Ms Emily Thompson v Platinum Employment Group Pty Ltd T/A Platinum International

[2015] FWC 1017

[2015] FWC 1017

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Ms Emily Thompson
v
Platinum Employment Group Pty Ltd T/A Platinum International
(C2014/7884)

COMMISSIONER SPENCER BRISBANE, 26 MARCH 2015

Application to deal with contraventions involving dismissal - alleged application filed out of time

[1] On 20 November 2014, Ms Emily Thompson (the Applicant) made an application to the Fair Work Commission (the Commission) to deal with a General Protections dispute wherein the Applicant alleged she had been dismissed in contravention of Part 3-1 General Protections of the Fair Work Act 2009 (the Act). This decision deals with the jurisdictional issue of the timing of the filing of the application and not the merits of the matter.

[2] The Applicant alleged that she had been dismissed by Platinum Employment Group Pty Ltd T/A Platinum International (the Employer/Respondent).

[3] The application was lodged 1 day after the termination date as indicated in the application (29 October 2014). The Respondent objected to the application on the basis that it was lodged out of time.

[4] The application is required, as per s.366(1)(a), of the Act to be lodged within 21 days after the dismissal took effect.

[5] Directions were set for the provision of material in relation to the jurisdictional objection and a conference was held in the matter by telephone, given the location of the parties. It was agreed by the parties that the matter of the extension of time may be determined on the papers and additional Directions were set for the Applicant to provide further submissions and for the Respondent to reply.

[6] A further conference by telephone was held in the matter on 10 February 2015. Directions were issued on 10 February 2015 for the parties to file further material.

[7] The date of the communication of the change in status from full-time employment to casual employment, and the date this change took effect were confirmed by the Respondent. On these particular issues, the facts are not in dispute between the parties 1.

[8] Not all of the evidence and submissions provided are referred to in this decision; however, all have been considered in making the determination.

Relevant legislation

“365 Application for the FWC to deal with a dismissal dispute

If:

(a) a person has been dismissed; and

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”

“366 Time for application

(1) An application under section 365 must be made:

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

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

Summary of submissions

[9] In her application, the Applicant stated the date of dismissal as being 29 October 2014.

[10] The Applicant stated in her application that it was communicated to her on 28 October 2014 that her employment as a full-time employee was terminated and that she would be given shifts as a casual, however, she said no specific information about the hours per week to be provided was communicated.

[11] The Applicant submitted that she continued as a full-time employee for two weeks on the existing roster and that her last day as a full-time employee was 11 November 2014.  The Applicant stated that she was paid as a full-time employee until 11 November 2014 and her last payslip included an amount for accrued annual leave of one day.

[12] The Applicant stated that she was then given the roster for the following period and commenced work as a casual employee, and worked on the casual roster for 3 days; Wednesday 12 November 2014, Friday 14 November 2014 and Saturday 15 November 2014. 

[13] The Applicant resigned from her casual employment on Sunday 16 November 2014, citing her drop in earning and therefore had had to find another full-time job.

[14] The Applicant submitted that the Respondent terminated her existing contract of employment by dismissing her from her full-time permanent position. The Applicant submitted that she was given notice of dismissal from her permanent full time position on 28 October 2015 and that she was being offered occasional casual employment. 

[15] The Applicant stated that the casual employment being offered was between 1 and 5 shifts a week but with no certainty of the number of shifts and hours she would be given in any given week.  The Applicant submitted that the dismissal from the full-time permanent position represented a significant reduction in her pay and hours of work, and provided payslips as evidence of such.  The Applicant stated that she had living expenses and debts to maintain and could not do so on the basis of occasional casual employment.  

[16] The Applicant submitted that she was given notice on 28 October 2014 and the dismissal took effect on the last day she was employed, as a full-time employee, that is, 11 November 2014.

[17] The Applicant submitted that she lodged her application on 20 November 2014 and that this was within “21 days after the dismissal took effect” on 11 November 2014, and therefore, her application was lodged within the required time frame.

[18] Pursuant to s366(1)(a) of the Act, the relevant consideration for making a determination is the date the dismissal took effect.

[19] Submissions were sought from the Respondent as to the date the Applicant’s employment status changed from full-time permanent to casual. The Respondent’s representative submitted that the Respondent had instructed that notice was given of the change of employment status on 28 October 2014, the Applicant’s last day as a full-time employee was 11 November 2014, and that the Applicant started as a casual employee on 12 November 2014 and resigned on 16 November 2014.

Consideration

[20] There is no requirement to make a determination regarding ‘exceptional circumstances’ as, on the available facts, it is clear that the date the Applicant’s dismissal took effect was 11 November 2014, and the application was filed within 21 days after this date.

[21] It is clear on the material that the Applicants full-time employment was terminated. A demotion may constitute a dismissal, regardless of the employee’s election to continue employment out of necessity as addressed in the matter of Irvin v Group 4 Securitas Pty Ltd 2:

[14] In my view, there is no doubt that the alteration to the applicant's employment status from that of a permanent employee to a casual employee is a reduction to a lower class or rank.

[15] The loss of the applicant's permanent employment status has involved a significant reduction in his entitlements with a corresponding reduction in his remuneration. He has no right to any minimum number of hours of work nor to any regularity in those hours, which restricts his ability to be available to work the hours that may be offered He has lost annual leave and sick leave entitlements. In my view the change in employment status amounts to a demotion, involving a significant loss in remuneration. It is a demotion of the type that is a termination of his employment by virtue of the definition in new subsection 170CD(1B) of the Act.

[16] Since the Act was amended as described a Full Bench the Commission has had occasion to consider the effect on the new provision of a term of a Certified Agreement permitting demotion (Gorczyca v RMIT University [PR922414]). In this case, however, there is no certified agreement containing such a clause. The applicable award does not contain any provision allowing an employer to unilaterally alter the employment status of an employee. The letter of offer of employment does contain a provision, apparently agreed to by the employee, providing for the employer to change the employee's employment status. If this provision has any effect at all, given the lack of any award clause to the same effect, in my view it permits only a change from the applicant's initial status as a casual employee.

[17] Although the employee readily accepted the change from casual employment to permanent part-time employment in July 2002 he has, at all times, disputed the conversion of his permanent status to that of casual employment.

[18] In light of the above authorities and the facts of this matter I determine that the Commission has jurisdiction to deal with the application as the applicant's "employment has been terminated by the employer" for the purposes of s170CE(1) of the Act.

[22] It is evident that the employee suffered a demotion, and therefore a dismissal, when her employment status was changed unilaterally from full-time to casual employment. I accept the dismissal took effect from 11 November 2014 (as per s.366(1)(a)). The Respondent agreed that the last day of full-time employment was 11 November 2014. Therefore, the application filed on 20 November 2014 was filed within the 21 day time period.

Conclusion

[23]  Taking into account all of the circumstances of this matter, pursuant to s.366(1)(a), the application is deemed to be filed within time. I Order accordingly.

[24] The matter has already been subject to two conferences before the Commission, and has not been able to be resolved.

[25] Accordingly, as conciliation has been exhausted, a certificate pursuant to s.368 will issue.

COMMISSIONER

 1   Gutzeit v Liquorland (Qld) Pty Ltd T/A Spirit Hotels Liquorland (South East Queensland)[2015] FWCFB 1257

 2   (unreported, AIRC, Deegan C, 18 December 2002) PR925901

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