Ms Rosa Valois v Marlee Country Kennels

[2018] FWC 3433

[2018] FWC 3433

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ms Rosa Valois
v
Marlee Country Kennels
(U2018/3151)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 9 JULY 2018

Application for an unfair dismissal remedy; casual employee; date on which dismissal took effect in dispute; minimum period of employment; small business employer; application dismissed.

[1] Ms Rosa Valois (the Applicant) made an application to the Fair Work Commission (Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). On 8 June 2018, I decided, ex tempore, to dismiss the application because the Applicant had not, at the time of the ending of the employment relationship, completed a period of employment that was at least the minimum period described in s.383 of the Act. The Applicant was therefore not a person protected from unfair dismissal as described in s.382 of the Act. These are my reasons for that decision.

[2] In her application lodged on 26 March 2018, the Applicant contends that she was engaged as a casual employee by Marlee Country Kennels (the Respondent). The date on which the Applicant commenced employment with the Respondent and the date on which the dismissal took effect are in dispute.

[3] On the 26 April 2018, the Respondent lodged three jurisdictional objections to the application. Those objections are that the Applicant was not dismissed, that the employer is a small business and the dismissal was consistent with the Small Business Fair Dismissal Code, and the Applicant’s employment did not meet the minimum employment period required by the Act. It is not in dispute that the Respondent is a small business employer. 1

[4] For the reasons set out below, I have found that the Respondent is a small business employer for the purposes of the Act, that the Applicant had not served the minimum employment period required by s.382 of the Act and that as a result, the Applicant is not protected from unfair dismissal.

Background

[5] In the Form F2 Application for Unfair Dismissal Remedy filed by the Applicant, the Applicant claims that she commenced employment with the Respondent on 18 March 2017. The Applicant states that her dismissal took effect on 1 February 2018, that being the last day she attended work. The Applicant has not provided any evidence to substantiate these dates.

[6] In its Form F3 Employer Response Form, the Respondent claims that the Applicant commenced employment on 24 May 2017 and that the employment relationship had ended at the initiative of the Applicant. The Respondent said that after the Applicant had taken a number of days of sick leave and had complained about ill health and stress, it offered for her to have some time off work. The Respondent said that it later agreed to meet with the Applicant to discuss her situation and possible return to work on 1 March 2018 however she failed to attend that meeting. The Respondent said that the Applicant did not attempt to contact it following her failure to attend the meeting and it assumed from her conduct that she was resigning her employment.

[7] For the purposes of deciding whether the Applicant was, at the time the employment relationship ended, protected from unfair dismissal, I make the following findings as to the commencement date and ending date of the employment. I accept that the Applicant’s employment commenced on 18 March 2017. The Applicant did not work for the Respondent since 1 February 2018. The Applicant was a casual employee. I accept the Applicant’s contention that her casual employment ended on that date, namely, 1 February 2018. On this basis, on the Applicant’s case, she was employed for a period of less than 12 months by the Respondent, which is a small business employer within the meaning of the Act.

Consideration and application of the statutory framework

[8] An order for reinstatement or compensation may only be made if I am satisfied the Applicant was, at the date of the dismissal, protected from unfair dismissal under the Act.

[9] Section 382 of the Act sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal 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

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[10] The minimum employment period and period of employment are relevantly defined in s.383 and 384 of the Act 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; …”

[11] As indicated above it is not in dispute that the Respondent was at the time of the Applicant’s alleged dismissal a “small business employer” within the meaning of s.23 of the Act.

[12] The question therefore is whether the Applicant meets the minimum employment period requirement of 12 months as provided by s.383 of the Act, in order for the Commission to have jurisdiction to deal with her application.

[13] On the facts asserted in the documents that have been filed by the Applicant, which for the purposes of this application I accept, the Applicant did not complete the minimum employment period at the time of the dismissal. As noted earlier, the Respondent asserted that employment ended on 1 March 2018. Even if I were to accept this as the date the employment ended, the Applicant had not, on this date, completed the 12 month minimum employment period at the time of the ending of the employment relationship.

Conclusion

[14] Consequently, the Applicant has not completed the minimum period of employment as set out in s.383 of the Act and she was not a person protected from unfair dismissal.

[15] The application is dismissed pursuant to my decision on 8 June 2018 and recorded in transcript.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Transcript dated 8 June 2018 at PN41 – PN46; PN124 – PN134