Mr Rhys Junior Huirau Twomey v Que 5 Pty Ltd
[2022] FWC 2945
•18 NOVEMBER 2022
| [2022] FWC 2945 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Rhys Junior Huirau Twomey
v
Que 5 Pty Ltd
(U2022/9132)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 18 NOVEMBER 2022 |
Application for an unfair dismissal remedy
On 9 September 2022, Mr Twomey (the Applicant) made an application for an unfair dismissal remedy having been dismissed by Que 5 Pty Ltd (the Respondent). The Respondent objected to the application on the basis that it was a small business employer and had complied with the Small Business Fair Dismissal Code. Whilst in its Form F3 the Respondent had not objected to the application on the basis that the Applicant’s employment did not meet the minimum employment period, the issue was raised with the parties. The Applicant stated in his Form F2 that he had commenced work with the Respondent on 3 January 2022 and his dismissal took effect on 1 September 2022. Further he had identified on his Form F2 that the Respondent had 1-14 employees. The Respondent was agreeable that the Applicant commenced employment on 3 January 2022, notwithstanding having referred to a commencement date of 3 January 2021 on the Form F3. Further, the Respondent identified on the Form F3 that it had six employees.
Section 382 of the Fair Work Act 2009 (Cth) (the Act) provides that person is protected from unfair dismissal in circumstances where they have satisfied the minimum employment period. For a small business employer this period is one year and for all other employers it is six months.[1]
The parties were informed about the implications arising from the Respondent purportedly being a small business employer and the Applicant’s account regarding his start and finish dates with the Respondent. I informed the parties that before considering the merits of the Applicant’s unfair dismissal application, I would determine whether or not the application was beyond the jurisdiction of the Commission, on the basis that the Applicant had not met the minimum employment period. It was the Applicant’s preference to proceed to hearing and his preference was accommodated.
For the reasons that follow, I have dismissed the Applicant’s unfair dismissal application, having found that the Respondent was a small business employer and as such the minimum employment period for the Applicant was one year. The Applicant had not satisfied the minimum employment period with the Respondent and accordingly, an Order[2] dismissing the Applicant’s unfair dismissal application is issued in conjunction with this decision.
Background
From the evidence provided it appears that the Applicant was a truck driver responsible for towing trailers.[3] The parties agree that the Applicant commenced employment with the Respondent on 3 January 2022.
According to the Respondent the Applicant was, one evening, undertaking a ‘run’ with a trailer in tow. The trailers are said to have the names of the Respondent’s customers imprinted upon them in bold. During the run, the Applicant was said to have observed that a car had been following him with its lights on full beam. The Respondent submitted that the Applicant stopped the truck and had a serious altercation with a member of the public (presumedly the driver of the car). The member of the public was said to have taken a photo of the Respondent’s truck and trailer. The trailer carried the name of Hillside Meat Processors on the side of it. The incident was said to have been reported to the police by the driver of the car in question.
According to the Respondent, the police presented to Hillside Meat Processors and questioned them about the situation. The Respondent submitted that thereafter the police contacted the owner of the Respondent and asked who the driver of the truck was ‘at 12:15am’. The Respondent informed the police that it was the Applicant. The Respondent’s owner, Mr Coulter, said he was asked by the police to complete a statement.
According to Mr Coulter he had spoken to the Applicant about ‘bullying factors’ that other drivers had raised against the Applicant. Mr Coulter noted that given the numerous complaints about the Applicant regarding his attitude toward Hillside Meat Processors, the Respondent opted to dismiss the Applicant on the spot.
The Applicant tendered into evidence multiple payslips to show the period of employment with the Respondent and his pattern of work. The first payslip with a payment date of 9 January 2022, provided remuneration for the pay period of 3 January 2022 to 9 January 2022. During that period the Applicant had worked 38 hours. The Applicant provided approximately 40 payslips which extended from 3 January 2022 to the fortieth payslip which covered the period 29 August 2022 until 30 August 2022. The Applicant acknowledged that at times he had been advanced additional payments by the Respondent when he was ‘broke’.
It appeared uncontentious that the Applicant’s employment had concluded in late August early September 2022. In the Form F2, the Applicant identified that his dismissal took effect on 1 September 2022. Similarly, the Respondent identified in the Form F3 that the date of dismissal was 1 September 2022.
At hearing, Mr Coulter gave unchallenged evidence that the Respondent was a small business employer with six employees.
The minimum employment period
A person is protected from unfair dismissal if they have completed the minimum employment period.[4] Section 383 of the Act sets out the meaning of the minimum employment period as follows:
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.
The meaning of the term ‘small business employer’ is found in s 23 of the Act:
Meaning of small business employer
(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):(a) the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.Section 384 of the Act is concerned with how an employee’s period of employment is calculated for the purpose of determining if the employee has satisfied the minimum employment period. The relevant part reads:
(1) [Meaning of period of employment]
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. (emphasis added)
The starting point is that a period of employment is also referred to as a period of continuous service.
Section 22 defines the terms ‘service’ and ‘continuous service’, the relevant subsections follow:
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) [Exceptions to meaning of service]
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 under Part 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) [Excluded period does not break continuous service]
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…
A period of continuous service can be made up of a series of periods of service.[5] An employee may have a series of contiguous periods of service with an employer that may count towards a single period of employment (period of continuous service) with that employer.[6]
However, continuous periods of service will only count towards the employee’s period of employment if the requirements in s 384(2)(a)(i) and (ii) are met. Those requirements are, in short, that the employment was on a regular and systematic basis, and during the period of service, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.
Consideration
It is not in contest in this case that the Respondent is a small business employer and was at the relevant time. It follows that the minimum employment period for the Applicant was one year.
Furthermore, it is not in dispute that the Applicant commenced employment with the Respondent on a casual basis on 3 January 2022, notwithstanding the information provided by the Respondent initially in its Form F3. Further, both parties agree that the Applicant’s dismissal took effect on 1 September 2022.
Whilst the Applicant has provided 40 payslips evincing the number of hours worked each week during the period of his employment, it has proven unnecessary to examine those for the purpose of ascertaining whether the Applicant’s engagement as casual worker was ‘regular’ as understood by reference to the judgment in Yaraka Holdings Pty Ltd v Giljevic.[7] However, those same payslips have illuminated that, consistent with both the Applicant’s account and that of the Respondent, his period of employment was less than one year.
Conclusion
To be protected from unfair dismissal, it must be established that the Applicant served contiguous periods of service amounting to one-year preceding dismissal. That requirement has not been met given the Applicant’s dismissal came into effect on 1 September 2022 and he commenced employment on 3 January 2022. Therefore, the Applicant has not met the minimal employment period.
DEPUTY PRESIDENT
Appearances:
Mr Rhys Junior Huirau Twomey on behalf of the Applicant;
Mr Phil Coulter on behalf of the Respondent Que 5 Pty Ltd
Hearing details:
Perth (Telephone)
17 November 2022.
Final written submissions:
[1] Fair Work 2009 (Cth), s 383 (The Act).
[2] PR748073.
[3] Form F3 para 3.1.
[4] The Act (n 1) s 382(a).
[5] Wayne Shortland v The Smiths Snackfood Co Ltd (2010) 198 IR 237, 12 (Shortland).
[6] Ibid.
[7] [2006] ACTCA 6, 149 IR 339; see also Chandler v Bed Bath N’ Table Pty Ltd[2020] FWCFB 306; Greene v Floreat Hotel Pty Ltd[2020] FWCFB 6019.
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