Nadia Cammarere v Aboriginal Elders and Community Care Services T/A Aboriginal Community Services
[2018] FWC 2462
•16 MAY 2018
| [2018] FWC 2462 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Nadia Cammarere
v
Aboriginal Elders and Community Care Services T/A Aboriginal Community Services
(U2018/1723)
COMMISSIONER HAMPTON | SYDNEY, 16 MAY 2018 |
Application for relief from unfair dismissal – whether protected from unfair dismissal – minimum employment period – dispute about correct commencement date – whether periods of unpaid leave to be excluded for the purposes of continuous service – whether discretion exists to take account of the fairness of the circumstances – minimum employment period not met – no jurisdiction – application dismissed.
1. Introduction and Case Outline
[1] Ms Nadia Cammarere has made an application under s.394 of Fair Work Act 2009 (the FW Act) for a remedy in connection with an alleged unfair dismissal by Aboriginal Elders and Community Care Services T/A Aboriginal Community Services (ACS).
[2] ACS is a non-for-profit organisation which provides community and residential care for Aboriginal people in various locations throughout the Adelaide metropolitan area and regional South Australia, including the remote Anangu Pitjantjatjara Yankunytjatjara lands. ACS employed approximately 100 employees at the time of the events leading to this application.
[3] Ms Cammarere was employed by ACS as an Executive Assistance/Project Coordinator in mid-2017. The precise date of her commencement is one of the issues to be determined in this matter.
[4] This decision concerns whether Ms Cammarere is eligible to make this application. More precisely, whether Ms Cammarere has met the minimum employment period (MEP) so as to be protected from unfair dismissal under the terms of the FW Act.
[5] It is common ground that Ms Cammarere was dismissed with effect on 1 February 2018 and was paid a week’s pay in lieu notice. It is also agreed that ACS is not a small business within the meaning of the FW Act, and as a result, the relevant MEP is six months.
[6] Ms Cammarere contends that she has met the MEP on the following basis:
• The employment agreement records her start date as 31 July 2017 and she was dismissed on 1 February 2018, being a period of six months;
• Ms Cammarere made a request to commence work on 2 August 2017 due to the need to attend a family member’s funeral, but considered that she was employed as at 31 July 2017;
• There is no evidence that between 31 July 2017 and 2 August 2017 Ms Cammarere was not paid or treated as an employee, and she questions the reliability of the pay records provided by the respondent;
• Ms Cammarere took leave without pay on 21 August 2017 but was entitled to take time off in lieu of overtime (TOIL) and was not aware of the consequences (the effect on her continuous service) associated with taking leave without pay; and
• Ms Cammarere accrued time off in lieu whilst in employment and this time extends her period of continuous service such that she meets the minimum employment period.
[7] Ms Cammarere also contends that ACS did not originally object to the application on the basis of the MEP and suggests that it may have made the decision to terminate her on the day in question to avoid her right to bring this matter. The applicant also raises concerns about the overall fairness of the result if ACS’s position on the MEP is accepted. I will describe these additional matters as Ms Cammarere’s “fairness proposition”.
[8] ACS contends that Ms Cammarere does not meet the MEP on the following basis:
• Ms Cammarere actually commenced employment on 2 August 2017 and was dismissed at 5:15 pm on 1 February 2018 and this period is less than the required completed six calendar months;
• The MEP also requires consideration of the extent of continuous service;
• The additional hours of work performed throughout her employment were part of Ms Cammarere’s employment conditions and do not extend the period of continuous service; and
• The day of leave without pay taken on 21 August 2017 should be excluded from the calculation of continuous service.
[9] As a result, ACS contends that the applicant is two days short of meeting the relevant MEP.
[10] After conducting a short directions hearing with the parties I determined to deal with the MEP as a preliminary jurisdictional matter by conducting a hearing. I note that ACS had previously raised an additional jurisdictional objection in relation to the dismissal being a “genuine redundancy”, 1 although it no longer presses that objection.2
2. The evidence before the Commission
[11] Ms Cammarere appeared on her own behalf. Ms Suzanne Laycock (Manager, People and Organisational Development) and Mr Graham Aitken (Chief Executive Officer) appeared on behalf of ACS. 3
[12] Each of those appearing provided a witness statement and also gave sworn evidence as part of the hearing of this matter.
[13] I found the evidence of all of the witnesses to be open and honest. However, Ms Cammarere had a tendency to raise concerns about the veracity of certain documents without any apparent foundation, other than perhaps their implications for this matter.
[14] In addition to the oral witness evidence, the following documents are before the Commission:
• Witness Statement (including submissions) of Ms Cammarere dated 3 May 2018 (exhibit A1);
• Employee time card for the period from 24 July 2017 to 6 August 2017 (exhibit R1);
• Witness Statement of Mr Graham Aitken dated 19 April 2018 (exhibit R2), including:
○ Email dated 1 February 2018 from Mr Aitken to all ACS staff attached and marked as ‘GA–1’;
○ Correspondence dated 1 February 2018 to Ms Cammarere from Mr Aitken attached and marked as ‘GA-2’;
○ Email dated 2 February 2018 from Mr Aitken to all ACS staff attached and marked as ‘GA-3’;
• Witness Statement of Ms Suzanne Laycock dated 19 April 2018 (exhibit R3), including:
○ Employment Agreement attached and marked as ‘SL-1’;
○ Various email correspondence between Mr Adam Hooper and Ms Cammarere attached and marked as ‘SL-2’;
○ Email from Ms Cammarere to Mr Hooper dated 2 August 2017 attached and marked as ‘SL-3’;
○ Employee master report attached as ‘SL-4’;
○ Written correspondence dated 1 February 2018 from Mr Aitken to Ms Cammarere attached and marked as ‘SL-5’;
○ Payslip for pay period from 21 August 2017 to 3 September 2017 attached and marked as ‘SL-6’;
○ Employee time card report for pay period from 21 August 2017 to 3 September 2017 attached and marked as ‘SL-7’; and
○ Email correspondence between Ms Cammarere and Mr Hooper dated 14 August 2017 attached and marked as ‘SL-8’.
[15] The business records provided by ACS confirm the basic facts relied upon by it in this matter.
3. The requirement to complete a minimum employment period
[16] Section 382 of the FW Act provides that unless an applicant employee has completed a period of employment with his or her employer of at least the MEP, they will not be a person who is protected from unfair dismissal and thereby not eligible to bring an unfair dismissal application. Section 390(1)(a) of the FW Act also confirms that an applicant employee cannot be found to have been unfairly dismissed if they are not “protected” within the meaning of the relevant Part of the legislation.
[17] The length and nature of the MEP is defined in s.383 of the FW Act in the following terms:
“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.”
[18] ACS is not a small business and as a result the relevant MEP is 6 months.
[19] Section 384 of the FW Act defines the period of employment in the following terms:
“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; and
(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;
the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”
[20] Accordingly, the MEP is assessed on the basis of “continuous service” and this is defined in s.22 of the FW Act to take into account the impact of certain excluded periods. Relevantly, the provision is as follows:
“22 Meanings of service and continuous service
General meaning
(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 unauthorised 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 described 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.
(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies. If they do so, subsection (3) applies accordingly.
… …”4
[21] There have been no regulations made prescribing different kinds of periods for the purposes of this definition.5
[22] The FW Act does not of itself define the meaning of “6 months” but the following is clear from ss.383 and 384:
• The end of the period is to be assessed by reference to the earlier of the time when the person is given notice of the dismissal or immediately before the dismissal – this is the particular time; and
• The period is the period of continuous service the employee has completed with the employer at that time as an employee.
[23] Section 22(1) of the Acts Interpretation Act 1901 includes:
"In any Act, unless the contrary intention appears:
...
(b) `Month' shall mean calendar month;
...
(g) `Calendar month' means a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month."
[24] Section 46(1) of the Acts Interpretation Act 1901 also includes:
"Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then:
(a) unless the contrary intention appears, expressions used in any instrument so made, granted or issued shall have the same meanings as in the Act conferring the power, and this Act shall apply to any instrument so made, granted or issued as if it were an Act and as if each such rule, regulation or by-law were a section of an Act."
[25] There is no contrary intention apparent in the FW Act and as a result, "6 months" in s.383 means 6 calendar months; that is, a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the sixth month following. 6 This must be applied subject to the implications of the express requirement to consider the extent of continuous service as defined under the FW Act.
[26] As a result, the MEP as applied in this case requires that Ms Cammarere has completed, at the time of her dismissal, a period of six calendar months continuous service. That service is to be calculated according to the provisions of s.22, including by taking into account the impact of any excluded periods.
[27] The MEP is a jurisdictional prerequisite and the Commission does not have any discretion to waive or alter that requirement.7
4. The issues requiring determination
[28] The parties agree that the date of termination was 1 February 2018 and there has been no submission advanced that the one weeks’ pay in lieu of notice had any effect on the MEP. This approach accords with the meaning of the MEP including that the relevant reference point is defined under s.383 as being the earlier of the time when the person is given notice of the dismissal or immediately before the dismissal. 8 Further, there has been no contention that the employment commenced any earlier than 31 July 2017.
[29] As a result, in this case I am principally required to consider three matters. Firstly, when did Ms Cammarere’s employment commence for present purposes. Secondly, whether there are, in any event, excluded periods of service sufficient to mean that Ms Cammarere has not met the MEP. This in turn requires me to determine whether certain absences relied upon by ACS were unpaid leave or unpaid unauthorised absences (s.22(2)(b)). Thirdly, whether Ms Cammarere can rely upon her additional working hours, and what she contends to be a TOIL system, to otherwise meet the MEP.
[30] I will also consider the “fairness proposition” advanced by Ms Cammarere.
4.1 The date Ms Cammarere commenced employment
[31] Ms Cammarere contends that her start date was 31 July 2017, whilst ACS submits that the commencement date is 2 August 2017.
[32] The employment agreement provides that the commencement date for Ms Cammarere’s employment was “31st July 2017 (or otherwise agreed)”. 9
[33] It is not disputed that the first day Ms Cammarere physically attended the workplace was 2 August 2017. She was scheduled to start on 31 July 2017, but made a request on 26 July 2017 to “re-schedule” her commencement date until 2 August 2017, 10 due to a family bereavement. The request was agreed to by ACS and Ms Cammarere subsequently commenced employment on 2 August 2017.
[34] It appears that the later date, being 2 August 2017, was a date that had been “otherwise agreed” between the parties as contemplated by the employment agreement. Further, this change was triggered by the explicit request made by Ms Cammarere to delay the commencement date. The fact that Ms Cammarere may have already been anticipating her delayed first day of work does not, in these circumstances, lead to a basis to deny the obvious implication of that delay.
[35] Ms Cammarere contends that she could not recall whether she had been paid, or otherwise, between 31 July 2017 and 1 August 2017.
[36] The employee time card report for the period between 24 July 2017 to 6 August 2017 confirms that Ms Cammarere was not paid, and no leave was sought or recorded, for either 31 July 2017 or 1 August 2017. This is consistent with what appears to have been the mutual understanding of the parties at the time; that is, that she would in fact “re-schedule” her commencement date to 2 August 2017.
[37] Consequently, I find that the commencement date of Ms Cammarere’s employment was 2 August 2017.
4.2 Periods to be excluded for the purpose of continuous service
[38] Ms Cammarere did not attend work on 21 August 2017. The evidence supports the notion that Ms Cammarere applied for a day’s leave without pay and that this is how that day was treated.
[39] Although Ms Cammarere contends that she could have applied for and taken TOIL and that she did not appreciate the potential consequences of taking a day of unpaid leave at that time, this did not happen and does not change the facts of that day. The unpaid leave does not fit into any of the exceptions in s.22(2)(b)(i) to (iii). As a result, the unpaid leave day on 21 August 2017 does not break the period of service but is a day to be excluded from the applicant’s service period due to s.22(2)(b) of the FW Act.
[40] I have found that Ms Cammarere’s first date of employment was 2 August 2017; however, I note that even if the applicant’s commencement date was found to have been 31 July 2017, the days between then and 2 August 2017 (31 July 2017 and 1 August 2017) were not paid and for present purposes would be treated as a period of unpaid leave. Accordingly, and in any event, even if the date of commencement was found to have been 31 July 2017 those days would not have been included for the purposes of the MEP.
4.3 Whether time off in lieu accrued should extend the period of continuous service
[41] Ms Cammarere contends, in effect, that her period of service ought to be extended due to the hours of work performed outside of her “ordinary hours”. This included her attendance at meetings as well as additional hours of work performed more generally. Ms Cammarere further contends that these additional hours should have been subject to a TOIL arrangement and would represent the two days that ACS contends she is short of the MEP.
[42] ACS contends that these hours are part of Ms Cammarere’s contracted hours and that no TOIL arrangements applied.
[43] The employment contract expressly contemplates the nature of the “additional” hours relied upon by Ms Cammarere. 11 There is no obvious TOIL scheme applicable to her employment however I do not need to reach a conclusion on this aspect.
[44] Even if Ms Cammarere’s contentions about the facts of the additional hours and some form of TOIL arrangements were accepted, this is not a relevant consideration in determining the length of the applicant’s continuous service or her service period in the circumstances evident here. That is, the MEP is measured according to the actual period of employment. There is no suggestion that any TOIL was taken after the stated cessation of that employment and there is no proper basis under the FW Act upon which the consideration of additional hours that may have occurred during the period of employment can be relied upon to extend that period.
[45] If anything, any additional hours beyond the normal hours, not otherwise compensated for, may lead to a right to further payments upon termination (but not an additional service period). I make no findings about that prospect in this case as it is beyond the scope of the present matter and the evidence before the Commission.
4.4 The “fairness proposition”
[46] Ms Cammarere makes two related contentions. Firstly, that ACS did not rely upon the MEP objection in its first response to the application and later, apparently based upon legal advice, decided to raise the issue as a technicality to defeat her application.
[47] Secondly, that ACS made the decision to terminate her employment because of the MEP and the consequences for her rights to bring an application of this nature.
[48] There is some tension between these propositions although I have considered each in the alternative.
[49] It appears that ACS did actually raise the MEP objection in its response to the application. 12 In any event, it is a jurisdictional issue and the Commission would need to deal with the matter and apply the FW Act even if it were not expressly raised by a party. To the extent that Ms Cammarere suggests that any of the business records have been altered by ACS to assist with its MEP case after it became aware of the issue, there is no proper foundation for that suggestion.
[50] In terms of the motivation of ACS to terminate Ms Cammarere on the day in question because of the MEP, this was not put to the ACS’s witnesses and does not sit well with the first proposition or the evidence from ACS about the reason for the dismissal and associated circumstances.
[51] Even if demonstrated, this would not of itself mean that the MEP had been met. It may however provide a basis for a potential general protections application 13 but such an application has not been made.
[52] Ms Cammarere also contends that the result of these events for this application is unfair because she did not know, at the time, the impact of her decision to seek a delay in the commencement day or her request for the unpaid leave day. Whilst I can appreciate that perspective and the fact that the events occurred in a particular context, the MEP is set by Parliament and must be applied, even if this leads to the exclusion of otherwise potentially meritorious applications. That is, the MEP jurisdictional requirement is clear and must be applied to the facts of a matter according to the terms of the FW Act.
5. Conclusions
[53] Ms Cammarere commenced employment on 2 August 2017, being the agreed revised date, which in this case was also the first day she attended the workplace. The applicant was dismissed on 1 February 2018.
[54] The day taken as leave without pay on 21 August 2017 further reduces the period of actual continuous service by one day.
[55] In the circumstances, Ms Cammarere would in practice need to have completed a period of employment which concluded after 2 February 2018. This did not occur.
[56] Ms Cammarere’s employment does not meet the MEP and as a result she is not protected from unfair dismissal.
[57] In all of these circumstances, the unfair dismissal application is beyond the jurisdiction of the Commission and must be dismissed. An Order14 to that end is being issued in conjunction with this decision.
COMMISSIONER
Appearances:
N Cammarere, the applicant, on her own behalf.
S Laycock and G Aitken on behalf of Aboriginal Elders and Community Care Services T/A Aboriginal Community Services.
Hearing details:
2018
Adelaide
May 9.
<PR606761>
1 Section 389 of the FW Act. The objection was raised in the Form F3 Employer Response to Unfair Dismissal Application filed on 5 March 2018.
2 The respondent advised the Commission by email dated 8 May 2018 that it no longer pressed the jurisdictional objection in relation to genuine redundancy.
3 The respondent made a request for permission to be legally represented which was denied on 4 May 2018 and reasons for that decision were provided separately to the parties at that time.
4 Section 22 also deals with other exceptions in dealing with the exclusions from service and circumstances that are not relevant to this matter.
5 Workpac Pty Ltd v Bambach[2012] FWAFB 3206 at [29].
6 This approach was adopted in Wilkinson v Skippers Aviation Pty Ltd AIRC PR903635 and followed in various decisions of this Commission under the FW Act – see for example: Prigge v Manheim Fowles P/L[2010] FWA 28, Simpson Fedorov Family Lawyers Pty Ltd ATF The FFL Unit Trust [2016] FWC 6786 and Henderson v Hertz[2017] FWC 942.
7 See Wales v 3 Point Motors Pty Ltd T/A 3 Point Motors[2012] FWA 3817 at [28].
8 Section 383(a) of the FW Act.
9 Exhibit R3, Attachment SL-1.
10 Email from applicant to ACS on 26 July 2017 – attachment SL2 to exhibit R2.
11 Exhibit R3, Attachment SL-1.
12 Form F3 Employer Response to Unfair Dismissal Application filed on 5 March 2018.
13 Section 365 of the FW Act.
14 PR607035.
Printed by authority of the Commonwealth Government Printer
0
4
0