Ms Michelle Buxton v CCH Services Pty Ltd T/A Ramada Couran Cove Island Resort

[2013] FWC 9268

[2013] FWC 9268

FAIR WORK COMMISSION

DECISION

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

Ms Michelle Buxton
v
CCH Services Pty Ltd T/A Ramada Couran Cove Island Resort
(U2013/13247)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 2 DECEMBER 2013

Summary: jurisdictional objection - minimum period of employment.

[1] On 5 September 2013, Ms Michelle Buxton (“the Applicant”) made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2013 (“the Act”), in relation to her dismissal from her employment by CCH Services Pty Ltd T/A Ramada Couran Cove Island Resort (“the Respondent”).

[2] On the face of the materials filed the Applicant appears to have been dismissed for reason that the Respondent came to believe that she did not possess the required degree of experience or skill for the position that she was recruited to fulfil (in marketing).

[3] The Applicant indicated on her completed application form (Form F2) that she had been employed by the Respondent on 5 June 2013.

[4] The Applicant indicated on the same form that her dismissal had taken effect on 26 August 2013.

[5] The Respondent’s completed “Employer’s Response” (by way of Form F3) reflected the Applicant’s claims as to the date the Applicant was employed and the date her dismissal took effect.

[6] On 6 September 2013 the Applicant received correspondence from a representative of the Fair Work Commission service team that the application as lodged appeared to be inconsistent with the requirement for an employee who has been dismissed to have firstly completed at least 6 months of employment where the employer’s business or enterprise employs 15 or more employees (as in this case). This is referred to as “the minimum employment period”.

[7] The Applicant persisted in her application, regardless. The Respondent subsequently sought to have the application dismissed.

[8] The application was thereafter allocated to me for determination.

[9] The parties were both advised on 7 November 2013 of the jurisdictional objection and provided with a copy of the relevant legislative provisions (as below). The parties were invited to put in any submissions or materials they wished to support any claim they wished to make about the question at hand.

[10] If there was contested evidence I proposed to conduct a hearing. If the facts necessary for the determination of the jurisdictional objection were not challenged then I proposed dealing with the matter “off the documents”.

Legislative context

[11] In this respect, s.382 of the Act reads as follows:

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; and

[...]

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.

[...].

Consideration and conclusion

[12] The Respondent provided a statutory declaration by Ms Deirdre Waller who is responsible for the accounts and payroll activities for the Respondent. Ms Waller declared that she had cause to have downloaded copies of the Applicant’s payslips for the entire period of her employment which was between 5 June 2013 and 26 August 2013 (a period of 11 weeks and 3 days). These payslips were attached to Ms Waller’s statutory declaration.

[13] The Applicant, in response to the Respondent’s statutory declaration, provided a volume of materials including written submissions and copies of various documents relating to the performance of her duties. These materials appeared relevant to the merits of the dismissal but did not address the jurisdictional issue on foot.

[14] There is no dispute between the parties as to the date on which the Applicant was employed and the date on which her dismissal took effect. The Applicant does not dispute Ms Waller’s claims. In any event, the terms of Applicant’s own application support Ms Waller’s claims.

[15] Consistent with s.382 and s.383 of the Act, the Applicant, the Applicant has not served the minimum period of employment as defined (that being six months).

[16] The application as made by the Applicant is not one that is within the Commission’s jurisdiction. The merits of the matter, which is clearly an issue of importance for the Applicant, cannot be considered as a consequence.

[17] The application under s.394 of the Act is dismissed.

SENIOR DEPUTY PRESIDENT

Final written submissions:

28 November 2013

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