Ms Diana Menabue v v Bus Pty Ltd T/A Laughter Unlimited Tours, Bus Buddies, v Bus Coaches

[2014] FWC 4354

[2014] FWC 4354

FAIR WORK COMMISSION

DECISION

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

Ms Diana Menabue
v
V Bus Pty Ltd T/A Laughter Unlimited Tours, Bus Buddies, V Bus Coaches
(U2013/16806)

DEPUTY PRESIDENT SMITH MELBOURNE, 8 JULY 2014

Application for relief from unfair dismissal.

Background

[1] On 27 December 2013 Ms Diana Menabue made an application to the Fair Work Commission (the Commission) seeking an unfair dismissal remedy on the basis the termination of her employment by V Bus Pty Ltd T/A Laughter Unlimited Tours, Bus Buddies, V Bus Coaches (Laughter Unlimited) was harsh, unjust or unreasonable.

[2] Ms Menabue argued that:

● She was employed by Laughter Unlimited as an Administration Assistant on or about 10 July 2012;

● Laughter Unlimited was sold to V Bus Pty Ltd on or about 1 November 2013;

● Her employment was transferred to the new employer at this time;

● Her employment was terminated on 5 December 2013;

● She sought assistance from a family friend who was familiar with industrial relations matters and he advised that he would lodge the application; and,

● The application was lodged on 27 December 2013.

[3] Laughter Unlimited objected to Ms Menabue’s application and argued her application was lodged outside of the 21 day time period provided for in the Fair Work Act 2009 (the Act). Laughter Unlimited also argued that:

● Ms Menabue had not worked the minimum period of employment given that Laughter Unlimited was a small business; and,

● There was no employment contract between Ms Menabue and Laughter Unlimited (the last objection was not dealt with at the hearing by Laughter Unlimited probably because there is very little to commend it as an argument).

[4] In relation to Laughter Unlimited’s argument that the application was out of time, Ms Menabue submitted that she was entitled to receive two weeks’ notice and this would have made any application within time and, alternatively, that if that was not accepted there was only one day in which the application was out of time.

Was the application was out of time?

[5] Section 396 of the Act requires the Commission to consider certain matters before turning to the merits. This section provides, inter alia:

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) ...

[6] Firstly, I deal with the argument that if the applicant had been given notice, the application would have been within time. This argument is misconceived. Whether or not notice was required has not altered the date upon which the employment came to an end. The payment or otherwise in lieu of notice does not extend the contract of employment, however, it may give rise to a breach of contract. 1

[7] Secondly, it is common ground that Ms Menabue was dismissed on 5 December 2013. The Commission’s file indicates that the application was made on 27 December 2014. Both parties agreed that the application was lodged out of time; however, whether or not this is the case is a matter for the Commission to determine.

[8] Section 394(2) of the Act provides:

The application must be made:

(a) within 21 days after the dismissal took effect...

[9] Consideration of time periods under the Act is subject to the operation of s 36(1) of the Acts Interpretation Act 1901 (the AI Act), which outlines how a period of time is to be calculated when referred to in an Act of the Australian Parliament:

(1) A period of time referred to in an Act that is of a kind mentioned in column 1 of an item in the following table is to be calculated according to the rule mentioned in column 2 of that item:

Calculating periods of time

Item Column 1 Column 2

If the period of time: then the period of time:

...

6 is expressed to begin after a specified day does not include that day.

...

Example 6: If a decision is made on 2 August and a person has 28 days after the day the decision is made to seek a review of the decision, the 28-day period begins on 3 August.

[10] The 21 day period for the purposes of s 394(2)(a) of the Act does not begin until the day after the dismissal takes effect, as provided for in Item 6 and demonstrated in Example 6. In this case, the dismissal took effect on 5 December 2013, hence, the 21 day period expired on 26 December 2014, which was Boxing Day — a public holiday. 2

[11] Sections 36(2) and (3) of the AI Act provide:

(2) If:

(a) an Act requires or allows a thing to be done; and

(b) the last day for doing the thing is a Saturday, a Sunday or a holiday; then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday.

Example: If a person has until 31 March to make an application and 31 March is a Saturday, the application may be made on Monday 2 April.

(3) In this section: holiday, in relation to the time for doing a thing, means:

(a) a day that is a public holiday in the place in which the thing is to be or may be done; and

(b) if the thing is to be or may be done at a particular office or other place—a day on which the place or office is closed for the whole day.

[12] By operation of s 36(2) of the AI Act, the last day Ms Menabue’s application to the Commission could have been made within time was on 27 December 2013.

[13] The application was made on 27 December 2013.

[14] Ms Menabue’s application was made within the 21 days after the dismissal took effect, by virtue of the operation of s 36(2) of the AI Act in relation to s 394(2)(a) of the Act. Laughter Unlimited’s objection in relation to Ms Menabue’s application being lodged out of time must be dismissed.

Had the minimum period of employment been completed?

[15] It was argued by Laughter Unlimited that Ms Menabue was employed on 1 November 2013 and as Laughter Unlimited was a small business employer she had did not have the requisite 12 months service. Section 383 of the Act provides for the meaning of minimum employment period as follows:

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.

[16] There was no evidence led regarding the size of the employer’s business, but in any event, Ms Menabue submitted that if the employer were a small business she was employed for a period greater than one year. Ms Menabue argued that she was employed from about 10 July 2012 with Laughter Unlimited. Her evidence was that on or about 1 November 2013 Laughter Unlimited was sold to another company — V Bus Pty Ltd. Before 1 November 2013 the previous owner advised that she would be required to work for the new owners.

[17] It is apparent that no termination payments were made to Ms Menabue at the time of the sale of the business and she continued to work and be paid by the new owners of the business until the termination of her employment on 5 December 2013.

[18] Laughter Unlimited put forward the sale of business contract, which places certain obligations on the previous owner and provides rights for the current owner. Whilst that contract may otherwise support evidence of the impact on the contract of employment of Ms Menabue, it is not conclusive of the employment relationship. This is so for obvious reasons: the contract of sale is between the seller and the purchaser of the business and is not direct evidence of the employment relationship between Ms Menabue and Laughter Unlimited.

[19] The direct evidence from Ms Menabue of the existence of an ongoing employment contract with Laughter Unlimited includes her payslips, superannuation statement and Income Tax Assessment documentation. I find this and her evidence persuasive. Therefore I find that her employment with Laughter Unlimited has been for a period in excess of one year. I make this finding on the assumption that Laughter Unlimited is a small business.

[20] Laughter Unlimited’s objection in relation to Ms Menabue’s period of employment being less than one year must be dismissed.

Decision

[21] I dismiss all the jurisdictional objections and refer the matter for arbitration.

DEPUTY PRESIDENT

Appearances:

Mr D. North for the Applicant.

Mr V. Ryan for the Respondent.

Hearing details:

2014.

Melbourne:

24 April.

 1   See Siangian v Sanel Pty Limited (1994) 54 IR 185, 205.

 2 Section 6(l), Public Holidays Act 1993 (Vic).

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