Mr Scott Jury v Chandler Macleod Group Limited
[2019] FWC 4838
•15 JULY 2019
| [2019] FWC 4838 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Scott Jury
v
Chandler Macleod Group Limited
(U2019/3513)
COMMISSIONER HUNT | BRISBANE, 15 JULY 2019 |
Application for an unfair dismissal remedy – jurisdictional objections – minimum employment period – dismissal not at initiative of employer – no transfer of business between former employer and Respondent – minimum employment period not met – application dismissed.
[1] On 28 March 2019 Mr Scott Jury made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Chandler Macleod Group Pty Ltd (Chandler Macleod) and that the dismissal was harsh, unjust or unreasonable.
Background and jurisdictional objections
[2] Mr Jury nominated in his application to the Fair Work Commission (Commission) that he had been employed by Chandler Macleod between 17 September 2018 and 19 March 2019, a period of six months and three days.
[3] In its Form F3 – Employer Response to Unfair Dismissal Application, Chandler Macleod raised two jurisdictional objections, contending that pursuant to s.383 of the Act, Mr Jury had not completed the applicable minimum employment period of six months, and that pursuant to s.386 of the Act, he had not been dismissed from his employment.
[4] Prior to this matter being allocated to me, Mr Jury filed submissions in response to Chandler Macleod’s jurisdictional objections.
[5] After allocation to me, I drew the parties’ attention to the Fair Work Commission’s (the Commission) Unfair Dismissal Benchbook and the information provided therein regarding minimum employment periods, how the period is calculated and what periods of service do and do not count towards an employee’s period of service, including periods of authorised but unpaid leave. I directed Mr Jury to file further submissions particularly addressing his period of service in light of his authorised but unpaid leave from late December 2018 to early January 2019. I directed Chandler Macleod to file material regarding its jurisdictional objections. Both parties filed further material regarding Chandler Macleod’s jurisdictional objections.
[6] The jurisdictional objections as to whether Mr Jury completed the applicable minimum period of employment and was dismissed from his employment were listed for hearing before me on 12 June 2019. This decision deals with both of those jurisdictional issues.
Hearing
[7] At the hearing before me Mr Jury represented himself. Mr Rob Harden, Manager – People & Culture appeared by video link from the Commission’s Sydney offices, representing Chandler Macleod.
Legislation
[8] Produced below are relevant sections of the Act. Each section’s relevance will become clearer once all of the parties’ evidence is reviewed below.
[9] Section 396 of Act sets out several matters that must be considered before the merits of an application can be considered, and states:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[10] Section 382 of the Act provides for when a person is protected from unfair dismissal, and states:
“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.”
[11] Section 383 of the Act defines the meaning of ‘minimum employment period’ and states:
“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.”
[12] Section 22 of the Act sets out the meanings of ‘service’ and ‘continuous service’ and states:
“22 Meanings of service and continuous service
(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 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) 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.
Meaning for Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2
(4) For the purposes of Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2:
(a) 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:
(i) any period of unauthorised absence; or
(ii) any other period of a kind prescribed by the regulations; and
(b) a period referred to in subparagraph (a)(i) or (ii) 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; and
(c) subsections (1), (2) and (3) do not apply.
Note: Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2 deal, respectively, with requests for flexible working arrangements, parental leave and related entitlements, and notice of termination or payment in lieu of notice.
(4A) Regulations made for the purposes of subparagraph (4)(a)(ii) may prescribe different kinds of periods for the purposes of different provisions to which subsection (4) applies. If they do so, paragraph (4)(b) applies accordingly.
When service with one employer counts as service with another employer
(5) If there is a transfer of employment (see subsection (7)) in relation to a national system employee:
(a) any period of service of the employee with the first employer counts as service of the employee with the second employer; and
(b) the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee's continuous service with the second employer (taking account of the effect of paragraph (a)), but does not count towards the length of the employee's continuous service with the second employer.
Note: This subsection does not apply to a transfer of employment between non-associated entities, for the purpose of Division 6 of Part 2-2 (which deals with annual leave) or Subdivision B of Division 11 of Part 2-2 (which deals with redundancy pay), if the second employer decides not to recognise the employee's service with the first employer for the purpose of that Division or Subdivision (see subsections 91(1) and 122(1)).
(6) If the national system employee has already had the benefit of an entitlement the amount of which was calculated by reference to a period of service with the first employer, subsection (5) does not result in that period of service with the first employer being counted again when calculating the employee's entitlements of that kind as an employee of the second employer.
Note: For example:
(a) the accrued paid annual leave to which the employee is entitled as an employee of the second employer does not include any period of paid annual leave that the employee has already taken as an employee of the first employer; and
(b) if an employee receives notice of termination or payment in lieu of notice in relation to a period of service with the first employer, that period of service is not counted again in calculating the amount of notice of termination, or payment in lieu, to which the employee is entitled as an employee of the second employer.
Meaning of transfer of employment etc.
(7) There is a transfer of employment of a national system employee from one national system employer (the first employer ) to another national system employer (the second employer ) if:
(a) the following conditions are satisfied:
(i) the employee becomes employed by the second employer not more than 3 months after the termination of the employee's employment with the first employer;
(ii) the first employer and the second employer are associated entities when the employee becomes employed by the second employer; or
(b) the following conditions are satisfied:
(i) the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer;
(ii) the first employer and the second employer are not associated entities when the employee becomes employed by the second employer.
Note: Paragraph (a) applies whether or not there is a transfer of business from the first employer to the second employer.
(8) A transfer of employment:
(a) is a transfer of employment between associated entities if paragraph (7)(a) applies; and
(b) is a transfer of employment between non-associated entities if paragraph (7)(b) applies.”
[13] Section 311 of the Act sets out when a transfer of business occurs, and states:
“311 When does a transfer of business occur
(1) There is a transfer of business from an employer (the old employer ) to another employer (the new employer ) if the following requirements are satisfied:
(a) the employment of an employee of the old employer has terminated;
(b) within 3 months after the termination, the employee becomes employed by the new employer;
(c) the work (the transferring work ) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;
(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).
Meaning of transferring employee
(2) An employee in relation to whom the requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring employee in relation to the transfer of business.
Transfer of assets from old employer to new employer
(3) There is a connection between the old employer and the new employer if, in accordance with an arrangement between:
(a) the old employer or an associated entity of the old employer; and
(b) the new employer or an associated entity of the new employer;
the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):
(c) that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and
(d) that relate to, or are used in connection with, the transferring work.
Old employer outsources work to new employer
(4) There is a connection between the old employer and the new employer if the transferring work is performed by one or more transferring employees, as employees of the new employer, because the old employer, or an associated entity of the old employer, has outsourced the transferring work to the new employer or an associated entity of the new employer.
New employer ceases to outsource work to old employer
(5) There is a connection between the old employer and the new employer if:
(a) the transferring work had been performed by one or more transferring employees, as employees of the old employer, because the new employer, or an associated entity of the new employer, had outsourced the transferring work to the old employer or an associated entity of the old employer; and
(b) the transferring work is performed by those transferring employees, as employees of the new employer, because the new employer, or the associated entity of the new employer, has ceased to outsource the work to the old employer or the associated entity of the old employer.
New employer is associated entity of old employer
(6) There is a connection between the old employer and the new employer if the new employer is an associated entity of the old employer when the transferring employee becomes employed by the new employer.”
[14] Section 386 of the Act deals with the meaning of dismissed and states:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
……..”
Summary of Mr Jury’s evidence and submissions
[15] Mr Jury was employed as a casual employee by a labour hire company, Future People when he commenced an assignment with the Australian Taxation Office (ATO) on 17 September 2018.
[16] Mr Jury submitted he took extended unpaid leave from his employment from late December 2018 due to his mother’s deteriorating health and subsequent passing. Mr Jury next attended for work on 3 January 2019, where he worked shorter hours on 3 and 4 January 2019. He then resumed normal hours from 7 January 2019.
[17] After his return to work in January 2019, Mr Jury submitted that he began to hear rumours that existing labour hire companies were no longer going to be included on the ATO panel of preferred labour suppliers.
[18] Mr Jury’s evidence is that he understood that all employees employed by Future People were to be “rolled over” to the company which took the place of Future People as a preferred supplier.
[19] On 19 February 2019, Mr Jury received an email from Mr Michael Adams, National Client Delivery Manager at Future People as follows:
“Dear Scott,
As you are aware, your assignment with the Australian Tax Office has been accepted for extension from your current expiry date of 3rd March 2019. At this time your employment with Future People will end and you will be offered employment with a new employer on the ATO Labour Hire Panel.
We are delighted to announce that Chandler Macleod Group Limited have been selected as this agency….
After many in depth discussions, we are confident that Chandler Macleod Group have the skills and technology to allow you a smooth transition to the next stage of your contract with the ATO.
To clarify, from 3 March 2019, Chandler Macleod Group Limited will be your official employer and responsible for all employment matters from weekly payroll through to employment issues and discrepancies….
Michael from Chandler Macleod will be in touch with you shortly to discuss your transition and what is required from you. Rest assured this will be a simple process with very little effort required on your part.
Your final pay from Future People for week end 1st March 2019 will be processed as normal on Wednesday 6th March…”
[20] Mr Jury signed a contract with Chandler Macleod on 20 February 2019, commencing on 4 March 2019.
[21] On 15 March 2019, Mr Jury was sent a show cause letter for allegedly repeatedly falling asleep at work. He attended a meeting on 18 March 2019 with Chandler Macleod representatives where he informed them in writing that he was not aware of a medical condition which would cause him to have micro-sleeps in the workplace, but he was prepared to undertake examination to see if there was an underlying medical condition that might be causing this to occur. He was only aware of one occasion where this had occurred.
[22] On 19 March 2019, Mr Jury was issued with the following letter from Mr Harden, which was dated 15 March 2019:
“Dear Scott
END OF ASSIGNMENT
I refer to our previous Show Cause letter dated 15 March 2019 and your written and verbal responses on 18 March 2019.
Following your responses, we sought additional information from the ATO to support the allegation that there have been repeated incidents of you falling asleep at work. The following information has been supplied by the ATO.
• On 28 February 2019, Belinda Reynolds, your manager at the time, spoke with you about falling asleep at work. The implication of what we were told by the ATO is that this was not the first time you had fallen asleep. This was apparently a comprehensive conversation. Belinda is reported to have asked you for an explanation including any health matters which may have contributed. She is reported to have said that the ATO may be able to support you with some strategies to help prevent you from falling asleep at work. She said that if this behaviour continued, your assignment would be ended. It was reported that you said you were unware that you were falling asleep at work and that you didn’t believe there was anything medically wrong with you that might be causing this. You allegedly said that you were unable to explain your behaviour.
• On 7 March 2019 the ATO reports that you were seen falling asleep at work again. There is no record that this was brought to your attention.
• On 15 March 2019 the ATO reports that you were observed to have fallen asleep at work again. David Cotton is said to have spoken to you about this by phone. At this point Chandler Macleod was advised for the first time.
In your response to the allegations you acknowledge that on 28 February you were “well and truly put on notice” by Belinda about what would happen if you fell asleep at work again. In your response to our allegations you did not categorically deny falling asleep at work after the incident on 28 February. Instead, you referred to the possibility of an undiagnosed underlying condition and your willingness to undergo testing. This again points to the possibility that you think there may be something which is causing you to doze off without knowing.
After reviewing your response and considering the additional information provided by the ATO, I find on the balance of probabilities that you have fallen asleep more than once since you were spoken to on 28 February. In view of the previous warning that you were given about falling asleep at work it has been decided to end your assignment with the ATO effective immediately. However, this does not mean that your employment with Chandler Macleod has also come to an end. You remain employed by Chandler Macleod, albeit that you do not currently have an active assignment. I invite you to contact Craig Moffatt [phone number] to discuss suitable alternative assignments. However, before pursuing this avenue, it is recommended you seek medical help to see if you do have an undiagnosed underlying condition.
I remind you that you can contact our Employee Assistance Program if you feel the need. This is a free, confidential and professional counselling and support service that can be contacted on [phone number].
Yours sincerely
Rob Harden
MANAGER PEOPLE AND CULTURE”
Submission on transfer of business
[23] As to whether Mr Jury’s service with Future People should count towards service with Chandler Macleod, Mr Jury submitted that unhelpfully, the term ‘outsourcing’ is not defined within the Act, and there is no court authority on the use of the term.
[24] Reference was made to the decision in Abbott v Acciona Infrastructure Australia Pty Ltd [2018] FWC 5609 where Deputy President Asbury stated:
“[12] It has been observed in a number of cases that there is no definition of ‘outsourcing’ in the Fair Work Act 2009 (Cth). It is also the case that there is no Full Bench authority directly on point in relation to the operation of section 311(5) in the context of an employee of a labour hire company who is employed by the labour hire company at a particular site or on a particular project and ceases employment with the labour hire company to take up employment with an entity on the same project, including the entity which owns or controls the site or operates the business in which the labour hire employee was engaged.”
[25] Mr Jury submitted that the Fair Work Act 2009, along with other Acts should be regarded as ‘beneficial legislation’, as a matter of statutory interpretation, if there is an ambiguity, it should be resolved in a manner that is most favourable to the individual or class of persons the Act is intended to benefit.
[26] Mr Jury stated that four decisions of the Commission assisted him with his argument, as follows:
• Whitehaven Coal Mining Ltd [2010] FWA 1142 (Whitehaven)
• Burdziejko v ERGT Australia Pty Ltd [2015] FWC 2308 (ERGT)
• Sapienza v Cash in TransitPty Ltd T/A Secure Cash [2017] FWC 5939 (Sapienza)
• Taulapapa v Toll Personnel Pty Limited [2018] FWC 6242 (Taulapapa)
[27] In Whitehaven, the applicant decided to directly employ several labour hire employees that had been working within the applicant’s enterprise and applied for an order that the employees would not be covered the labour hire agency’s enterprise agreement after commencing work with the applicant. In ordering that the relevant enterprise agreement would not cover the employees, Deputy President Sams stated:
“[12] I have no doubt that the specific requirements referred to above have been satisfied. In particular, there can be no doubt that the employees’ employment will be terminated by TESA; they will commence employment with the new employer, Whitehaven, within three months of their terminations; the employees will be performing the same work at the mine they have been working at as they were performing before termination; and, there remains a connection between the old and new employer by virtue of their outsourcing arrangements, which are to continue: see s 311(2) to (6).”
[28] In ERGT¸ Ms Burdziejko had been employed by a labour hire company (Hays) and engaged with ERGT Australia Pty Ltd (ERGT) for three months when she was offered ongoing employment with ERGT. ERGT submitted that there had been no transfer of business on the grounds that Hays had not undertaken any part of ERGT’s business or that ERGT had terminated any outsourcing arrangement between ERGT and Hays. In finding that there was a transfer of business between ERGT and Hays, Deputy President Gooley stated:
“[23] For the purposes of s.311(5), Hays is the old employer and ERGT is the new employer.
[24] Ms Burdziejko contended that ERGT outsourced work to Hays and then ceased to outsource the work to Hays. ERGT submitted that it did not outsource work to Hays because it never required Hays to perform work for it. It simply required Hays to provide it with “a warm body” to do the work. It was submitted that this was a straight labour hire arrangement and not caught by s.311(5).
[25] Because ERGT had gained a new client, it needed an additional employee. It sourced Hays to provide that labour as a labour hire company. Ms Burdziejko was then employed by Hays as a customer services officer at ERGT.
[26] Outsource is defined in the Macquarie dictionary as “to contract (work) outside the company rather than employ more in-house staff.”
[27] I was taken to three cases.
[28] In Whitehaven Coal Mining Ltd the applicant was seeking an order that the industrial instrument that applied to employees of TESA which provided labour hire services to Whitehaven not apply to the transfer of employees from TESA to Whitehaven no longer apply. While Whitehaven put that such an order may not necessary it sought one to put the question beyond doubt. Deputy President Sams found that there was a connection between the old and new employer by virtue of their outsourcing arrangements which are to continue; see 311(2) to (6).
[29] In Kerry Thorne v Jura Australia Expresso Pty Ltd Commissioner Cargill in determining that Ms Thorne had been employed for the minimum employment period held that:
[47] The application or otherwise, of subsection (5), turns on whether the arrangement by which Global had been providing labour could be considered to be “outsourcing” or something else. The evidence of Mr Liakatos is that Global was the company by which labour was provided for the shareholders of Jura. In my view the fact that there was an arrangement by which other things such as vehicles and IT services were provided does not mean it was not an outsourcing arrangement.
[48] I am satisfied that Jura had outsourced the transferring work to Global and, as at the end of 2011, had ceased to outsource that work. It follows that subsection (5) is met and, consequently, so is subsection (1). There has been a transfer of business and the applicant is a transferring employee as contemplated by subsection (2).
[30] ERGT distinguished Jura. Global provided other services unlike Hays which only provided labour.
[31] In Gausden v Silvan Pty Ltd Commissioner Spencer had to determine if Mr Gausden had been employed for the minimum period of employment. In that case like here Mr Gausden had been employed by Davidson Recruitment who provided his labour to Silvan. In that case Silvan submitted that the meaning to be given to “had outsourced .... work” is the contracting out of a business function or process to a third party entity.” Silvan submitted that Davidson Recruitment had no obligation to perform logistics and warehousing operations for the Respondent, that they were engaged purely as supplementary labour.
[32] Silvan further submitted that the application of the transfer of business provisions of the Act to labour hire arrangements “would be contrary to the object of Part 2-8 of the Act, which relates to the interests of employers in running their enterprises effectively.”
[33] Commissioner Spencer found that there was no connection between Davidson Recruitment and Silvan except via the labour hire arrangement. She found that there was no evidence of a transfer of business or a transfer of assets, nor was Mr Gausden a transferring employee.
[34] I was not taken to any full bench authorities dealing with this issue.
[35] It was submitted by ERGT that there would be a different outcome if Hays was contracted to provide wider services to ERGT.
[36] The difference is as follows. Company A decides it wants to contract out its maintenance work and it enters into a contract for the provision of maintenance services with Company B. This on ERGT’s contention would be an outsourcing of work. Alternatively Company A decides that it does not want to engage its maintenance workforce directly and engages a labour hire company, Company C, to provide workers only. In that situation on ERGT’s submission there would be no outsourcing of work. Subsequently in both examples Company A changes its mind and decides to again employ the workers doing the maintenance work directly. In the first example the employees’ service with Company B would count as service with Company A unless advised in advance in writing that it would not count. In the second example the employees’ service with Company B would not count.
[37] I do not accept the submission of ERGT that it did not outsource the work because prior to employing Ms Burdziejko the work performed by Ms Burdziejko was not required to be performed. ERGT employed customer service officers. Because it had gained a new client it had additional work that it needed to be performed. Instead of engaging an employee to perform that work, it engaged Hays to provide a person to perform that work. It outsourced the work to Hays. Further, after a period of time, it decided that it no longer wanted Hays to perform that work and decided to perform the work in house and employed Ms Burdziejko to do the same work.
[38] Unless the contract with Hays is a sham, upon engaging Hays to provide labour ERGT is no longer performing that work. Instead of ERGT engaging labour to perform the work Hays engaged the labour to perform work.
[39] The transfer of business provisions in the Fair Work Act 2009 were intended to have wider application than that provided for in the predecessor acts where the focus was on whether there was a transfer of the business between the old employer and the new employer. The application of the predecessor provisions focused the character of the business in the hands of the old employer and the new employer. The Explanatory Memorandum makes it clear that the new provisions do not focus on whether the new employer had taken over that business or part thereof but whether there has been a transfer of work between the two employers and the reason for the transfer of that work.
[40] One only needs to take the words of the Act and apply it here.
(a) the transferring work had been performed by one or more transferring employees (Ms Burdziejko), as employees of the old employer (Hays), because the new employer (ERGT), had outsourced the transferring work to the old employer (Hays); and
(b) the transferring work is performed by those transferring employees (Ms Burdziejko), as employees of the new employer (ERGT), because the new employer (ERGT), has ceased to outsource the work to the old employer (Hays).
[41] I therefore accept that there is a connection between the old employer (Hays) and the new employer (ERGT) such that there was a transfer of business from Hays (the first employer) to ERGT (the second employer). [footnotes omitted]”
[29] In Sapienza, Mr Sapienza applied for an unfair dismissal remedy against Cash in Transit Pty Ltd T/A Secure Cash (CIT). CIT objected to the Mr Sapienza’s application on the basis that he had not completed the requisite minimum period of employment, alleging that Mr Sapienza had originally been employed by another entity, West Coast Cash Exports Pty Ltd (West Coast), and Mr Sapienza had been subsequently employed by CIT following the end of a subcontracting relationship between CIT and West Coast. In deciding that there had been a transfer of business and Mr Sapienza’s service with West Coast should count towards his service with CIT, Deputy President Gooley held:
“Facts not in dispute
1. Mr Sapienza commenced employment with West Coast Cash Escorts Pty Ltd on 23 November 2016.
2. West Coast Cash was contracted by Cash in Transit Pty Ltd to perform work for it in Western Australia.
3. Clients are contracted to Cash in Transit Pty Ltd trading as Secure Cash and Cash Logistics Pty Ltd is the agent appointed by Secure Cash to manage and allocate contractors for these clients and the clients had been allocated to West Coast Cash.
4. The owner of West Coast Cash decided that he no longer wished to perform work for Cash in Transit and as a consequence Cash in Transit decided to perform the work itself and directly engage employees to perform the work.
5. West Coast Cash and Cash in Transit have the same post office box address.
6. West Coast Cash and Cash in Transit are not associated entities.
7. Cash in Transit was not assigned any contracts of West Coast Cash.
8. Cash in Transit did not have the use of any assets of West Coast Cash after West Coast Cash ceased providing services to Cash in Transit.
9. Employees of West Coast Cash were advised that they could apply for work with Cash in Transit.
10. Mr Sapienza did apply for work but was not required to complete the full induction. He was only required to complete that part of the induction that provided his personal details including his banking details.
11. Mr Sapienza commenced employment with Cash in Transit on 20 March 2017.
…
[18] I am satisfied that Mr Sapienza’s employment with West Coast Cash (the old employer) was terminated and I am satisfied that Mr Sapienza was employed by Cash in Transit (the new employer) within three months of that transfer. I am satisfied that the work performed by Mr Sapienza for the new employer is the same or substantially the same as the work Mr Sapienza performed for West Coast Cash.
[19] The question that needs to be determined is whether there is a connection between West Coast Cash and Cash in Transit.
[20] I am satisfied that Cash in Transit does not own or has the beneficial use of some or all of the assets (whether tangible or intangible) of West Coast Cash.
[21] I am satisfied that West Coast Cash did not outsource the work to Cash in Transit.
[22] However I am satisfied that Cash in Transit had outsourced its work to West Coast Cash. This is supported by the agreed fact number 2 and the evidence of Mr Bacchus and the contract between Mr Sapienza and West Coast Cash. I am satisfied that the transferring work performed by Mr Sapienza as an employee of Cash in Transit occurred because Cash in Transit decided to cease outsourcing the work to West Coast Cash.
[23] There was no evidence that, prior to commencing employment with Cash in Transit, Mr Sapienza was provided with written advice that his service with West Coast Cash would not count as service with Cash in Transit.
[24] I am therefore satisfied that Mr Sapienza’s service with West Coast Cash counts a service with Cash in Transit and hence Mr Sapienza was employed for the minimum period of employment at the date of his dismissal. For these reasons the jurisdictional objection is dismissed and Mr Sapienza’s application for an unfair dismissal remedy can be determined. [footnotes omitted]”
[30] In Taulapapa, Mr Taulapapa had been employed by Staff Australia Pty Ltd (Staff Australia) and engaged on a casual basis with Toll Personnel Pty Limited (Toll). Toll objected to Mr Taulapapa’s application for an unfair dismissal remedy on the basis that he had not completed the relevant minimum period of employment, alleging that there was no connection between Staff Australia and Toll sufficient to satisfy s.311(1)(d) as Toll had not outsourced work to Staff Australia and consequently could not then cease to outsource work. Mr Taulapapa submitted that Toll had outsourced work to Staff Australia and Toll had since ceased to outsource that work. Mr Taulapapa submitted that there was a connection between Staff Australia and Toll pursuant to s.311(5) and in turn s.311(1)(d) was satisfied.
[31] In determining that a transfer of business had occurred, Commissioner Cambridge held:
“[35] In addressing the requirements of subsection 311 (1) of the Act the matters contained in paragraphs (a) to (d) therein must be satisfied in order to establish that there was a transfer of business. The facts in this case involved, (a) the termination of the applicant’s employment with Staff Australia and, (b) the commencement of employment with the employer within three months of the termination, and (c) the work the applicant performed for the employer was the same or substantially the same as that performed for Staff Australia.
[36] In order to satisfy paragraph (d) of subsection 311 (1) of the Act, the evidence would need to establish that there is a connection between the old employer and the new employer as described in any of subsections (3) to (6). In this instance the contest has been reduced to the question as to whether or not the terms of subsection (5) can be satisfied in respect to the new employer ceasing to outsource work to the old employer.
[37] Subsection 311 (5) of the Act deals with circumstances where a new employer ceases to outsource work to an old employer such that if such circumstances exists, there is established to be a connection between the old employer and the new employer. The operation of the terms of subsection 311 (5) has been examined in two particular Decisions of this Commission that have been previously mentioned, namely Yarra City and ERGT. As mentioned in both the Yarra City and ERGT Decisions, the Act does not provide any definition for the word “outsource” and the Macquarie dictionary definition of; “to contract (work) outside the company rather than employ more in-house staff” would appear to provide for the appropriate meaning to be given to the word “outsource” as it is to be applied in subsection 311 (5) of the Act.
[38] Further, as was recognised in both the Yarra City and ERGT Decisions, the transfer of business provisions in the Act are to be “broadly interpreted” and are not intended to “focus on whether the new employer had taken over the business or part thereof but whether there has been a transfer of work between the two employers and the reason for the transfer of that work.” In this regard, it is relevant to reproduce that part of the Explanatory Memorandum that dealt with what has become subsection 311 (5) of the Act wherein it is stated:
“1226. The intention of this subclause is that a transfer of business occurs where a new employer decides to in-source the work previously done by the transferring employee of the old employer.” [emphasis added]
[39] Consequently, any application of the provisions of subclause 311 (5) of the Act should focus upon the work done by the transferring employee rather than any broader contemplation of outsourcing any particular business activity or functions. Thus, with due respect to the conclusions that were reached in the Decision in Yarra City, the fact that the new employer may not have in-sourced all of the transferring work and retained a mixture of direct hire and labour hire personnel, should not be interpreted to mean that the employer had not ceased to outsource the work. Rather, the test to be applied is whether the work of the transferring employee had ceased to be outsourced, (aka in-sourced).
[40] Further, it is important to recognise that the protection from unfair dismissal provisions of the Act are beneficial legislation, and the minimum employment period establishes a qualification for access to the beneficial legislation. Subsection 384 (2) of the Act is clearly intended to ensure that casual employees who work on a regular and systematic basis and who are transferred to employment with a new employer are not denied access to the beneficial legislation unless the new employer informs them in writing that their period of service with the old employer would not be recognised.
[41] Employees may often have little knowledge of the details that might surround any transfer of business. The experience for an employee such as the applicant in this case, is that on the next regular day of employment he arrived at work and performed the same work that he had undertaken on a regular and systematic basis since about at least May 2017. When, on 3 April 2018, the applicant transferred from employment with Staff Australia to Toll Personnel, the only change to his employment circumstances that the applicant would have been able to identify would have been the provision of pay advice from Toll Personnel rather than Staff Australia. This change would have also been reflected by the invoicing in respect of the work of the applicant from 3 April 2018 onwards being provided to Toll Transport from Toll Personnel rather than from Staff Australia.
[42] Even in circumstances which unquestionably involve a transferring employee in relation to a transfer of business, subsection 384(2) (b) (iii) provides the new employer with the capacity to ensure that the period of service with the old employer would not be recognised. Consequently, the legislative emphasis is upon the provision of information to the employee who, as a consequence of the change in employment, loses access to the beneficial legislation. In circumstances where the new employer fails to provide information, it would seem that the employee should generally be entitled to believe that they had not lost any service based entitlements such as access to the beneficial legislation providing for remedy for unfair dismissal.
[43] Consequently, in this context, the particular circumstances of the applicant can be translated (and inserted) into the particular provisions of subsection 311 (5) of the Act as follows:
(5) There is a connection between the old employer (Staff Australia) and the new employer (Toll Personnel) if:
(a) the transferring work had been performed by one or more transferring employees (the applicant), as employees (an employee) of the old employer (Staff Australia), because the new employer (Toll Personnel), or an associated entity of the new employer (Toll Transport), had outsourced the transferring work to the old employer (Staff Australia) or an associated entity of the old employer; and
(b) the transferring work is performed by those transferring employees (the applicant), as employees (an employee) of the new employer (Toll Personnel), because the new employer (Toll Personnel), or the associated entity of the new employer (Toll Transport), has ceased to outsource the work to the old employer (Staff Australia) or the associated entity of the old employer.
[44] The application of the relevant circumstances in this instance to the terms of subsection 311 (5) of the Act, reveals the reliance upon and significance of the connection between the associated entities of Toll Transport and Toll Personnel. The resultant position can be alternatively expressed as follows: On 13 March 2017, when Toll Transport commenced to undertake the Asahi Prospect warehouse operations, it initially outsourced the labour requirements to, inter alia, Staff Australia (the old employer). Subsequently, on 3 April 2018, when the applicant commenced employment with Toll Personnel (the new employer), an associated entity of the new employer (Toll Personnel), namely Toll Transport, ceased to outsource the work to Staff Australia.
[45] Thus, the circumstances of the applicant in this instance satisfy the provisions of subsection 311 (5) of the Act. There is a connection between the old employer (Staff Australia) and the new employer (Toll Personnel) primarily because an associated entity of the new employer (Toll Transport) ceased to outsource the work to the old employer (Staff Australia). [footnotes omitted]”
[32] Mr Jury submitted that Whitehaven, ERGT, Sapienza and Taulapapa should be followed in this matter and submitted that there had been a transfer of business between Future People and Chandler Macleod and accordingly he is a transferring employee and has met the minimum employment period of six months.
[33] Mr Jury submitted that if I determined that there had not been a transfer of business in this matter, then no casual labour hire employee could ever satisfy s.311 of the Act. Mr Jury submitted that it could not have been the intention of Parliament that a transfer of business would not have occurred in the scenario arising in this matter, especially in light of the ‘get out clause’ available to employers under s.384(2)(b), such that a period of service with an old employer will not count towards a period of service with a new employer if the new employer informs the employee in writing that before the commencement of the new employment that the period of service with the old employer will not count towards the period of service with the new employer.
Submission on calculation of length of service
[34] If Mr Jury is correct on the issue of transfer of business, it is necessary to consider all of the days within the period of time to determine if all of the days count towards the length of service.
[35] Mr Jury commenced with Future People on 17 September 2018, and nominated 19 March 2019 as his dismissal date. That is a period of six months, three days.
[36] Mr Jury submitted that the period in which he was caring for his mother, and on her passing, being the period 18 December 2018 to 2 January 2019 should be excused as he had a medical certificate from his mother’s doctor excusing him from attending work from 20 December 2018. He considers that on 18 and 19 December 2018 he was taking two days’ unpaid carers’ leave.
[37] Further, Mr Jury stated that there had been an ATO ‘shut down’ following the completion of work on 21 December 2018 and until the offices again opened on 2 January 2019. Accordingly, Mr Jury does not consider that the days of 24, 27, 28 and 31 December 2018 should count against him.
[38] Mr Jury submitted that there are public policy considerations at play if his service would be considered not to meet the required time due to spending time caring for his terminally ill mother, and then laying her to rest.
Was there a dismissal?
[39] In April 2019, Mr Jury was due to meet with Centrelink officials. In correspondence dated 8 April 2019 to Chandler Macleod he indicated that he was in urgent need of a separation certificate. On 8 April 2019 he was sent a separation certificate which stated:
“Not separated, Scott is currently employed on a casual basis, however his most recent assignment concluded. Final payment was made on 20.03.2019.”
[40] In response, Mr Jury replied:
“To all concerned parties,
Please refer to the contents of the attached email dated Tuesday 2 April 2019.
In the view of the Author, the contents of such email, coupled with the fact that I have lodged and Unfair Dismissal Application in the Fair Work Commission against Chandler Macleod Group Limited, clearly demonstrate an intension on my behalf that I can no longer maintain a productive working relationship of Employee and Employer with Chandler Macleod Group Limited and/or any of it affiliates or associates.
Should any confusion exist either with the content of the email of 2 April 2019, or the above, I shall repeat and reiterate that I can no longer maintain a productive working relationship between myself, Scott Charles Jury as Employee, and Chandler Macleod Group Limited as Employer.
I consider that such a relationship of Employer and Employee ceased on the earliest of the following scenarios –
(1) When Chandler Macleod Group Limited my Employer issued me with a Formal dismissal Notice on 19 March 2019; and/or
(2) When I provided written instructions via Email on 2 April 2019 formally requesting a Separation Certificate or in the alternative a Letter of Service outlining the dates of service; and/or
(3) On today’s date, 8 April 2019 with the instructions contained in this email.
Your attendance to the various administrative actions generated via this email at the earliest possible opportunity would be greatly appreciated.
Kind regards
Scott Jury [sic]”
[41] Mr Jury submitted that he had been dismissed at Chandler Macleod’s initiative upon his receipt of Mr Harden’s letter of 19 March 2019 (extracted above at [22]); the first scenario identified in Mr Jury’s email of 8 April 2019.
Summary of Chandler Macleod’s submissions
Submission on transfer of business
[42] Chandler Macleod submitted that it was already on the ATO panel when Future People ceased being on the panel. It submitted that Mr Jury commenced employment with Chandler Macleod on 4 March 2019. It denied that there had been a transfer of business between Future People and Chandler Macleod.
[43] Relevant to the consideration of transfer of business, Chandler Macleod agreed that:
(a) The employment of an employee (Mr Jury) of an older employer (Future People) had terminated;
(b) Within 3 months after the termination, the employee became employed by the new employer (Chandler Macleod); and
(c) The work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer.
[44] It was submitted that there is not a connection between the old employer and the new employer as described in any of subsections 311(3) to (6).
[45] Relevant to any transfer of assets, Chandler Macleod denied that there was any transfer of assets between Future People and Chandler Macleod. It submitted that if the ATO contract could be considered an asset, it was not transferred. Simply, Chandler Macleod was already supplying employees to work at the ATO, and ATO’s contract with Future People came to an end. There was no contract between Future People and Chandler Macleod.
[46] As to whether the old employer outsourced its work to the new employer, it was submitted that the work of Mr Jury for Future People was never outsourced to anyone; Future People lost its contract. Future People didn’t outsource the work to another labour hire company. The work went back to the ATO to be allocated to another provider.
[47] Relevant to whether the new employer ceases to outsource the work to the old employer, the new employer is Chandler Macleod and the old employer is Future People. It never arose that Chandler Macleod ceased to outsource work to Future People.
[48] It was submitted that relevant to s.311(6), Future People and Chandler Macleod, they are not associated entities. Chandler Macleod submitted that while s.311(1)(a) – (c) was satisfied, subsection (d) was not, and all four subsections needed to be satisfied for there to be a transfer of business.
Submission on calculation of length of service
[49] It was submitted that Mr Jury took unpaid leave on the following dates whilst employed by Future People:
• 30 November 2018
• 3, 14, 18, 19, 20, 21, 24, 27, 28, 31 December 2018
• 2 January 2019
• 7 February 2019
[50] Chandler Macleod submitted that as a casual employee, Mr Jury was entitled to two days of unpaid carer’s leave and two days of unpaid compassionate leave. Even taking those days into account, and if Mr Jury was correct about there having been a transfer of business, his service would not equate to six months.
Was there a dismissal?
[51] It was submitted that the issuing of the letter at [22] did not constitute termination at the initiative of the employer. Chandler Macleod contends that if Mr Jury considered that to be the case, why did he need to write to Chandler Macleod on 8 April 2019 and resign?
[52] It was contended that if Mr Jury had consulted with a medical practitioner and had determined what was making him fall asleep at work, Chandler Macleod would have been able to assist him with finding an alternative assignment.
[53] Chandler Macleod referred to a decision in Trakas v BPL Adelaide Pty Limited & Ready Workforce (A Division of Chandler Macleod) Pty Ltd T/A Chandler Macleod[2018] FWC 1530 where Deputy President Anderson held:
“[157] The contract of employment expressly provided that an assigned employee, such as Mr Trakas, did not have rights to work at a particular location beyond a particular assignment. It also expressly provided that “the end of an assignment does not mean that your employment by the Company has been terminated.”
[54] Mr Jury’s conditions contained the same terms, however it was conceded that there was a qualification on finding Mr Jury a new assignment, that being that he undertake a medical examination.
[55] It was submitted that Chandler Macleod was not able to offer to Mr Jury an alternative assignment because he has raised a question mark about his medical fitness that needed to be resolved. Chandler Macleod was prepared to wait until Mr Jury had a medical clearance and then pursue an alternative assignment for him, but before he provided evidence that he was fit for assignment, Mr Jury resigned and made it clear that he could no longer maintain a productive working relationship.
Consideration
[56] Pursuant to s.396(b) of the Act, I must determine whether Mr Jury was a person protected from unfair dismissal before considering whether Mr Jury was dismissed from his employment.
[57] The application was made within time, whether the date of 19 March 2019 or 8 April 2019 is considered to the date the relationship ended.
[58] There are no Small Business Fair Dismissal Code considerations necessary, nor is it case of genuine redundancy.
[59] I am required to determine if Mr Jury was protected from unfair dismissal pursuant to s.382 of the Act. It is not contested that Mr Jury earned less than the applicable high income threshold, nor is it contested that Mr Jury’s casual employment was on a regular and systematic basis with a reasonable expectation of continuing employment on a regular and systematic basis. The initial question to determine is if Mr Jury served the minimum employment period of six months. If he did not, the application must be dismissed.
Was there a transfer of business?
[60] I am satisfied that s.311(1)(a) – (c) has been met, that being:
(a) the employment of an employee of the old employer has terminated;
(b) within 3 months after the termination, the employee becomes employed by the new employer;
(c) the work (the transferring work ) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;
[61] It is necessary, however, for a transfer of business to be satisfied for either one of s.311(3) – (6) to have been met.
[62] Considering s.311(3), I am not satisfied that there was a transfer of assets or the beneficial use of assets (whether tangible or intangible) between Future People and Chandler Macleod. Simply, Future People used to supply employees to the ATO, and when it ceased doing so due to loss of contract, Chandler Macleod did, and in fact was already doing so. There were simply no assets, and further, there was no ‘arrangement’ between Future People and Chandler Macleod.
[63] Considering s.311(4), I do not accept that there is a connection between Future People and Chandler Macleod because it cannot be demonstrated that Future People has outsourced work to Chandler Macleod. Future People did not have work to outsource; it was terminated from the contract dated 1 March 2019. It is not the scenario where Future People was a principal labour hire supplier and it sought to bring in under its umbrella additional labour hire companies to supply labour. Simply, it ceased to provide services to the ATO from 1 March 2019, and Chandler Macleod, an existing provider of labour began providing additional labour from 4 March 2019.
[64] Considering s.311(5), I do not accept that it can be satisfied. Chandler Macleod, had never outsourced work to Future People, and then made a decision to bring that work in-house.
[65] I consider that the authorities Mr Jury seeks to rely on can be distinguished on the following basis:
(a) Whitehaven – it was found that Whitehaven as the principal no longer wished to outsource to TESA as the contractor, and accordingly, the new employer, Whitehaven, had ceased to outsource the work;
(b) ERGT – it was found that ERGT as the principal no longer wished to outsource to Hays as the contractor, and accordingly, the new employer, ERGT, had ceased to outsource the work;
(c) Sapienza – it was found that Cash in Transit Pty Ltd as the principal no longer wished to outsource to West Coast Cash as the contractor, and accordingly, the new employer, Cash in Transit Pty Ltd, had ceased to outsource the work; and
(d) Taulapapa – it was found that where the work had been performed by a contractor, Staff Australia to Asahi, and Asahi had contracted Toll Transport to take over its warehouse function, Toll Transport essentially became the principal. Toll Transport continued to outsource some parts of its labour requirement to Staff Australia, until it decided it no longer wished to, at which point Toll Personnel began to supply staff. There was a transfer of business relevant to the decision by Toll Transport, an associated entity of Toll Personnel to no longer outsource the work to Staff Australia.
[66] In Mr Jury’s case, none of the above examples apply. There is no relationship between Future People and the ATO, or the ATO and Chandler Macleod, other than at some point in time, the ATO requiring the services of Future People or Chandler Macleod. There is no relationship between Future People and Chandler Macleod. I do consider, however, the below authorities to cast some light on similar scenarios as faced by Mr Jury.
[67] In Szybkowski v Monjon Australia Pty Ltd [2010] FWA 7321, the applicant, Mr Szybkowski had been employed by ‘Protect Security’ as a security guard. Protect Security had held a contract to provide security services to ‘Martha Cove’ and Mr Szybkowski had worked at Martha Cove for seven years. Protect Security lost its contract to provide security services to Martha Cove as part of a tender process and Monjon Australia Pty Ltd (Monjon) took over the contract. Monjon employed Mr Szybkowski with no significant gap in employment periods and engaged him at Martha Cove performing the same work as he had done previously. However, Mr Szybkowski was dismissed approximately two months after starting employment with Monjon. Commissioner Roe found that s.311(4) and (5) of the Act did not apply on the basis that it was “not a case of contracting out or contracting in…”. 1
[68] In Watson v Oliver-Ramsay Group Pty Ltd [2015] FWC 221, Mr Watson had been employed by a contractor company and engaged as a security guard at a university since 2006. The first contractor company lost its contract to provide services and the contract was awarded to Oliver-Ramsay Group Pty Ltd (Oliver-Ramsay). Oliver-Ramsay employed Mr Watson in the same position at the university, but dismissed him at the end of his probationary period. Considering those circumstances, Vice President Watson held,
“[15] The circumstances involve the loss of a contract to a competitor contractor, and no transfer of assets from the former contractor to the new contractor. These circumstances do not fall within any of the requisite circumstances in sub-sections (3)-(6) of s.311 - the definition of a transfer of business. Regardless of whether the employer informed the employee in writing as provided for in s.384(2)(b), there is no basis to suggest that the service with the previous employer should be taken into account because there is no transfer of business.”
[69] The Vice President went on to consider the meaning of ‘transfer of business’ independently of s.311 of the Act, and considered:
“[16] Because the context of s.311 is different to the unfair dismissal provisions of the Act, and it is not clear that the definitions for the purposes of various instruments extends to the interpretation of other provisions of the Act, it is necessary to consider the meaning of the term “transfer of business” independently of the definition in s.311. The general notion of a transmission of business has been dealt with by the High Court in relation to the broader description of whether an employer is a “successor, assignee or transmittee (whether immediate or not) to or of the business or part of the business of an employer who was a party to the industrial dispute, including a corporation that has acquired or taken over the business or part of the business of the employer” in s.149 of the Workplace Relations Act 1996. In that regard the High Court has said:
“As a general rule, the question whether a non-government employer who has taken over the commercial activities of another non-government employer has succeeded to the business or part of the business of that other employer will require the identification or characterisation of the business or the relevant part of the business of the first employer, as a first step. The second step is the identification of the character of the transferred business activities in the hands of the new employer. The final step is to compare the two. If, in substance, they bear the same character, then it will usually be the case that the new employer has succeeded to the business or part of the business of the previous employer.”
[17] However in my view, the concept of a “transfer of business” in s.22(7) is narrower than the concept of a “successor, etc to a business” in s.149. The former describes a process that implies a transaction between two entities. The latter describes the net effect of events. As the High Court made clear in Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd, the latter concept does not necessarily depend on a transaction between the parties. Gleeson CJ, Hayne, Callinan and Heydon JJ said (at [37-38]):
“The "business" of an employer may be described in a number of ways. In many contexts it will suffice to describe the kind of activity conducted. A description like "manufacturing", "retailing" or the like may do. In other contexts more detail may be necessary, as, for example, "window frame manufacturing" or "toy retailing". In s 149(1)(d), however, more and different detail is necessary in order to decide whether one employer is the successor to or of the "business" or part of the "business" of another. So much follows inevitably from the need to consider whether the new employer is a successor to a part of the former employer's business. But more fundamentally than that, it follows from the fact that s 149(1)(d) focuses upon succession, assignment and transmission to or of a business which is identified as the business of an employer. That necessarily directs attention to what it is that the former employer had which is to be described as the "business" of that employer.
In many cases the answer to the questions just presented will be provided by looking at some transaction between the two employers. Where there has been some transaction between them, it will be possible to see whether the former employer transferred the whole, or part, of its business to the new employer. But in other cases there may be no transaction between the former employer and the employer alleged to be its successor. So, for example, in cases of inheritance between natural persons, there may be no transaction between the two employers but it may be clear that the new employer is the successor of the business of the former employer. Thus, the existence of some transaction between the two employers is not essential in order to show that one is the successor to the business of the other. Further, whether or not there was some transaction between the new employer and the former employer, there may be a real question about whether what the new employer enjoys is the whole or a part of the "business" of the former employer.”
[18] The definition of transfer of business in s.311 requires a connection between the employers of a requisite kind. If that definition does not apply, I am nevertheless of the view that the general notion of a transfer of business involves a similar type of connection or transaction between the two employers. There is no such connection present in this case. It follows that these circumstances do not involve a transfer of business. [footnotes omitted]”
[70] I too find that there has not been a transfer of business between the competitor companies, Future People and Chandler Macleod. There simply was no outsourcing of work or transaction between Future People and Chandler Macleod or any connection which could satisfy s.311(4) or (5).
[71] Section 311(6) cannot be satisfied as Future People and Chandler Macleod are not associated entities.
[72] Accordingly, I determine that there has not been a transfer of business as s.311(1)(d) has not been met and it must have been met for there to be a transfer of business.
Calculation of length of service
[73] If I am wrong relevant to whether there had been a transfer of business, the next consideration required would be to determine if Mr Jury had met the requisite six months’ service, taking into account the unpaid days off work he had during the six months and three days of service with both Future People and Chandler Macleod.
[74] On the evidence before the Commission, Mr Jury did not attend for 13 days that are work days. On Mr Jury’s submissions, the office was closed on four of those days on account of a Christmas shut-down. I accept this evidence, but don’t consider it necessary to determine if those days would count towards a period of continuous service, or whether those days would be considered to be an excluded period pursuant to s.22(1). That is because of the remaining nine days, all of those days are counted as a period of unpaid authorised absence.
[75] Although the submissions of Chandler Macleod were to the effect that perhaps four days could be ‘forgiven’ on account of two days of unpaid compassionate leave and two days of unpaid carer’s leave, s.22(2) of the Act does not allow such types of leave to be considered. Only Division 8 of Part 2-2 which deals with community service leave would count towards a period of continuous service.
[76] Clearly Mr Jury’s circumstances in taking unpaid leave from his employer, Future People at the time of his mother’s grave illness and subsequent passing was extremely unfortunate and understandable. The reasons, however, for a person’s non-attendance at work are not a consideration the Commission can have when determining whether the person’s service counts, where it falls outside of community service leave or a period of stand down. There are no regulations dealing with other matters or other types of leave.
[77] If it was necessary to determine this issue (which I do not consider it is), I would find that on account of Mr Jury’s 13 days of unpaid authorised absence over the period of six months and three days, his service would fall short of the required period of six months. Accordingly, his application would be dismissed.
Was there a dismissal?
[78] On account of my findings above, I do not consider it necessary to determine if there was a dismissal at Chandler Macleod’s initiative.
Conclusion
[79] I determine that Mr Jury was employed by Chandler Macleod for less than six months, and therefore did not complete the minimum employment period of six months pursuant to s.383(a) of the Act.
[80] For that reason I am satisfied that Mr Jury was not, pursuant to s.382 of the Act, a person protected from unfair dismissal.
[81] Accordingly, I must dismiss Mr Jury’s application and I do so.
COMMISSIONER
Appearances:
Jury S, for the Applicant
Harden R, Chandler Macleod Group Limited
Hearing details:
Brisbane
2019
12 June.
Final written submissions:
Submissions of the Applicant, 7 June 2019.
Submissions of the Respondent, 7 June 2019.
Printed by authority of the Commonwealth Government Printer
<PR710235>
1 [2010] FWA 7321, [13].
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