Mr Peter Stevens v Blue Cross Community and Residential Services Pty Ltd
[2010] FWA 2294
•22 MARCH 2010
[2010] FWA 2294 |
|
DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Unlawful and Harsh, Unjust or Unreasonable) termination of employment
Mr Peter Stevens
v
Blue Cross Community and Residential Services Pty Ltd
(U2009/4499)
COMMISSIONER CRIBB | MELBOURNE, 22 MARCH 2010 |
Termination of employment – jurisdiction – casual employee – qualifying period.
[1] This decision concerns an application lodged by Mr Peter Stevens (the applicant) in relation to the termination of his employment by Blue Cross Community and Residential Services Pty Ltd (the respondent). Mr Stevens contends that the termination of his employment was harsh, unjust or unreasonable and that there was a breach of s.661 of the Workplace Relations Act 1996 (the Act).
[2] The respondent has raised a jurisdictional objection to the application on the basis that the applicant was a casual employee engaged for a short period or, in the alternative, had not completed a qualifying period of employment (s.638(1)(d) and s.643(6) – (7) of the Act). The respondent contended that the applicant was therefore excluded from making an application on the grounds that that termination was harsh, unjust or unreasonable (s.643(1)(a) of the Act).
[3] The respondent objected to conciliation prior to determination of the jurisdictional objection. The Act does not require Fair Work Australia (FWA) to hold a hearing to decide on the objection. Accordingly, both parties were invited to provide written submissions.
[4] The respondent provided written material on 9 September 2009 and 24 September 2009. The applicant’s written submissions were received on 24 September 2009.
[5] This decision deals with the jurisdictional objection raised by the respondent.
SUBMISSIONS
Respondent
[6] It was submitted by Mr Rahilly on behalf of the respondent that:
- The applicant commenced employment on 23 July 2008 as a casual employee and was paid as such. 1
- The contract of employment which was signed by the applicant on 23 July 2008 contained a six month qualifying period (clause 5). 2
- The applicant resigned in writing on 26 February 2009, giving 24 hours notice. 3
- The Facility Manager took notes of a conversation with the applicant on 21 March 2009 during which he requested reinstatement. A meeting was held with the applicant on 22 March 2009 and the Facility Manager’s notes indicated that the applicant had been reinstated. 4
- Shifts were performed by the applicant from 23 July 2008 to 28 February 2009 and then from 24 March 2009 to 19 May 2009. 5
[7] The respondent contended that the computer print out showed that the applicant did not work any shifts after 28 February 2009 until he was re-employed on around 23 March 2009. In the alternative, if the Tribunal did not accept that there were two separate periods of employment, it was argued that the total period of Mr Stevens’ employment was less than 12 months. However the primary submission was stated to be that the applicant had been employed as a casual employee under two separate contracts of employment. The respondent said that the applicant was a regular and systematic casual employee during both periods of his employment and that he may have had an expectation that that would continue.
[8] However, Mr Rahilly submitted that, even if the periods of employment were taken together, it would amount to less than 12 months’ employment. Accordingly, it was contended that the applicant was excluded from making an application as his employment with the respondent amounted to less than 12 months. 6
[9] In the respondent’s submissions in reply, Mr Rahilly contended that, in the applicant’s response, it was accepted that Mr Steven’s period of employment was “prior to the 12 month period”. It was therefore said that the jurisdictional objection had been made out. 7
Applicant
[10] Mr Claven confirmed, on behalf of the applicant, that Mr Stevens had been employed by the respondent on a casual basis. The date of the commencement of employment was said to be 22 July 2008. It was also confirmed that he was subject to a qualifying period of six months which ended on approximately 22 January 2009. 8
[11] The applicant had given the respondent a written letter of resignation on 26 February 2009. He had subsequently contacted the respondent on 21 March 2009 requesting reinstatement. This was agreed to but the applicant did not sign a second contract of employment. It was argued that the applicant, therefore, was subject to one continuous period of employment. 9
[12] It was stated by Mr Claven that the applicant was dismissed on 21 May 2009, following a telephone discussion with his Manager, during which a number of performance issues were raised with him. He received a letter of termination dated 21 May 2009 which referred to the qualifying period clause of the contract of employment. It was the applicant’s contention that he had not been given the opportunity to discuss the issues that were raised prior to his dismissal or the opportunity to seek representation. 10
[13] Finally, on behalf of the applicant, Mr Craven stated that it was accepted that, with the date of termination being 21 May 2009, this was prior to the 12 month period. 11
CONCLUSIONS
[14] Section 638 of the Act relevantly states:
“638 Exclusions
Exclusions from Subdivisions B, D and E and sections 660 and 661
(1) The following kinds of employee are excluded from the operation of Subdivisions B, D and E and sections 660 and 661:
….
(4) For the purpose of paragraph (1)(d), a casual employee is taken to be engaged for a short period unless:
(a) subject to subsection (5)—the employee is engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months; and
(b) the employee has, or but for a decision by the employer to terminate the employee’s employment, would have had, a reasonable expectation of continuing employment by the employer.
(5) If:
(a) a casual employee was engaged by a particular employer on a regular and systematic basis for a sequence of periods during a period (the first period of employment) of less than 12 months; and
(b) at the end of the first period of employment, the casual employee ceased, on the employer’s initiative, to be so engaged by the employer; and
(c) the employer subsequently again engages the employee on a regular and systematic basis for a further sequence of periods during a period (the second period of employment) that starts not more than 3 months after the end of the first period of employment; and
(d) the total length of the first period of employment and the second period of employment is at least 12 months;
paragraph (4)(a) is taken to be satisfied in relation to the employment of the employee.”
[15] There was no dispute between the parties that Mr Stevens commenced employment on or about 23 July 2008 and that the termination of his employment occurred on 21 May 2009. It was also common ground that Mr Stevens was employed on a regular and systematic basis and that he may have had an expectation of on-going work. It was also accepted by the applicant that, when he was dismissed on 21 May 2009, it was “prior to the 12 month period”. 12
[16] On this basis, therefore, I find that Mr Stevens commenced as a casual employee on 23 July 2008 and that his employment was terminated on 21 May 2009. There was a dispute between the parties as to whether this was one period of employment or two separate periods of employment. This issue does not need to be determined as, on the basis of either calculation, the applicant had less than 12 months employment with the respondent at the time his employment was terminated.
[17] Consequently, I find that Mr Stevens was employed as a casual employee and that the period of his employment was less than 12 months. Therefore, Mr Stevens is excluded from being able to make an application under s.643(1) or s.661 of the Act.
[18] The application is dismissed.
[19] An order 13 to this effect will be issued separately.
COMMISSIONER
1 Attachment A to Respondent’s submissions dated 9 September 2009
2 Attachment B to Respondent’s submissions dated 9 September 2009
3 Attachment C to Respondent’s submissions dated 9 September 2009
4 Ibid
5 Attachment D to Respondent’s submissions dated 9 September 2009
6 Respondent’s submissions dated 9 September 2009
7 Respondent’s submissions in reply dated 24 September 2009
8 Applicant’s submissions dated 24 September 2009
9 Ibid
10 Ibid
11 Ibid
12 Ibid
13 PR995258
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