Mr Michael Smith v Dock Enterprises

[2012] FWA 6766

[2012] FWA 6766

FAIR WORK AUSTRALIA

DECISION

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

Mr Michael Smith
v
Dock Enterprises
(U2012/6576)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 15 AUGUST 2012

Protection from unfair dismissal; minimum employment period.

[1] On 6 August 2012 I dismissed Mr Michael Smith’s application for an unfair dismissal remedy. These are the reasons for that decision.

[2] Mr Smith commenced working as a casual driver for the respondent, Dock Enterprises Pty Ltd, in March 2011. He was employed to fulfil an arrangement the respondent had with Amcor to collect scrap cardboard from various locations and deliver it to Amcor’s Botany Mill site. While his hours of work varied he worked regularly for the respondent until his employment was terminated in March 2012.

[3] The respondent at all relevant times employed fewer than 15 employees, and was thus a ‘small business employer’ as defined by s.23 of the Fair Work Act 2009 (the Act). Under s.382 of the Act for a person to be protected from unfair dismissal they must have completed a period of employment with the employer of at least the ‘minimum employment period’. In the case of a small business employer the minimum employment period is defined by s.383 of the Act as one year.

[4] Mr Smith was unsure of the exact date he started work. Ms Kerri Podesta, who appeared for the respondent, gave sworn evidence that Mr Smith commenced work on or around 26 March 2011. This is consistent with a site safety induction form signed by Mr Smith on 28 March 2011. I am satisfied that Mr Smith commenced work on or around 26 March 2011.

[5] Based on Ms Podesta’s evidence I am satisfied that on Friday 9 March 2012 a manager from Amcor (Mr John Bartel) spoke to Ms Podesta over the phone and told her he had received a complaint that Mr Smith had been operating equipment without the proper footwear. He indicated that he would no longer allow Mr Smith on the Amcor site. Ms Podesta sent Mr Smith a text message on Sunday 11 March 2012 saying there was no work available for him.

[6] On Monday 12 March 2012, according to Mr Smith’s evidence, he sent Ms Podesta a text message asking what time and where he would be working. She responded and asked him to call her which he did. Ms Podesta then told him:

‘4. I called Kerri PODESTA at which time she said to me “AMCOR had told her to get someone else to do the work as I would be refused entry on to their site”.

5. I asked Kerri PODESTA “why” and she replied with “I don't know why, we have to go and see them on Monday" (I assumed Kerri PODESTA was going to see AMCOR).

6. The next day I rang Kerry PODESTA and she had stated “I had been barred from the AMCOR site because I wasn't wearing protective footwear on another site being GRIMA RECYCLING at Wetherill Park.” ’ (statement of Michael Smith, 26 June 2012)

[7] Following this conversation Mr Smith performed no more work for the respondent. The respondent had no work other than for Amcor. While no written notice of termination was provided I am satisfied that Mr Smith was dismissed on 12 March 2012.

[8] As a consequence I find that Mr Smith was not employed by the respondent for a period of one year. Accordingly he was not protected from unfair dismissal.

[9] Mr Smith's application for an unfair dismissal remedy is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr Michael Smith, on his own behalf.

Ms Kerri Podesta, on behalf of Dock Enterprises Pty Ltd.

Hearing details:

SYDNEY
6 August 2012

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