Mr Travis Carpenter v Carruthers Contracting

[2013] FWC 8826

[2013] FWC 8826

FAIR WORK COMMISSION

DECISION

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

Mr Travis Carpenter
v
Carruthers Contracting
(U2013/10878)

COMMISSIONER SPENCER BRISBANE, 13 NOVEMBER 2013

Application for relief from unfair dismissal - jurisdictional objection - minimum employment period.

Introduction

[1] This determination relates to an application made by Mr Travis Carpenter (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on the grounds that the termination of his employment from Carruthers Contracting (the Respondent/the Employer) was harsh, unjust and or unreasonable. The Respondent in this matter has raised a jurisdictional objection (the jurisdictional objection) to the application alleging that the Applicant was not an employee who has completed the minimum employment period with the Respondent and also that the Applicant’s dismissal was a case of genuine redundancy.

[2] The matter was conciliated before a Fair Work Commission (FWC) Conciliator but the matter did not settle.

[3] After conciliating the matter the parties were unable to resolve the dispute. The Commission issued Directions to both parties. These Directions referred the parties to the full text of the relevant sections of the Act (extracted below) and required the Applicant (as the Respondent was relying upon material already filed) to file submissions and evidence in response to the jurisdictional matters only.

[4] After some confusion on the part of the Applicant the matter was relisted for conference at which the Applicant failed to attend. After advising that this was a mistake on the Applicant’s part the Commission issued further directions to the parties that again set out the relevant provisions of the Act.

[5] The parties confirmed in writing that they wished to rely on the material already filed and were content for the Commission to consider the matter on that basis without the need for a formal hearing.

[6] It is noted that while not all of the evidence and submissions in the matter are referred to in this decision, all of such have been considered.

Relevant Provisions of the Legislation

[7] The substantive application has been made pursuant to s.394 of the Act. Section 394 provides as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

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

(b) within such further period as the FWC allows under subsection (3).”

[8] Section 382 of the Act provides:

“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....”

[9] Section 383 of the Act provides:

“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.”

[10] Section 384 of the Act defines “period of employment” as follows:

“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...”

[11] Section 385 of the Act provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[12] Section 389 of the Act defines genuine redundancy as:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

Summary of the Respondent’s Submissions and Evidence

[13] The Respondent submitted that the Applicant had not worked with the Respondent for a period of a least six months at the time of his dismissal. Further the Respondent alleged that any period he did work was as a casual employee and that he was not employed on a regular and systematic basis and had no expectation of continuing ongoing employment.

[14] The Respondent submitted a “letter of offer” addressed to the Applicant and dated 11 January 2013.

[15] Clause 1.1 of the letter advises that the Applicant’s employment will be on a casual basis, as required and that as a casual there is no guarantee of ongoing or regular work.

[16] The “Form F3 Employer’s Response” filed by the Respondent indicates that the Applicant commenced employment with the Respondent on 8 January 2013. Attached to the Respondent’s materials are the Applicant’s timesheets, the first of which commences on the week ending 8 January 2013. It appears the pay cycle of the Respondent is from Wednesday to a Tuesday. From this evidence the Applicant commenced employment with the Respondent at least on Wednesday, 2 January 2013.

Summary of the Applicant’s Submissions and Evidence

[17] The Applicant filed some material in response to the Directions.

[18] This material included a copy of a pay slip for the period of 2 January 2013 to 8 January 2013 being the correspondence payslip to the first of the timesheets filed by the Respondent.

[19] The Applicant also filed various photos which he alleged evidenced unsafe work practices.

[20] The Applicant filed an unsigned statutory declaration of Starr Rogers. This statement does not address any of the issues relevant to this jurisdictional objection, being whether the Applicant is a person who has completed the minimum employment period. It has not been given any weight in reaching this decision.

[21] A further statutory declaration was filed by the Applicant, again unsigned, and apparently made by James Carpenter. This document states that Mr James Carpenter has had “consistent and ongoing work” for the last three years for “Sunshine Coast Kirb a Chanel”. It is unclear how this bears upon the jurisdictional application as relates to the Applicant and in particular the Applicant’s length of employment with this Respondent. It has not been given any weight in reaching this decision

[22] An unsigned statutory declaration was filed by Travis Mach Carpenter. This statement by the Applicant stated that he did not “resigned from Sunshine Coast Kurb and Chanel and was not fired but transfered to Carruther Contracting” (errors in original).

[23] The Applicant stated that he is aware the Respondent has received new contracts on the Coast and that there is an issue regarding understaffing in relation to the concrete crew, being the crew the Applicant was previously employed on.

[24] The Applicant stated that on the “day of my termination 13/6/2013 I had been employed for 6 (months) 7 days”.

[25] The Applicant made various submissions as to redundancy but given the findings of the Commission in relation to the minimum employment period it is not necessary to recount these at this time.

Consideration

[26] It is common ground between the parties that the Applicant’s employment ceased on 13 June 2013. The parties are in dispute as to when the period of employment commenced or whether the period should be counted as service.

[27] It is not in dispute that the Respondent is not a small business employer and that therefore the relevant minimum employment period is 6 months.

[28] The Applicant has calculated, in his statement, that his period of service was 6 months and 7 days as at 13 June 2013. This calculation is mathematically incorrect. If it is accepted that the Applicant commenced employment on 2 January 2013, which the evidence supports, then the period between 2 January 2013 and 13 June 2013 is 5 months and 11 days.

[29] There appears to be confusion as to whether the Applicant’s employment with another company - Sunshine Coast Kurb and Channel - is counted as service with the Respondent. The Applicant asserts in passing that he was transferred from one to the other. There is no evidence of any transfer of business between the two entities such that the Applicant’s employment would be continuous between the two.

[30] The Applicant’s statement even seems to proceed on the basis that his entire period of employment with the other organisation does not count.

[31] On the basis of the submissions and evidence supplied by the parties the Commission must find that the Applicant is not an employee who has completed a period of employment with his employer of at least the minimum employment period of 6 months. He has, on the evidence service of 5 months and 11 days.

[32] Consequently the Applicant is not a person protected from unfair dismissal.

[33] Given the finding in relation to the minimum employment period it is not necessary to consider the alternate ground of genuine redundancy.

[34] The application filed pursuant to s394 of the Act must be dismissed.

[35] I order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code C, PR544351>