Mr Sikoti Ooms v Best Security Pty Ltd

[2013] FWC 3239

[2013] FWC 3239

FAIR WORK COMMISSION

DECISION

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

Mr Sikoti Ooms
v
Best Security Pty Ltd
(U2013/7811)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 28 MAY 2013

Summary: application under s.394 of the Act - unfair dismissal remedy- objection on the basis of s.383 of the Act - minimum period of employment - dismissed on or following first shift.

[1] This is an application by Mr Sikoti Ooms (“the Applicant”) seeking an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (“the Act”). The Applicant’s employment was terminated with effect on 8 March 2013 by Best Security Pty Ltd (“the Respondent”).

[2] At the outset, the Respondent objected to the Fair Work Commission (“the Commission”) dealing with the application for reasons that it is alleged that the Applicant had not served the minimum period of employment as defined under the Act and that his application was not competent for that reason.

[3] Because I determined that this matter would be dealt with off the documents, I corresponded with the Applicant and the Respondent in the following terms:

“Mr Ooms has pressed that his application for an unfair dismissal remedy under s.394 of the Act, as made on 22 March 2013, be considered by the Fair Work Commission (“the Commission”).

The Applicant's employer has objected to the dealing with the application for reasons that it is alleged that the Applicant had not served the minimum period of employment as defined under the Act and that his application was not competent for that reason.

Section 396 of the Act states that the Commission must determine such matters as whether the applicant was employed for the period required in s.382(a) of the Act before such time as it considers the merits of the application.

Section 382(a) of the Act provides as follows:

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

The definition of the minimum employment period as referred to in s.382(a) of the Act is set out in s.383 of the Act and provides 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.

I do not intend to determine this application by way of a formal hearing. I will determine the matter, instead, off the documents.

Because of this, I would be grateful if both Mr Ooms and Ms Dunn were to indicate to me in writing by email as promptly as they can whether they agree with the following claims (1)-(4) below.  If you disagree with anything in claims (1) – (4) below please detail why you object and what is your alternative claim.

The Claims

(1) The Applicant was employed by the Respondent (Best Security Pty Ltd) on 8 March 2013.

(2) The Applicant was employed at this time to perform security guard duties (as a crowd controller) at a Brisbane nightclub venue on Friday and Saturday nights. Initially, the Applicant was to perform two shifts of five hours duration on each of those nights (Friday 8 March 2013 and Saturday 9 March 2013).

(3) The Applicant performed one five-hour shift at his place of work on the Friday night (8 March 2013) before such time as he was dismissed.

(4) It appears the Applicant was dismissed because his employer was informed by the client that it no longer wished the Applicant to perform duties on its premises.

Please indicate by return email whether any of the claims made in Claims (1) – (4) above are wrong before Friday, 24 May 2013.

I will rely on the material I receive for the purposes of determining this matter.”

[4] Not unexpectedly, the Applicant indicated in his reply that he concurred with the above four claims, as they were drawn from his own application.

[5] The Respondent submitted a somewhat different factual matrix, however.

[6] The Respondent claimed that the Applicant was employed on a casual basis as a crowd controller on 5 March 2013.

[7] On 8 March 2013 the Applicant completed a single shift at the Blue Fin Fishing Club, so the Respondent claims.

[8] Thereafter - on 9 March 2013 - the Respondent contends that a shift change was made to the Applicant’s next shift. However the Applicant was not able to be contacted and he arrived for his next shift at the venue at which he was not to perform the shift. When the Applicant was informed by telephone that his shift had changed he was said to have been abusive and terminated the telephone conversation at his own initiative.

[9] On 12 March 2013 the Respondent’s Human Resources Manager telephoned the Applicant to discuss the manner of his communications with the Respondent. The Respondent claims that the Applicant was threatening and abusive in the course of that conversation.

[10] The General Manager for the Respondent subsequently telephoned the Applicant that same day to investigate the matter, it was said that she was also threatened and was the subject of abusive language.

[11] Consequently, the Respondent claims that it took the decision to terminate the Applicant’s employment on 12 March 2013.

[12] The Respondent claims further that there was another unpleasant conversation between the Managing Director (Mr Anthony Thomas) and the Applicant on the evening of 13 March 2013, but despite this the Managing Director for the Respondent undertook to meet with the Applicant. When the Managing Director contacted the Applicant the following day to determine when they could meet it is said that he was subject to further abuse from the Applicant.

[13] Some short time later it is said that the Respondent directed an e-mail to the Applicant which stated, amongst other things, that:

We confirm your termination of employment effective 12 March 2013.

Due to your abusive behaviour and threats towards my staff there is no possibility of you working for BEST at any stage in the future.

Factual matrix

[14] It is not necessary to determine the precise factual matrix in this matter. If I accept that the dismissal did not take effect until 14 March 2013 (which is the date of the dismissal e-mail that was directed to the Applicant and after the date the Applicant claimed the dismissal took effect) the application is still well short of the minimum period of employment as stipulated at s.383 of the Act.

[15] As I have said above, the Applicant’s own claim was that his employment was terminated on or about 8 March 2013.

[16] Irrespective as to whether I accept the Applicant’s claim as to the date of his dismissal or else the dates as claimed by the Respondent, the application is well within the minimum period of employment that must be served before such time as such an application can be made.

[17] Further, in the circumstances, there is no need for me to determine whether the Respondent is a small business employer for the purposes of s.23 of the Act or not, and whether the applicable minimum period of employment is six months or 12 months.

[18] The Applicant was demonstrably employed for less than the minimum period of employment regardless of which of the competing factual matrices (in relation to the dismissal date) I accept.

[19] The Applicant is therefore unable to make an application for an unfair dismissal remedy under s.394 of the Act.

[20] The Applicant has been advised on a number of occasions that his application may fall foul of the minimum period of employment provisions of the Act as set out above. The Applicant has nonetheless pressed his application. There may be a reason for this.

[21] The Applicant’s own materials demonstrate that he is also aggrieved for reason that he is of the view that his dismissal was for reasons of his Pacific Islander origins. His materials make no reference to any interactions with the Respondent of the kind set out earlier.

[22] The Applicant complains that a number of employees of Pacific Islander backgrounds had been dismissed in recent times from the same venue. Of course, none of this was made out for current purposes.

[23] I have had no cause to reach any conclusions about which of the wider set of claims are truthful. The jurisdictional question before me does not require such findings to be made.

[24] Notwithstanding that, if the Applicant is of the view he was dismissed for reasons of his racial origins, he may wish to consider an application under s.365 of the Act, in which the circumstances of his dismissal may be considered for purposes of whether adverse action was taken (that is, the dismissal) because of a proscribed reason.

[25] However, I do indicate to the Applicant that such an application is subject to meeting the statutory timeframes within which an application must be made.

[26] In this respect, s.366 of the Act provides as follows:

366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

Conclusion

[27] On the basis of the claims made in this matter it is evident that the application is not and cannot be a competent application because the Applicant did not serve the minimum period of employment for purposes of s.383 of the Act. The application under s.394 of the Act is therefore dismissed.

SENIOR DEPUTY PRESIDENT

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