Mr Stephen Hutson v Marker Aviation Services Pty Ltd

[2019] FWC 8062

[2019] FWC 8062

FAIR WORK COMMISSION

DECISION

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

Mr Stephen Hutson
v
Marker Aviation Services Pty Ltd
(U2019/9164)

COMMISSIONER HUNT BRISBANE, 26 NOVEMBER 2019

Application for an unfair dismissal remedy – jurisdictional objection that respondent is a small business employer and applicant did not meet minimum employment period – respondent was a small business at relevant date – periods of paid personal leave not excluded from continuous service – applicant meets minimum employment period – jurisdictional objection dismissed – matter to be programmed for hearing.

Background and jurisdictional objections

[1] On 16 August 2019 Mr Stephen Hutson made an application under s.394 of the Fair Work Act (the Act) alleging that he had been dismissed by Marker Aviation Services Pty Ltd (Marker Aviation) and the dismissal was harsh, unjust or unreasonable.

[2] Mr Hutson nominated his period of employment as 2 August 2018 until 5 August 2019. He later confirmed to the Fair Work Commission (the Commission) that his commencement date was 23 July 2018.

[3] In its Form F3 – Employer Response to Unfair Dismissal Application, Marker Aviation raised two jurisdictional objections, contending that pursuant to s.383 of the Act, Mr Hutson had not completed the applicable minimum employment period of twelve months, and it is a small business; and that pursuant to s.386 of the Act, he had not been dismissed from his employment.

[4] In a witness statement filed with the Commission and served on Marker Aviation, Mr Hutson nominated his period of service as follows:

Date of commencement: 23 July 2018

Date of termination 5 August 2019

Periods of unpaid personal leave	Running balance
7.5 hours – pay period ending on 26 December 2018;	7.5 hours
2.0 hours – pay period ending on 3 April 2019;	9.5 hours
15 hours - pay period ending on 10 April 2019;	24.5 hours
3.5 hours – pay period ending on 29 May 2019;	28 hours
15 hours – pay period ending on 12 June 2019;	43 hours
0.5 hours – pay period ending on 24 July 2019;	43.5 hours / 5.7 days
22.5 hours – pay period ending on 7 August 2019.	66 hours / 8.7 days

[5] Mr Hutson also had periods of paid personal leave and annual leave.

[6] It is Mr Hutson’s contention that his service with Marker Aviation was 1 year and 14 days being the period 23 July 2018 to 5 August 2019. After subtracting 8 days and 6 hours, it is his contention that his service was still greater than 12 months.

[7] Marker Aviation agrees with Mr Hutson that the absences nominated by him at [4] were periods of unpaid leave and do not count towards continuous service with Marker Aviation.

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.

[13] 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.

……..”

Request by parties to deal with application ‘on the papers’

[14] After filing material and submissions, each party informed the Commission that the matter could be determined by the Commission ‘on the papers’. On the jurisdictional objection of the minimum employment period, I find that I can determine the matter on the papers on account of there being no facts in dispute on this issue.

Summary of the respondent’s evidence and submissions

[1] Mr Peter Gough, owner and Managing Director of Marker Aviation provided a witness statement, as did Ms Angela Bentley, Administrative Assistant.

[2] Ms Bentley’s evidence is that as at 31 July 2019, Marker Aviation employed eight people, including Mr Hutson.

[3] It is the respondent’s contention that the date the employment ended was 5 September 2019, and not 5 August 2019, and that it was Mr Hutson who initiated the termination. In any event, Mr Hutson did not perform work between the period 5 August 2019 and 5 September 2019, so the relevant end date for the purposes of calculating the minimum employment period is immaterial.

[4] The respondent agrees with Mr Hutson that had his employment not included any excluded periods, he would have completed the minimum employment period of 12 months at 5:00pm on 22 July 2019. However, by 22 July 2019, Mr Hutson had been absent on unpaid leave for 43.5 hours, or 5.7 days using a calculation of 7.6 hours for an ordinary day.

[5] On the respondent’s calculations, Mr Hutson would have been required to ‘make up’ 5.7 days before he realised 12 months’ continuous service. That service would be the period from 8:00am on 23 July 2019 until approximately 2:30pm on 30 July 2019.

[6] Mr Hutson did work the period 8:00am, 23 July 2019 until 2:00pm, 26 July 2019, being a period of 3.6 working days which goes toward the calculation of his continuous service. As I understand it, the respondent contends that Mr Hutson would have had, as at 2:00pm 26 July 2019, a shortfall of 2.1 days, that being the difference between 5.7 days and 3.6 days.

[7] Mr Gough’s evidence is that Mr Hutson abruptly left work at approximately 2:00pm on 26 July 2019 with no instruction given by him to other staff of processes or protocols to following during his absence.

[8] On 29 July 2019, Mr Hutson attended for work at 7:30am, but left at 8:00, indicating he was unwell. At 11:51am he sent a text message to a fellow employee stating he had a chest infection.
[9] At 3:45pm on 30 July 2019, Mr Hutson called Ms Bentley and informed her that he would be attending work the next day. On 31 July 2019 he did not attend for work. At 3:26pm he sent a text message to a fellow employee stating that he would not be attending for work for the rest of the week up to and including 2 August 2019.

[10] Ms Bentley’s evidence is that on 1 August 2019, Mr Hutson produced medical certificates to the respondent. One medical certificate is dated 29 July 2019, certifying Mr Hutson unfit for work for the period 29 – 30 July 2019 inclusive. Another medical certificate produced certified Mr Hutson unfit for work for the period 31 July 2019 to 2 August 2019 inclusive.

[11] On 1 August 2019 Ms Bentley processed Mr Hutson’s pay and paid to him 24.5 hours of paid personal leave.

Consideration

[12] Pursuant to s.396(b) of the Act, I must determine whether Mr Hutson was a person protected from unfair dismissal before considering whether Mr Hutson was dismissed from his employment.

[13] The application was made within time, when considering Mr Hutson’s earliest nominated termination date of 5 August 2019. I find that the respondent is a small business, employing only eight employees, and therefore the minimum employment period to be met is 12 months.

[14] I am required to determine if Mr Hutson was protected from unfair dismissal pursuant to s.382 of the Act. It is not contested that Mr Hutson earned less than the applicable high income threshold. The initial question to determine is if Mr Hutson served the minimum employment period of twelve months. If he did not, the application must be dismissed.

Calculation of length of service

[15] On the respondent’s calculations, as at 2:00pm on 26 July 2019, Mr Hutson was 2.1 days shy of 12 months’ continuous service. On 1 August 2019, Mr Hutson was paid 24.5 hours of paid personal leave on account of being certified unfit for work, and having at least 24.5 hours of accrued personal leave available to him. The period of 24.5 hours is equivalent to 3.2 work days and exceeds 2.1 days.

[16] Periods of paid leave are not taken to be an excluded period for the purposes of s.22 of the Act. Accordingly, without having regard to any further periods of leave beyond 1 August 2019, I find that as at 1 August 2019, Mr Hutson had 12 months and 1.1 days’ service. It is not necessary to determine the period 2-5 August 2019 as Mr Hutson has already met the minimum employment period.

Conclusion

[17] Having met the minimum employment period of 12 months, the respondent’s jurisdictional objection is dismissed, and Mr Hutson’s application will proceed to determination as to whether there was a dismissal pursuant to s.386 of the Act.

[18] I consider it necessary to convene a hearing or a determinative conference pursuant to s.397 of the Act on account of the matter involving facts the existence of which are in dispute. Accordingly, I will not make a decision ‘on the papers’ relevant to the remaining jurisdictional objection.

[19] The parties will be contacted for programming of the matter.

COMMISSIONER

Final written submissions:

Applicant’s reply submissions, 24 October 2019

Respondent’s submissions, 14 October 2019

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