Mrs Jane Ann Parsons v AJSL Holdings Pty Ltd t/a Viva Italia Ipswich

[2014] FWC 4318

[2014] FWC 4318

FAIR WORK COMMISSION

DECISION

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

Mrs Jane Ann Parsons
v
AJSL Holdings Pty Ltd t/a Viva Italia Ipswich
(U2014/6658)

COMMISSIONER SIMPSON BRISBANE, 1 JULY 2014

Application for relief from unfair dismissal - Minimum employment period objection - Service with old employer to be counted - Objection dismissed.

[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Mrs Jane Ann Parsons (“the Applicant”) who alleges that the termination of her employment with AJSL Holdings Pty Ltd t/a Viva Italia Ipswich (“the Respondent”) was unfair in accordance with the definition contained within s 387 of the Act.

[2] The application was filed on the 22 April 2014, however the Respondent raised a jurisdictional objection on the basis that the Applicant had not served the minimum employment period and that the dismissal was in accordance with the Small Business Fair Dismissal Code. The matter was listed for a directions hearing on 30 June 2014.

[3] The Applicant says she commenced employment on 4 May 2011. In the Form 3 Employer Response to the application the Respondent said the Applicant commenced working for the Respondent on 3 December 2013. It appears not to be in dispute that the Applicant is a transferring employee in relation to a transfer of business from the old employer to the Respondent. The Respondent confirmed this at the directions hearing. The Respondent also confirmed that it and the old employer were not related entities.

[4] For the purpose of the minimum employment period objection the Respondent tendered at the directions hearing a copy of a letter dated 12 November 2013 from Mr Stanton on behalf of the Respondent to the Applicant. The letter headed “Letter of Offer - Head Chef” included the following:

“Probation

This offer of employment is conditional upon your satisfactory completion of a probationary period of 3 months. At the end of this period, your employment will be confirmed or ceased depending on your performance during the probation period...”

[5] The Applicant in the course of the directions hearing accepted she had received the letter before her commencement of employment with the Respondent on 3 December 2013, and also accepted that her old employer had paid her for accrued entitlements to holidays pay and annual leave and that these entitlements did not carry over to the Respondent.

[6] The question to be determined in this jurisdictional objection is whether the Applicant meets the minimum employment period as described in sections 383 and 384 of the Act.

[7] Sections 383 and 384 read 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.”

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; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”

[8] It is clear s.384(2)(b)(i) and (ii) are met. The real issue to be determined in whether the wording used in the letter of offer the Applicant set out above falls within the description of s.384(2)(b)(iii). The Respondent relies upon a decision in Ahmed v Serco Australia Pty Ltd 1 where it was found the words, “...all qualifying periods set out in the Fair Work Act 2009 and the Serco Immigration Detention Centres Agreement 2009 will apply.”, were construed to fall within the meaning of s.384(2)(b)(iii).

[9] The decision in Ahmed v Serco can however be distinguished from the particular facts in this matter. In Ahmed v Serco the letter of offer made a clear reference to the qualifying period in the legislation. The letter of offer in this case makes no reference to the qualifying period for an unfair dismissal remedy.

[10] Whilst I recognise that the Applicant was clearly advised they would be required to serve a period of probation as part of the offer of employment, that is not the same thing as being advised that the period of service with the old employer would not be recognised, and that the Applicant would have to serve, in this case, 12 months employment with the Respondent in order to be able to access the an unfair dismissal remedy.

[11] For the reasons set out above the Respondent’s jurisdictional objection going to the minimum employment period has not been made out. A notice of listing will be issued with this decision notifying of dates for the filing of material, and the determination of both the remaining jurisdictional issue regarding the Small Business Fair Dismissal Code, and if necessary the substantive matter.

COMMISSIONER

Appearances:

Mr Christopher Parsons on behalf of the Applicant,

Mr Anthony Stanton on behalf of the Respondent.

Hearing details:

Brisbane, 30 June 2014

 1   [2010] FWA 5121

Printed by authority of the Commonwealth Government Printer

<Price code A, PR552560>