Mr Steven Oddy v Bradley Industries Qld

[2020] FWC 5713

[2020] FWC 5713

FAIR WORK COMMISSION

DECISION

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

Mr Steven Oddy
v
Bradley Industries QLD
(U2020/11192)

COMMISSIONER HUNT BRISBANE, 27 OCTOBER 2020

Application for an unfair dismissal remedy – whether applicant met minimum employment period – uncontested evidence that applicant did not meet minimum employment period – application dismissed for lack of jurisdiction.

[1] On 18 August 2020, Mr Steven Oddy made a telephone application pursuant to s.394 of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) alleging he was dismissed from Bradley Industries QLD (Bradley Industries) and the dismissal was harsh, unjust or unreasonable.

[2] On 2 September 2020, Mr Oddy filed an amended completed and signed Form F2 Application via post. Mr Oddy’s application nominated his employment with Bradley Industries having commenced on 5 February 2020 and ending on 6 August 2020, a period marginally greater than six months. It is noted that Mr Oddy does not use an email account.

[3] On 11 September 2020, Bradley Industries filed a Form F3 Employer Response to the application. The response nominated Mr Oddy’s employment having commenced on 25 February 2020 and ending on 6 August 2020, a period shorter than six months. Despite the period of employment nominated by Bradley Industries as being shorter than six months, no jurisdictional objection was made by it.

[4] After an unsuccessful conciliation before a staff Conciliator, the information before me is that Mr Oddy advised the staff Conciliator by telephone that he was unsure whether he wished to proceed or withdraw his application. I understand that he requested a further period to decide. Between 22 September 2020 and 2 October 2020, the staff Conciliator attempted to follow up Mr Oddy eight times by telephone without success.

[5] This matter was subsequently allocated to my chambers for determination.

Jurisdictional issue for determination

[6] On allocation to my chambers, noting that Mr Oddy’s Form F2 provides that the employment commenced on 5 February 2020 whereas Bradley Industries’ Form F3 provides that the employment commenced on 25 February 2020, I raised with the parties the potential jurisdictional issue as to whether Mr Oddy had met the minimum employment period to be protected from unfair dismissal. It is noted that all correspondence that was sent from my chambers was sent to Mr Oddy via express post at his nominated postal address for service.

[7] I directed Bradley Industries to provide time and wages records and confirm whether it wished to raise a jurisdictional objection to the application that Mr Oddy has not met the minimum employment period.

[8] Bradley Industries subsequently filed an amended Form F3 Employer Response raising a jurisdictional objection that Mr Oddy had not met the minimal employment period of six months. Together with the amended Form F3 it filed:

•  An employment contract dated 24 February 2020 between Mr Oddy and Bradley Industries; and

•  Payroll advices for the period of 1 January 2020 to 13 October 2020, which included the first payroll advice of Mr Oddy for the pay period of 25 February 2020 to 2 March 2020.

[9] After receipt of the above, the below correspondence was sent from my chambers:

“Dear parties,

Reference is made to the recent materials filed by the Respondent, copies of which have been posted to the Applicant together with this correspondence.

Minimum employment period

The Commissioner has considered the materials and advises that her preliminary view is that the Applicant has not met the minimum employment period of six months and is therefore not a person protected from unfair dismissal.

The Commissioner asks the Applicant to advise by telephone or post whether he disagrees with the Commissioner’s preliminary view, by no later than Friday, 23 October 2020.  If no correspondence is received from the Applicant the Commissioner will determine the jurisdiction of the application “on the papers” (without an oral hearing).

Contact with the Applicant

The Commission has attempted to contact the Applicant on several occasions by telephone between 17 September 2020 and 9 October 2020 without success.  It is noted that an application remains on foot until such time as it is resolved or is withdrawn by the Applicant.  If the Applicant wishes to withdraw the application he is asked to advise the Commission by telephone or by post.

Kind regards” [original emphasis]

[10] No correspondence was received to my chambers from Mr Oddy by telephone or post by Friday, 23 October 2020.

Relevant legislation

Initial matters

[11] Under section 396 of the Act, the Commission is obliged to decide the following matters 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.

When is a person protected from unfair dismissal?

[12] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(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.

Minimum employment period

[13] Section 383 of the Act defines the meaning of “minimum employment period” which

in Mr Oddy’s case, given Bradley Industries has stated that it has 15 or more employees, is six months. Section 384 relevantly provides:

“384 Period of employment

(1) 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.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; …”

[14] If the minimum employment period has not been met, Mr Oddy’s application must be dismissed.

Consideration

[15] On the uncontested evidence before me filed by Bradley Industries, which I accept, I find that Mr Oddy’s period of employment was from 25 February 2020 to 6 August 2020. At the time of dismissal Mr Oddy had been employed for a period of less than six months, and therefore he had not completed the required minimum employment to be protected from unfair dismissal.

Conclusion

[16] The jurisdictional objection raised by Bradley Industries in its amended Form F3 is upheld.

[17] Mr Oddy’s application for unfair dismissal is dismissed. An Order, [PR723968], will be issued concurrently with this decision.

COMMISSIONER

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