Mr Neville Mate v SSND Pty Ltd T/A Southern Sydney Newspapers Distribution

[2011] FWA 414

Note: An appeal pursuant to s.604 (C2011/4941) was lodged against this decision - refer to Full Bench decision dated 24 August 2011 [[2011] FWAFB 5722] for result of appeal.

[2011] FWA 414

FAIR WORK AUSTRALIA

DECISION

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

Mr Neville Mate
v
SSND Pty Ltd T/A Southern Sydney Newspapers Distribution
(U2010/12669)

COMMISSIONER CAMBRIDGE SYDNEY, 20 JANUARY 2011

Unfair dismissal - ss. 382, 383 and 384 - minimum employment period - small business employer - application dismissed.

[1] This Decision is issued as confirmation and elaboration of the extempore determination made during proceedings held on 19 January 2011.

[2] This matter involves 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 21 September 2010. The application was made by Neville Mate (the applicant), and the respondent employer has been identified to be SSND Pty Ltd T/A Southern Sydney Newspapers Distribution (the employer).

[3] The application stated that the date of dismissal was 10 September 2010. Consequently the application was made within the 14 day time limit prescribed by subsection 394 (2) of the Act.

[4] Conciliation of the claim occurred on 27 October 2010 and was unsuccessful. Later on 27 October 2010, the applicant posted, by regular mail, a Notice of Discontinuance (NOD) to the Sydney offices of Fair Work Australia (FWA). The next day, 28 October 2010, the applicant changed his mind about discontinuing the matter and he attended the Sydney offices of FWA and personally filed a handwritten document seeking to stop the NOD (the stop notice). The stop notice was received and date stamped “28 OCT 2010”. The NOD was subsequently received at the Sydney offices of FWA and it has been date stamped “29 OCT 2010”.

[5] Despite the stop notice having been filed before the NOD, the matter was listed for “Conference/Hearing for Application to Set Aside the Notice of Discontinuance” before McKenna C on 3 December 2010. On 3 December 2010 the applicant appeared in person and there was no appearance by or on behalf of the employer. The absence of the employer from the proceedings held on 3 December appeared to relate to the applicant having filed the NOD.

[6] The matter was subsequently re-listed for “Conference/Hearing for Application to Set Aside the Notice of Discontinuance” before myself on 19 January 2011. Strangely the Notice of Listing for this proceeding included Directions which, inter alia, required the Parties to file and serve materials in respect to “... an extension of time for the lodgment [sic] of the application in this matter...”

[7] At the proceedings held on 19 January both Parties appeared in person. Following some exploration of the unfortunate procedural history of the matter an issue regarding the applicant’s period of employment overshadowed the question of the NOD, the stop notice or any question of an extension of time.

[8] During the proceedings held on 19 January the Parties confirmed that the employer was a small business employing no more than approximately 10 employees at any given time, and that the applicant’s period of employment was of almost 7 months duration. The Parties attention was directed to the provisions of ss.382, 383 and 384 of the Act which are in the following terms:

“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) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

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.

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.”

[9] Consequently, as clarified during the proceedings on 19 January, the applicant is not a person protected from unfair dismissal and FWA does not have jurisdiction to proceed with the matter. The application was therefore dismissed.

COMMISSIONER

Appearances:

Mr N Mate, the applicant in person.

Ms E Crawford and Mr P Crawford, proprietors of the employer.

Hearing details:

Sydney, 19 January 2011.

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<Price code A, PR506092>