Mr Patrick De Silva v Murphy Holdings (SA) Pty Ltd T/A Murphy Holdings (SA) Pty Ltd

[2017] FWC 4926

[2017] FWC 4926

FAIR WORK COMMISSION

DECISION

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

Mr Patrick De Silva
v
Murphy Holdings (SA) Pty Ltd T/A Murphy Holdings (SA) Pty Ltd
(U2017/8672)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 21 SEPTEMBER 2017

Application for an unfair dismissal remedy – minimum employment period – casual employee- section 22(2) Fair Work Act 2009 - meaning of “unpaid authorised absence” – meaning of “stand down” - excluded period - less than six months service – application dismissed

[1] Mr Patrick De Silva 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 (alleged) dismissal by Murphy Holdings (SA) Pty Ltd (Murphy Holdings) on 10 August 2017.

[2] Murphy Holdings operates a Budget Car and Truck Rental business at the Adelaide Airport. Mr De Silva worked for Murphy Holdings washing, cleaning and detailing rental motor vehicles. He was a casual employee. He commenced working on 16 January 2017. His employment was terminated on 10 August. His employment was governed by a modern award, the Vehicle Manufacturing, Repair and Service Retail Award 2010.

[3] Mr De Silva’s application was lodged on 10 August, the day his employment ceased. Thus, it was lodged within the statutorily required 21 days after his dismissal took effect.

[4] Mr De Silva seeks a finding that his (alleged) dismissal was an unfair dismissal within the meaning of the FW Act, and an order for compensation. He says that reinstatement is not appropriate given the damaged relationship with the General Manager, Mr Tony Harris, who made the decision to terminate his employment.

[5] Murphy Holdings raised two jurisdictional issues. It contends that Mr De Silva 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. It further contends that Mr De Silva was not dismissed within the meaning of the FW Act.

[6] Conciliation by the Commission on Mr De Silva’s application has not taken place. Murphy Holdings exercised its right to not participate in conciliation until its jurisdictional objections are heard and determined.

[7] This decision concerns the first of the jurisdictional matters only, whether Mr De Silva had completed the minimum employment period required by the FW Act.

[8] A hearing of this jurisdictional matter was conducted by telephone on 18 September. Mr De Silva was self-represented. Murphy Holdings was represented by Mr Mahoney of the Motor Trade Association of South Australia. At the hearing’s conclusion, I reserved my decision.

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

[10] Witness statements, documentary evidence and written submissions were submitted by both Mr De Silva and by Murphy Holdings in compliance with directions issued by the Commission 1. Mr De Silva gave evidence in support of his application. A witness statement was also tendered and admitted into evidence by Christine De Silva but she was not made available for cross examination. For the employer, Mr Ben O’Loughlin (Operations Manager) gave evidence, as did Mr Carl Hansen (Site Manager). I found all witnesses who gave oral evidence to be reliable, within the bounds of their recall. There were however differences in recall between Mr De Silva and Mr Hansen in relation to two relevant conversations (18 March and 30 July). I deal with those matters in the body of this decision.

[11] This decision is reached on the basis of all of the documentary material, submissions and evidence placed before me.

The Legal Framework

[12] 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.

[13] 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.”

[14] Section 384 states:

“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.”

[15] Section 22 states:

“22 Meanings of service and continuous service

General meaning

(1)  A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(2)  The following periods do not count as service:

(a) any period of unauthorised absence;

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down underPart 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

   (c)  any other period of a kind prescribed by the regulations.

(3)  An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.

(3A)  Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.”

Factual Matters

[16] A number of factual matters were not in dispute. They are summarised below.

[17] Murphy Holdings is not a small business within the meaning of the FW Act.

[18] At all relevant times, Mr De Silva was a casual employee.

[19] At all relevant times, Mr Silva worked a casual roster which was regular and systematic and had a reasonable expectation of continuing employment on a regular and systematic basis.

[20] Mr De Silva commenced work on 16 January 2017. His employment was terminated on 10 August. Between these dates is a period of 6 months 25 days.

[21] As a casual employee, Mr De Silva was only paid for hours worked. When not at work he was not paid. He had no entitlement to paid leave.

[22] Mr De Silva sustained a sports injury (foot) on 4 March. He did not work between 18 March and 23 April (inclusive) a period of 36 days (the foot injury absence).

[23] Mr De Silva suffered the effects of another sports injury (concussion) on 29 July. He did not work between 30 July and 6 August (inclusive) a period of 8 days (the concussion injury absence).

[24] I am satisfied on the evidence that these facts are established. I make those findings.

[25] However, the circumstances in which Mr De Silva was not rostered to work during the two periods of absence are in dispute.

Issues for Decision

[26] As Murphy Holdings is not a small business, the minimum employment period required to have been worked by Mr De Silva was six months. 2

[27] Having found that Mr De Silva’s casual employment was regular and systematic and that he had a reasonable expectation of continuing employment on a regular and systematic basis, his period of service as a casual employee counts towards the minimum employment period (section 384(2)(a)).

[28] In order to determine whether Mr De Silva completed the minimum employment period it is necessary to determine whether one or both of the periods of absence are “excluded periods” within the meaning of section 22(1) and (2) of the FW Act. If they are not excluded periods Mr De Silva’s period of service was 6 months 25 days, entitling him to make an unfair dismissal claim. If the first period of absence is excluded or if both periods of absence are excluded, his period of service is less than six months. If only the second period of absence is excluded, his period of service is more than six months.

[29] It is accepted for the purposes of this matter that there are no relevant regulations under section 22(2) which alter the operation of the statutory provision. This matter turns on whether or not either or both of Mr De Silva’s periods of absence was a period of “unauthorised absence” or a period of “unpaid leave or unpaid authorised absence” other than community service leave or a stand down.

[30] Mr De Silva’s case was that the foot injury absence was decided by the employer against his wishes and in circumstances where he expressed a desire to continue working and made himself available to work. He says it was not an “unauthorised absence” because the employer decided not to roster him. It was not “unpaid leave” because he had no entitlement to sick leave, paid or unpaid. It was not an “unpaid authorised absence” because firstly, he did not wish to be absent and secondly (he contends) it was a period of stand down by the employer.

[31] In relation to the concussion injury absence, Mr De Silva says that he sought and agreed to the first two days of absence (30 and 31 July) but the remaining six days were again decided by the employer and as such it was not an absence on his part but rather a stand down by the employer.

[32] Mr De Silva says only 30 and 31 July of his period of service are excluded periods, with the result that he served six months 23 days.

[33] Murphy Holdings case was that both the periods of absence were periods of absence they authorised following Mr De Silva informing the employer that he sustained the relevant injuries. They contend either period could be classified as an “unpaid authorised absence” or “unpaid leave”. They contend that the absence was not a stand down under Part 3-5 of the FW Act. In the alternative, they argue that they were periods of unauthorised absence.

[34] Being excluded periods, Murphy Holdings says that Mr De Silva only served five months and ten days.

Conclusion

[35] Mr De Silva gave evidence that on 18 March he had a telephone conversation with his manager, Mr Hansen. He had that day seen a doctor who had diagnosed a stress fracture in his foot. He told Mr Hansen that his medical advice was that his foot would not fully heal for five weeks and that he would wear a form of protective cast (moon boot). He says that he told Mr Hansen that despite the diagnosis he was able to continue working and wanted to do so.

[36] Mr Hansen gave evidence that Mr De Silva did not express a desire to continue working. He says that Mr De Silva said that he would be back in touch and available for work once the foot healed in about five weeks. Mr Hansen said he agreed that was appropriate given that Mr De Silva’s work was of a physical nature requiring him to stand and walk in puddles of water.

[37] Murphy Holdings also point to the fact that, at Mr De Silva’s request, on 5 May 2017 it certified to a sports injury insurer that Mr De Silva had not worked during this period of absence for reason of “disablement”. 3 Mr De Silva says that he only made a claim for income maintenance against the sports insurer because he had suffered income loss as a result of being stood down from his roster by Murphy Holdings.

[38] I do not need to reconcile the different versions of the conversation between Mr De Silva and Mr Hansen. On either version, Mr De Silva did not work between 18 March and 23 April. It was an absence from work. On either version the employer agreed to the absence. Whether it was an absence sought by Mr De Silva and agreed by the employer (the employer’s case) or an absence decided by the employer and disagreed by the employee (Mr De Silva’s case) it was an authorised absence in the sense that the absence was known to the employer and occurred with its acceptance and authority. I do not consider that a casual employee, even one regularly and systematically employed, needs to request a period of absence for a period of absence to be an authorised absence. If the employer has a lawful reason to exercise its right to not roster a casual employee and then informs that employee of its decision, then it has authorised the employee to be absent from future rostered shifts. In this case, I accept the evidence of Mr Hansen that he considered that on health and safety grounds alone it would be unwise to roster Mr De Silva once he had been informed that the employee had a stress fracture of the foot which would not be fully healed for five weeks. While I accept that Mr Hansen did not follow company policy and require a medical certificate for an absence of more than two days, this did not mean that Mr De Silva’s absence was not authorised.

[39] I am satisfied that Mr De Silva’s absence between 18 March and 23 April was unpaid; was an absence; and was authorised. It was therefore an “unpaid authorised absence” within the meaning of section 22(2)(b) of the FW Act.

[40] The absence between 18 March and 23 April would not be an excluded period if it was a stand down. Mr De Silva contends that “the respondent making changes to the applicant’s roster does not constitute a period of leave but is a decision to stand down the employee.” 4 I do not find that it was a stand down. The reference to stand down in section 22(2)(b)(ii) is not a reference to stand down in a colloquial sense. It is a reference to a stand down in a legal and industrial sense; that is, in the terms expressed in Part 3-5 of the FW Act.

[41] Mr De Silva conceded in his evidence that his absence was not on account of industrial action, a breakdown in machinery or a work stoppage within the meaning of section 524 of the FW Act. However, he argued that even if the employer’s stand down was not in compliance with section 524 it nonetheless was a stand down albeit an unlawful stand down. I do not accept this submission. A stand down for the purposes of section 22(2)(b) must be a stand down within the terms of section 524 or an applicable industrial instrument if that period of absence is to not be part of the excluded period.

[42] Nor do I accept Mr De Silva’s contention that it is relevant to this question whether the employer did, or did not permit another employee at another time to work whilst injured. 5 In any event, each circumstance turns on its own facts. I accept the employer’s submission that the employee referred to by Mr De Silva was working under an agreed workers compensation arrangement. Mr De Silva was not.

[43] Accordingly, I find that the 36 days of absence between 18 March and 23 April (inclusive) was an excluded period. Consequently, Mr De Silva did not serve the minimum employment period required by the FW Act to be protected from unfair dismissal claim.

[44] Having regard to the above, I do not need to determine the character of the concussion injury period of absence. Had I needed to do so, I would have made a similar finding.

[45] Mr De Silva’s evidence was that he told Mr Hansen that he agreed not to work 30 and 31 July but would be able to work the days following. He turned up for work on 1 August only to be told he had not been rostered his regular shift. Murphy Holdings evidence was that Mr Hansen asked Mr De Silva to contact him on 31 July in order to update his condition and whether he would be able to work in the days that followed. As no contact was made, Mr Hansen did not roster Mr De Silva the following week. I accept Mr Hansen’s evidence. Mr De Silva turned up for work on 1 August, to be told his shifts had been given to another employee.

[46] It is agreed that Mr De Silva’s absence on 30 and 31 July was an unpaid authorised absence. I am satisfied that Mr De Silva’s absence between 1 August and 6 August was unpaid; was an absence; and was authorised. Even though Mr De Silva turned up for work he was not rostered by the employer to work. It was therefore an “unpaid authorised absence” within the meaning of section 22(2)(b) of the FW Act.

[47] One further matter of relevance was put to me by Mr De Silva. He contends that the employer’s decision to not roster him during both periods of absence was not lawful in that it breached the consultation provision in clause 8.2 of the Vehicle Manufacturing, Repair and Service Retail Award 2010. He says that his absence could not be authorised if it was unlawfully imposed. Clause 8.2 provides as follows:

“8.2 Consultation about changes to rosters or hours of work

(a) Where an employer proposes to change an employee’s regular roster or ordinary hours of work, the employer must consult with the employee or employees affected and their representatives, if any, about the proposed change.

(b) The employer must:

(i) provide to the employee or employees affected and their representatives, if any, information about the proposed change (for example, information about the nature of the change to the employee’s regular roster or ordinary hours of work and when that change is proposed to commence);

(ii) invite the employee or employees affected and their representatives, if any, to give their views about the impact of the proposed change (including any impact in relation to their family or caring responsibilities); and

(iii) give consideration to any views about the impact of the proposed change that are given by the employee or employees concerned and/or their representatives.

(c) The requirement to consult under this clause does not apply where an employee has irregular, sporadic or unpredictable working hours.

(d) These provisions are to be read in conjunction with other award provisions concerning the scheduling of work and notice requirements.”

[48] I accept that Mr De Silva, as a regular and systematically employed casual employee was entitled to the benefit of the consultation provision in the Award (clause 8.2(c)). However, I do not consider that Murphy Holdings failed to consult about the roster changes, even if I were to accept Mr De Silva’s version of events that they were imposed on him against his wishes. I am satisfied that the discussions between Mr De Silva and Mr Hansen on both 18 March and 30 July/1 August met the minimum standard of consultation required in circumstances where a casual employee raises with the employer a circumstance that may or may not make it inappropriate for the employer to roster that employee. On 18 March Mr De Silva, on his version, expressed his view that he was able to continue working despite the diagnosis and disagreed with Mr Hansen’s view that it was unreasonable to do so having regard to the employer’s duty of care. Although the conversations of 18 March and 30 July/1 August were short, they were to the point and Mr De Silva knew why the employer had rostered an alternate employee in his place. Consultation requires an exchange and consideration of views but does not require agreement, particularly where an employee initiates the contact with information concerning their health and wellbeing that bears on the employer’s assessment of its duty of care.

[49] As Mr De Silva did not serve the minimum employment period required by the FW Act to be protected from unfair dismissal his application cannot proceed to hearing and determination. I dismiss the application and issue an Order in conjunction with this decision.

DEPUTY PRESIDENT

Appearances:

Mr P. De Silva on his own behalf.

Mr C. Mahoney for the Respondent.

Hearing details:

2017.

Adelaide.

18 September.

 1   Directions, Deputy President Anderson, 6 September 2017

 2 Section 383(a) Fair Work Act 2009

 3   Exhibit R1

 4   Applicant Submissions Exhibit A3 paragraph 27

 5   Ibid at paragraph 26

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