Ms Fiona Marie Giles v River Murray and Mallee Aboriginal Corporation Commissioner Thornton Adelaide, 20 November 2024
[2024] FWC 3210
•20 November 2024
| [2024] FWC 3210 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for an unfair dismissal remedy
Ms Fiona Marie Giles
v
River Murray and Mallee Aboriginal Corporation
| COMMISSIONER THORNTON | ADELAIDE, 20 NOVEMBER 2024 |
(U2024/8661)
Application for an unfair dismissal remedy – jurisdictional objections – extension of time – whether minimum employment period met – no exceptional circumstances – extension of time refused – minimum employment period not met – application dismissed.
Ms Fiona Giles (the Applicant or Ms Giles) has brought a claim for unfair dismissal, pursuant to section 394 of the Fair Work Act 2009 (the Act). There are three jurisdictional issues that arise for Ms Giles in progressing with her application in the Fair Work Commission.
The first was that the Respondent in this matter, River Murray and Mallee Aboriginal Corporation (the Respondent or RMMAC) argued that it did not dismiss Ms Giles. I heard the parties on that objection and determined that Ms Giles’ employment had been terminated at the initiative of the Respondent on 11 June 2024.[1]
This decision addresses the second and third jurisdictional objections, that:
(a)the application was filed outside of the 21 day statutory time limit[2] (the second jurisdictional objection); and
(b)the Applicant did not meet the minimum employment period such that she was a person protected from unfair dismissal (the third jurisdictional objection).[3]
A further hearing was held on 6 November 2024 for evidence and submissions in respect of the second and third jurisdictional objections. Ms Giles represented herself and gave evidence on her own behalf. The Respondent was represented by Mr Tindley, a paid agent from Citation HR. Ms Pitt, a Payroll Officer for the South Australian Native Title Services, who previously performed payroll for the Respondent, gave evidence in respect of the third jurisdictional objection on behalf of the Respondent.
Ms Giles filed her unfair dismissal claim 22 days beyond the statutory time limit or 43 days after she was dismissed. It is now necessary to determine whether there are exceptional circumstances in this case[4] that persuade me to exercise discretion to extend the time for Ms Giles to file her application.
In respect of the third jurisdictional objection being the minimum employment period, I noted in the decision addressing the first jurisdictional objection:
“In the hearing of the first jurisdictional objection, it came to light that Ms Giles had been employed with the Respondent between February and September 2023 on a fixed term, 6 month, contract of 4 days per week (the first contract). After the conclusion of that contract, Ms Giles did not perform any work for the Respondent until she signed a new employment contract on 6 March 2024 (the second contract), for another 6 months, working 3 days a week. There was arguably a break in her service following the completion of the first fixed term contract before she commenced the second contract of employment. … This brings into question whether Ms Giles meets the further requirement that she complete a minimum employment period in order to be a person protected from unfair dismissal.”[5] (Footnote omitted).
Ms Giles’ employment contract made reference to an “extension” of the part-time contract following the conclusion of the first contract in September 2023 and a re-engagement under a second contract of employment in March 2024.[6]
I also noted that the Respondent had given conflicting evidence about whether the employer met the definition of a small business in section 23 of the Act. In the Form F3 Employer Response, the Respondent had noted it had 20 employees at the time of the Applicant’s dismissal, but in giving evidence, the General Manager, Mr Barker had said the number of employees at the time of dismissal was “likely less than 10”. [7]
It was necessary that I hear evidence about the number of employees employed by the Respondent at the time of the Applicant’s dismissal to know whether the employer was a small business employer and in turn, the length of the minimum employment that had to be served by the Applicant to be a person protected from unfair dismissal.[8] I also heard evidence about Ms Giles’ employment to then determine if she had served the requisite minimum employment period.
For the reasons set out in this decision I have determined:
(a)No exceptional circumstances exist in this matter such that time to file the application should be extended;
(b)The Applicant did not meet the minimum employment period to be a person protected from unfair dismissal. The Respondent is a small business employer, so Ms Giles was required to have completed a period of employment of a minimum period of 12 months. Ms Giles refused an offer of an extension to her contract in September 2023 which resulted in her employment with the Respondent coming to an end. She was engaged on a new contract of employment on 6 March 2024 and dismissed on 11 June 2024. Therefore, Ms Giles did not have continuous employment of 12 months duration; and
(c)The application should be dismissed.
Extension of time
Ms Giles was terminated on 11 June 2024. She filed her unfair dismissal claim on 24 July 2024. If it were filed on time, the application must have been filed on 2 July 2024. Ms Giles filed her application 22 days after the 21 day statutory time period.
Section 394(3) of the Act requires that when considering whether to grant an extension of time, the Commission must take into account the following:
(a)the reason for the delay; and
(b)whether the person first became aware of the dismissal after it had taken effect; and
(c)any action taken by the person to dispute the dismissal; and
(d)prejudice to the employer (including prejudice caused by the delay); and
(e)the merits of the application; and
(f)fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether exceptional circumstances exist in the context of this matter.
It is well established that the matters relied on to establish exceptional circumstances must be:
“out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional.”[9]
Reason for the delay
Ms Giles explained the reasons for the delay in filing her application as follows:
(a)She was stressed about the termination of her employment;
(b)She was waiting for her accrued entitlements to be paid and for a separation certificate to be provided and understood those steps had to be approved by the Board of Directors of the Respondent (the Board);
(c)She was waiting for “an answer from someone”[10] about her termination after a meeting of the Board;
(d)She was waiting for a face-to-face appointment to receive legal advice from a community legal centre about whether she had been unfairly dismissed; and
(e)She was very unwell, attending Berri Hospital and then later being flown to Adelaide for urgent medical treatment in respect of a serious liver condition.
It is necessary for me to reach a view as to whether the reasons advanced by the Applicant constitute a reasonable explanation for the delay and then weigh that consideration along with the other factors outlined in section 394(3) to determine if the factors, either on their own or considered together, constitute exceptional circumstances.
Ms Giles’ evidence was that she was “stressed out”[11] by the dismissal. Beyond that evidence given, Ms Giles did not assert that as a result of the dismissal she had developed or exacerbated any psychiatric condition such that she was incapable of considering her options, seeking advice or filing her claim.
Stress is a natural reaction to a dismissal and is likely to be experienced by most employees whose employment is terminated and who seek a remedy for the dismissal in the Commission. The Full Bench noted in the matter of Shaw v Australia and New Zealand Banking Group Ltd[12]: “stress, shock and confusion, in and of themselves, are not exceptional. The loss of employment is a serious event in a person’s life, and such effects are unfortunately not unusual.” .[13]
For stress to be a credible reason for the delay there must be some evidence that the stress caused a level of incapacity that prevented the employee from taking steps to file their claim. There was no evidence of that nature given by Ms Giles or provided by way of supporting medical evidence addressing the period following the termination.
Ms Giles gave evidence that she was waiting for confirmation of her termination from the Board before she took any steps to address her dismissal. She offered little in the way of a reason for this approach as she maintained she had been dismissed on 11 June 2024. Ms Giles said that she knew the Board of Directors met every month, but she was not sure when in the month after her dismissal they were meeting. Ms Giles was expecting that the Board would confirm her dismissal, provide a termination letter, payment of entitlements and a separation certificate but these were not forthcoming. There is no evidence that Ms Giles was paid any amount in lieu of notice or any accrued entitlements following her dismissal.
Waiting for contact from her employer before taking any steps to address her dismissal, in circumstances where Ms Giles had confirmed by text message to Mr Barker on 17 June 2024: “The text message from you last Tuesday [11 June 2024] confirms I am already out of a job”[14] is not a credible explanation for the delay.
It was evident from the evidence that Ms Giles waited until 1 July 2024 to seek legal advice. There is no evidence that she took other steps to understand her options or take action to dispute the dismissal prior to that date. Ms Giles gave evidence that she called her local Community Legal Centre on 1 July 2024 but could not get an appointment until 24 July 2024.
1 July 2024 was the day before her application was due to be filed if it were filed within the statutory time period. Ms Giles’ evidence was that she waited until the date of the appointment to get legal advice and when she was advised she needed to have filed the application within 21 days to meet the statutory deadline, she acted immediately to file her application.[15]
However, Ms Giles placed into evidence an email[16] from the Limestone Coast Community Justice Centre as evidence of her contact with them after her dismissal. That email set out that:
(a)Ms Giles had contacted the Centre on 1 July 2024 seeking legal advice about a potential claim for unfair dismissal;
(b)Ms Giles spoke to a member of the Centre’s intake staff;
(c)Ms Giles declined the offer to have a telephone appointment before 24 July 2024;
(d)After being informed that the next face-to-face appointment was on 24 July 2024, Ms Giles preferred to proceed with that appointment and not the telephone appointment offered;
(e)She had been informed about the statutory time limit of 21 days during the initial intake call; and
(f)Ms Giles was referred to the Legal Services Commission free advice line “noting the time limit for such claims.”[17]
Ms Giles said in her evidence that she did not want to have a telephone appointment because she “did not feel like talking to anyone.”[18] Ms Giles reported feeling physically unwell by the time she spoke to the Limestone Coast Community Justice Centre. She said that on 1 July 2024 when she spoke to the Centre she “couldn’t drink, couldn’t eat”. [19]
Ms Giles gave evidence that she then presented to the Berri Hospital with severe health symptoms including pain under her ribs initially on 2 July 2024. Further correspondence received from Ms Giles after the hearing confirmed that she presented to Berri Hospital on 3 July 2024.[20] Ms Giles said in her evidence that her condition was so poor that she was flown to Flinders Medical Centre on 4 July 2024.
A ‘Discharge Summary’ from Flinders Medical Centre was admitted into evidence. The summary confirmed that Ms Giles was admitted to Flinders Medical Centre on 4 July 2024 with a liver abscess and other related issues. Ms Giles was discharged on 16 July 2024 and returned to Berri by bus on that day.
In closing submissions, the Respondent conceded that the Applicant was unable to file her claim whilst she was in hospital with her liver condition.[21] I concur with the view that the Applicant was precluded from filing her application between the date she presented to hospital[22] and 16 July 2024. The Applicant has a valid reason for the delay for part of the relevant period. Now that it has been confirmed by Ms Giles that she was admitted to hospital on 3 July 2024, it is evident that the statutory time period for filing her dismissal concluded the day prior to her admission.
Despite the credible explanation for part of the delay, the Respondent, in its closing submissions, argued that “even if the Applicant was not incapacitated she would not have made her application in that period. She was not intending to make her application until she had the face-to-face appointment on the 24th of July.” .[23]
It seems apparent from the chronology of events that the real reason for the delay in filing the application was Ms Giles’ delay in obtaining legal advice. I accept the Respondent’s submission that even if Ms Giles were not ill, she would not have acted to file her application in the period during which she was otherwise hospitalised.
As the Commission relevantly noted in the matter of Mitchell v Mungabereena Aboriginal Corporation[24]: “Whether a person decides to avail themselves of legal advice or representation (free or otherwise) is a matter for them. It is not a matter that ordinarily justifies a delay in the filing of an application” .[25] The Commissioner determining that matter went on to say:
“There is nothing in the Act that provides for an exception to the 21-day time period on the basis that an employee is unable (for whatever reason) to obtain legal advice or representation. Whilst a failure or inability to obtain legal advice or representation is not irrelevant, as all of the circumstances of a case ought to be considered, it is not a matter that can be said to be unusual, special, uncommon or out of the ordinary when it comes to assessing an applicant’s reason/s for delay. This is so even in a regional area, where there is access to telephone and internet, and thus access to legal services (paid and unpaid) beyond the regional area in question.”[26]
Ms Giles was offered a telephone legal advice appointment before falling so ill she attended a hospital. She declined a telephone appointment in favour of waiting for a face-to-face appointment. She did so, knowing of the 21-day statutory time limit that applied to the filing of her claim. When she received the legal advice in the face-to-face appointment, Ms Giles acted promptly on that advice. She was referred by the Limestone Coast Community Justice Centre to the Working Women’s Centre who assisted Ms Giles to file her application. Ms Giles’ period of illness requiring hospitalisation fell between the date of the telephone enquiry with Limestone Coast Community Justice Centre and the face-to-face appointment.
Awaiting a face-to-face appointment with a lawyer, especially in circumstances where a telephone consultation was offered earlier and where a referral was made elsewhere considering the time limit, is not a sufficient explanation for the delay. This is especially the case when Ms Giles was aware of the 21-day statutory time period in which to file her claim.
For the reasons set out above, I find that the Applicant has not provided a credible explanation for the period of her delay in filing her unfair dismissal application. The lack of a satisfactory reason for the delay weighs against a finding that exceptional circumstances exist in this case.
When the Applicant first became aware of the dismissal
The Applicant has consistently asserted that her employment was terminated by text message from Mr Barker on 11 June 2024. The decision regarding the initial jurisdictional objection found that a dismissal did occur on 11 June 2024 and the Applicant was aware of the decision to terminate her employment on that day.
There was some confusion for the Applicant about whether she was to receive termination entitlements or a separation certificate, however, she has maintained that she was terminated by Mr Barker by text message on 11 June 2024. Ms Giles had the full balance of the 21 days to file her unfair dismissal claim.
This consideration does not weigh in favour of a finding that exceptional circumstances exist in this case.
Any action taken by the applicant to dispute the dismissal
The Applicant did not dispute her dismissal, but rather waited for a period of time to receive her termination entitlements and separation certificate. Her evidence was that she was “waiting for an answer from someone”[27] after a monthly meeting of the Board of Directors. However, Ms Giles did not know when that meeting was scheduled to occur and did not make contact with any Directors, some of whom she knew, to dispute her dismissal. Ms Giles contacted another member of the Board, Ms Agius, by text message in order to query her interpretation of the text message sent by Mr Barker on 11 June 2024, rather than dispute the dismissal.
However, as detailed in the decision regarding the first jurisdictional objection, Ms Giles did engage in text message communication with Mr Barker that made it clear she disagreed with the decision to terminate her employment. Balanced against these communications was Ms Giles’ reluctance and avoidance of attending a meeting to discuss her employment with Mr Barker.
This factor is therefore neutral in my consideration as to whether exceptional circumstances exist.
Prejudice to the employer, including prejudice caused by the delay
The Respondent did not assert they would be prejudiced by the delay.[28]
I have considered this factor but am not persuaded that prejudice to the Respondent is a matter to which I should attribute any weight in these circumstances.
Merits of the application
The merits of the application are relevant, however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[29] Further, the primary consideration is whether the Applicant has an arguable case.[30]
On the face of the evidence available to date, the dismissal likely lacked procedural fairness. The Applicant was dismissed by text message of the General Manager without being provided with an opportunity to directly address the concerns he held about her conduct.
However, as noted in the first decision on jurisdiction, the conduct of the Applicant leading to the date of termination may have constituted misconduct and included Ms Giles:
“(a) not presenting for the Working Group meeting when she was aware that the Respondent required her attendance;
(b)not seeking permission to travel interstate for an event she was yet to clarify was part of her role;
(c)not requesting leave in advance of taking leave;
(d)being informed that her leave had been refused but taking the leave anyway;
(e)informing the Respondent that she was not returning to work when initially indicated and would be taking leave without pay without seeking permission; and
(f)not responding to the Respondent’s efforts to contact her.”[31]
It would be necessary to hear and consider all of the evidence to reach a view about the merits in this matter. A preliminary consideration of those merits show some merit to the cases of both the Applicant and Respondent.
Therefore, the merits of the matter are a neutral consideration in reaching my decision with respect to the existence of exceptional circumstances.
Fairness as between the person and other persons in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[32] considered this criterion and said:
“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”[33]
Fairness as between the person and another person in a similar position may involve a comparison of cases involving similar facts.[34]
As outlined earlier in this decision, the primary reason relied upon by Ms Giles for the delay in filing her application was her delay in obtaining legal advice. Ms Giles sought legal advice on 1 July 2024, the day before the claim was due to be filed and agreed she had been informed about the statutory time limit of 21 days.
Her presentation and later admission to hospital falls within the period of delay but did not commence until the day after her application was due to be filed. Further, upon release from hospital on 16 July 2024, Ms Giles did not file her claim. She waited until she consulted with a lawyer at an in-person appointment at the Limestone Coast Community Justice Centre and later the Working Women’s Centre on 24 July 2024.
To grant Ms Giles an extension of time when she delayed in seeking legal advice and refused an offer of a more prompt telephone legal advice appointment when she was advised of the statutory time limit, would be unfair to other applicants who seek prompt legal advice and act on that advice by filing their applications on time. It would also likely be unfair to other applicants who have not been able to proceed with their application because they filed them outside of the statutory time limit for similar reasons.
The consideration of fairness between the Applicant and other applicants in a similar position weighs against a finding that there are exceptional circumstances in this case.
Conclusion
The reason for delay, when the Applicant first became aware of the dismissal and fairness between the Applicant and other applicants in a similar position all weigh against a finding that exceptional circumstances exist in this case. The other factors are neutral and have no bearing on my findings.
Therefore, on balance, I find that no exceptional circumstances exist in this case which would lead me to consider exercising discretion to extend the time for Ms Giles to file her application.
Minimum Employment Period
Section 382 of the Act prescribes:
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.
Section 383 of the Act prescribes:
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.
Section 23 of the Act defines a small business employer as: “at a particular time … the employer employs fewer than 15 employees at that time.”
Until the end of June 2024 South Australian Native Title Service (“SANTS”) was contracted to provide payroll services for the Respondent. Ms Pitt was, and remains, the Payroll Officer for SANTS. Ms Pitt gave evidence that after 30 June 2024 the payroll function she performed was insourced by the Respondent.
Ms Pitt gave evidence that as at 4 June 2024, the Respondent employed 7 employees. She submitted a spreadsheet containing the names of the Respondent’s employees as that date. Ms Pitt confirmed that 4 June 2024 was the last payroll performed before the Applicant’s dismissal on 11 June 2024,[35] and she was not able to confirm the exact number of employees on 11 June 2024.
The Commission was advised by Mr Tindley that the Respondent’s General Manager, Mr Barker was “incapacitated and uncontactable”[36] and as such, the Respondent could not provide records of the number of employees at 11 June 2024. Common sense suggests that it is extremely unlikely that the Respondent would have employed a further 8 employees between 4 and 11 June 2024, such that the Respondent ceased to be a small business employer.
On questioning, Ms Giles confirmed her recollection that the 7 employees listed on Ms Pitt’s spreadsheet were the only employee’s to her knowledge that were engaged at the time of her dismissal. I find that the Respondent was a small business employer at the time of the Applicant’s dismissal.
In order for Ms Giles to be a person protected from unfair dismissal she must have served a minimum employment period of 12 months.
Section 384(1) of the Act says:
(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.
The term ‘continuous service’ in section 384(1) is defined in section 22 of the Act which provides:
“(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).
(2) The following periods do not count as service:
(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised absence, other than:
(i)a period of absence under Division 8 of Part 2 - 2 (which deals with community service leave); or
(ii)a period of stand down under Part 3 - 5, under an enterprise agreement that applies to the employee, or under the employee's contract of employment; or
(iii)a period of leave or absence of a kind prescribed by the regulations;
(c) any other period of a kind prescribed by the regulations.”
(3) An excluded period does not break a national system employee's continuous service with his or her national system employer but does not count towards the length of the employee's continuous service.
In this hearing, Ms Giles gave evidence that her employment with the Respondent dated back to a period of time that she had not set out in the previous jurisdictional hearing. Ms Giles’ evidence, supported by relevant documents, was that she was first engaged by the Respondent in the role of Ranger Co-ordinator on 15 March 2022. On 6 February 2023, Ms Giles moved into the role of First Peoples Project Officer on the basis of a 6-month, fixed term contract.
However, evidence of wages payments made to Ms Giles, supplied by Ms Pitt, show that the Respondent was making payments of wages to Ms Giles until at least 24 October 2024. Ms Giles also submitted a sick and annual leave application form for the period of 14 September to 23 October 2023. This evidence contradicted evidence given by Ms Giles in the hearing of the first jurisdictional objection that she performed no work for the Respondent after her contract expired in September 2023.
Ms Giles submitted into evidence in this matter a letter from Mr Barker of RMMAC dated 14 November 2023, offering Ms Giles an extension of her contract as First Peoples Project Officer from 14 November 2024 to 31 December 2023. The Respondent initially accepted that it likely had no evidence to contradict that Ms Giles was employed by RMMAC until 31 December 2023, or was unable to find any such evidence with Mr Barker being absent from work.
However, Ms Giles admitted in her evidence that she had refused the contract extension from the Respondent. Ms Giles said in her evidence that she “remembers looking at this contract and I was disgusted…cause it was only for 6 weeks.” When asked if she accepted the contract extension Ms Giles said: “I definitely didn’t accept it”.[37] Following the admissions of Ms Giles, the Respondent no longer held the view they employed Ms Giles until the end of 2023.
Ms Giles also provided extensive evidence about her personal circumstances in late 2023. The evidence submitted supported her assertion that in the latter months of 2023 Ms Giles assumed care for her three grandchildren, had to withdraw funds from her superannuation, was admitted to hospital for a ‘surgical condition’ between 25 September and 6 October 2023, and was at risk of homelessness when her private rental lease ended, even contemplating camping on the riverbank with her grandchildren. This evidence was provided by Ms Giles to explain why she couldn’t work for the Respondent after her contract concluded in September 2023.
Ms Giles’ first period of employment with the Respondent was for a period from 15 March 2022 to approximately 24 October 2023. The evidence made it clear that Ms Giles’ employment ended when she refused to accept a contract extension. Before she was re-employed by RMMAC in March 2024, Ms Giles had refused an offer of work for legitimate reasons, but she did not perform work in that period.
When Ms Giles signed another contract in March 2024, that contract was for three days instead of the four she previously worked. The letter of offer signed by Ms Giles on 6 March 2024 refers to an “Extension of contract – First Peoples Project Officer” and says “(RMMAC) is pleased to offer you an extension to your current part-time contract”. The letter of offer also says: “All other terms and conditions in your original employment contract dated 8th February 2023 will continue to apply.”
The Respondent was unable to provide evidence about the above offer of employment or the reasons it was framed in the manner it was. However, Mr Tindley, on behalf of the Respondent, submitted that the words used in the contract were likely to have been for convenience of carrying over the terms of the previous employment and were not intended to convey an extension of the contract to cover the period of time since the previous employment ended or otherwise reflect continuous employment. This argument may be correct but there is no evidence from the Respondent in that regard.
What is undisputed is that Ms Giles refused an offer of an extension to her contract of employment in November 2023 and after having a period of leave that concluded on or about 22 October 2023, she did not perform work or receive wages until she signed another contract in March 2024. I find that Ms Giles’ employment ceased approximately, and no later than, 24 October 2024. Ms Giles commenced a new contact of employment on 6 March 2024.
Ms Giles raised, but did not expand upon an argument that she was on a period of authorised absence in the period from 24 October 2023 to 6 March 2024. Sections 22(2) and 22(3) of the Act prescribe that a period of unpaid authorised absence does not count towards an employee’s length of continuous service but does not break continuous service. There is no evidence that the period between October 2023 and March 2024 was an authorised absence.
I find that Ms Giles did not have continuous service from 15 March 2022 to 11 June 2024 when her employment was terminated.
Ms Giles’ second period of continuous service commenced on 6 March 2024 and concluded on 11 June 2024 when her employment was terminated at the initiative of the Respondent. This period of slightly more than three months of continuous service fell short of the minimum employment period of 12 months that Ms Giles was required to complete to be a person protected from unfair dismissal.
Ms Giles has not met the minimum employment period necessary for her application to be within jurisdiction.
Conclusion
The Applicant in this case does not meet the jurisdictional requirements to make an application for unfair dismissal. As there are no exceptional circumstances present in this case at the relevant time to warrant an extension of time being granted and she has not met the minimum employment period, I order that Ms Giles’ application be dismissed.
COMMISSIONER
Appearances:
F Giles, the Applicant on her own behalf.
N Tindley of HR Citation with permission, with S Giles on behalf of the Respondent.
Hearing details:
Adelaide (by Video via Microsoft Teams)
2024
6 November.
[1] [2024] FWC 2673 (‘First Jurisdictional Decision’).
[2] Section 394(2)(a) of the Act.
[3] Section 382 and 383 of the Act.
[4] See section 394 of the Act.
[5] First Jurisdictional Decision at [54] and [56].
[6] First Jurisdictional Decision at [55].
[7] Audio recording of hearing of first jurisdictional objection at 2:54:03.
[8] See section 383 of the Act that prescribes that the minimum employment period is 12 months for a small business employer or 6 months if the Respondent is not a small business employer.
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[10] Audio recording of hearing – part 2 at 54:40.
[11] Audio recording of hearing – part 2 at 51:16.
[12] Shaw v Australia and New Zealand Banking Group Ltd (t/as ANZ Bank)(2015) 246 IR 362, [2015] FWCFB 287.
[13] Ibid at [15].
[14] Statement of Mr Barker, filed in first jurisdictional objection dated 14 August 2024.
[15] Statement of Ms Giles at [9].
[16] Email of Ms K Davies, Solicitor, Limestone Coast Community Justice Centre, 5 November 2024.
[17] Ibid.
[18] Audio recording of hearing Part 2 at 59:12 – 59:15.
[19] Audio recording of hearing Part 2 at 59:33 – 59:35.
[20] Email from Applicant to Commission 6 November 2024. The Respondent was invited at the hearing to make a further submission about any evidence regarding the date of admission to Berri Hospital when provided and no further submission was received.
[21] Audio recording of hearing – Part 3 at 22:43.
[22] The date was later confirmed to be 3 July 2024.
[23] Audio recording of hearing – Part 3 at 31:32 – 31:49.
[24] [2023] FWC 2033.
[25] Ibid at [31].
[26] Ibid at [32].
[27] Audio recording of hearing – part 2 at 54:40.
[28] Respondent’s Outline of Submissions on Extension of Time at paragraph 22.
[29] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at paragraph 14.
[30] Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services[2022] FWCFB 40 at [32] to [34].
[31] Giles v River Murray and Mallee Aboriginal Corporation[2024] FWC 2673 at [44].
[32] [2016] FWCFB 6963.
[33] Ibid at paragraph [41]. See also Higgins v FQM Australia Nickel Pty Ltd [2023] 750.
[34] Croker v Erndit Logistics Pty Ltd[2023] FWCFB 224 at [49].
[35] Audio recording of hearing – part 2 at 5:50.
[36] Respondent’s Outline of Submission on Minimum Employment Period at paragraph 6.
[37] Audio recording of hearing – part 2 at 35:10-36:40.
Printed by authority of the Commonwealth Government Printer
<PR781467>
0
6
0