmation and declined to give oral evidence in support of his application. I informed Mr Stepanovich that by doing so he would still be entitled to make submissions but that the only oral evidence before me would be the employer’s oral evidence. He maintained his decision to not give oral evidence.

[21] Mr Kuczmarski gave oral evidence. He was asked questions by myself. He was cross examined on his evidence by Mr Stepanovich.

[22] Part way through Mr Kuczmarski’s cross examination Mr Stepanovich informed me that he considered me to be biased. I informed Mr Stepanovich that he could make a submission to me in that regard. Mr Stepanovich asserted that my conduct, including my request for him to ask relevant questions and my suggestions that he reframe some of his questions to establish their relevance, was evidence of bias. After hearing Mr Stepanovich on that matter, I indicated that I did not consider myself to be biased or for a reasonable apprehension of bias to exist. I declined to excuse myself or adjourn proceedings. I advised the parties that I would continue to hear and determine the matter. The proceedings, including cross examination, continued.

The Facts

[23] This decision is reached on the basis of the documentary material, submissions and evidence before me. I consider Mr Kuczmarski, the only witness to give evidence, to have been a witness of truth. His oral evidence was consistent with the documentary material. It provides a reliable basis on which I make findings in this matter.

[24] Despite the volume of material before me and the contested nature of the hearing, the facts relevant to the jurisdictional issue are readily established.

[25] I find that ABC Transport is an employer which, at the date of dismissal, employed approximately 125 employees. 3

[26] I find that Mr Stepanovich was offered employment by ABC Transport by email on 25 January 2018. 4 This followed a meeting between the employer and Mr Stepanovich the day prior, 24 January 2018.

[27] I find that there had been no earlier employment or association between ABC Transport and Mr Stepanovich prior to that date.

[28] I find that Mr Stepanovich accepted the employment offer by return email dated 25 January 2018, and confirmed his intended attendance at the workplace on Monday 29 January 2018. 5

[29] I find that Mr Stepanovich commenced employment with ABC Transport on 29 January 2018. I find that on 29 January 2018 Mr Stepanovich attended the workplace and provided the employer with his countersigned copy of the letter of offer of 25 January 2018. 6 He then started work.

[30] I find that a term of Mr Stepanovich’s employment was a probationary period of three months. 7

[31] I find that on 17 April 2018, whilst working within the probationary period, Mr Stepanovich was called to Mr Kuczmarski’s office. Mr Kuczmarski informed him that his employment was terminated and that he would be paid one week in lieu of notice. He was told that he would not need to work out the remainder of his probationary period. 8

[32] Mr Stepanovich left the workplace and his employment ended.

[33] I note that although Mr Stepanovich did not give evidence in support of his application, his application (F2) at 1.1 indicates that he began working for the employer on 29 January 2018 and further indicates (at 1.2 and 1.3) that he was notified of his dismissal on 17 April 2018 and that it took effect on that date.

Consideration

[34] Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.

[35] Section 383 of the Act sets out the minimum employment period:

“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.”

[36] Not being employed by a small business employer within the meaning of the FW Act, the minimum employment period required to have been served by Mr Stepanovich to make an application of this kind was at least six months.

[37] The period between the commencement of Mr Stepanovich’s employment on 29 January 2018 and his dismissal on 17 April 2018 was less than three months.

[38] Accordingly, Mr Stepanovich has not served the minimum employment period that would enable him to be a person protected from unfair dismissal within the meaning of section 382 of the FW Act.

[39] As a consequence, Mr Stepanovich is unable to maintain his application before the Commission. As Mr Stepanovich was not a person protected from unfair dismissal with respect to this dismissal, his application must be dismissed.

[40] Mr Stepanovich, in his F8 general protections application and in answer to questions from me submitted that he be permitted to “amend my F2 for F8 application so that in an alternative to the unfair dismissal provisions of the Act, it is pursuant to section/s 340, 772, 387 relating to adverse action. I submit that the jurisdictional issue does not arise in that context, as the limitation concerning probationary employment is not applicable.” 9

[41] Mr Stepanovich has not discontinued or sought leave to discontinue his unfair dismissal application. He proceeded with his unfair dismissal application at the hearing on 1 June 2018. Mr Stepanovich’s general protections application is not before me. It would be inappropriate for a member of the Commission not seized of an application to amend or substitute a proceeding before them with another application that has been filed. In any event, whatever the grounds of his unfair dismissal application, the obligation to have served a minimum employment period is mandated by statute. Any amendment of Mr Stepanovich’s F2 unfair dismissal application with the content or grounds of his F8 general protections application would not overcome the statutory barrier to his unfair dismissal application proceeding.

[42] I note that the copy of Mr Stepanovich’s F8 general protections application he provided to me appears, on the face of it, to raise some of the same or similar matters as his unfair dismissal application. I further note that Mr Stepanovich in his F8 application has answered (at 1.5) “yes” to the question as to whether he has “made another claim to the Commission or to any other organisation in relation to your dismissal (eg. an unfair dismissal claim)?”. I draw Mr Stepanovich’s attention to the provisions of section 725 of the FW Act barring the making of multiple applications of a particular kind with respect to the one dismissal and the decision of the Commission in Alex v Costco Wholesale Australia. 10 I also draw Mr Stepanovich’s attention to the provisions of section 366 of the FW Act concerning the time limit for making such applications.

[43] I issue an order dismissing Mr Stepanovich’s unfair dismissal application in conjunction with the publication of this decision.

DEPUTY PRESIDENT

Appearances:

J. Stepanovich, on his own behalf

R. Kuczmarski, A. Cogan and J. Eccleston, for the Respondent

Hearing details:

2018.

Adelaide; by telephone.

1 June.

Printed by authority of the Commonwealth Government Printer

<PR607734>

 1   Directions, Deputy President Anderson, 16 May 2018

 2   Directions at [6]

 3   Witness Statement of Ronald John Kuczmarski paragraph 6

 4 ABC1 to Witness Statement of Ronald John Kuczmarski

 5 ABC2 to Witness Statement of Ronald John Kuczmarski

 6 ABC3 to Witness Statement of Ronald John Kuczmarski

 7 ABC1 to Witness Statement of Ronald John Kuczmarski at heading “Term”

 8   Witness Statement of Ronald John Kuczmarski paragraph 16

 9 F8 application dated 21 May 2018 paragraph 1.4

 10   [2014] FWC 1904