Naeem Zaman v Foxy Four Pty Ltd T/A Fernwood Fitness Tuggeranong
[2012] FWA 3892
•4 MAY 2012
[2012] FWA 3892 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Naeem Zaman
v
Foxy Four Pty Ltd T/A Fernwood Fitness Tuggeranong
(U2012/4930)
COMMISSIONER DEEGAN | CANBERRA, 4 MAY 2012 |
Unfair dismissal - jurisdiction - minimum employment period - casual employee - continuous service.
[1] On 13 February 2012 Mr Naeem Zaman (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Foxy Four Pty Ltd trading as Fernwood Fitness Tuggeranong (the respondent).
[2] The applicant alleged that his employment had been terminated by the respondent on 8 February 2012.
[3] By its response, lodged on 17 February 2012, the respondent raised jurisdictional objections to the application. According to the respondent the applicant had not been dismissed by the respondent and had, in any event, been employed by the respondent for less than two months at the date he claimed to have been dismissed. Initially the respondent claimed to have been a small business for the purposes of the legislation but this claim was not pursued.
[4] Given the respondent’s objection the matter was listed for a jurisdictional hearing to determine whether the applicant met the minimum employment requirement for making an unfair dismissal application. Both parties filed witness statements and written submissions prior to the hearing.
The Respondent’s case
[5] Ms Donna Lee, Director of the respondent, gave evidence in support of the objection. A witness statement was filed and was expanded upon at the hearing.
[6] It was the evidence of Ms Lee that:
- the respondent commenced operating the business in February 2011;
- the applicant had been employed as a casual by the former business owners prior to February 2011 and had been employed as a casual by the respondent when it commenced trading;
- the applicant had taught fitness classes for the respondent on a casual basis from February 2011 but verbally resigned his employment on or about 31 August 2011;
- when asked to provide two weeks’ notice the applicant agreed to give one week’s notice and taught his last class on 7 September 2011;
- a farewell party was held for the applicant and two other employees who were leaving the respondent’s employ on 28 September 2011;
- the applicant attended the farewell party and was given a DVD as a farewell gift;
- she had archived the applicant’s employment details on the respondent’s computer system in September 2011;
- in early December 2011 the applicant was re-employed by the respondent as a casual fitness instructor and taught his first class on 14 December 2011;
- she had re-entered the applicant’s employment details on the computer system in December when he recommenced employment;
- the applicant lodged his unfair dismissal application on 13 February 2012 claiming that his employment had been terminated on 8 February 2012.
[7] In support of the respondent’s case documents were produced indicating that the applicant had not been paid between mid-September 2011 and late December 2011.
[8] It was the respondent’s case that, at the time of his dismissal, the applicant had worked continuously for the respondent for a period of less than two months. His earlier period of employment had ended in September 2011 and his final period of employment commenced in December 2011.
The Applicant’s case
[9] It was the applicant’s case that he had been continuously employed at the Fernwood Fitness Centre in Tuggeranong, as a casual fitness instructor, for more than two years. While the applicant had been employed by the former owners of the business, he did not dispute the respondent’s claim that it had only commenced operating the business in February 2011.
[10] The applicant’s evidence was contained in his witness statement and a number of attached documents.
[11] It was the evidence of the applicant that;
- his employment with the respondent did not cease in September 2011 and recommence in December 2011 but was continuous;
- he had merely allowed his classes to be filled by another person while a faulty microphone was fixed;
- he believed that the party he attended in late September 2011 was a farewell party for the other two employees, not for him as well;
- the other employees who were leaving were given flowers while he was only given a DVD and he had no idea why he was also given a present.
[12] The applicant attached two documents to his witness statement (Attachments A and B) which he claimed proved that he had continued to teach classes throughout the period September to December 2011. Under cross-examination he conceded that the documents did not relate to his employment and he had not taught any classes in that period.
[13] In essence, the applicant’s case was that, as the respondent had no written resignation from him in September 2011 and he had not been required to sign new forms when he recommenced giving classes in December 2011, there had been no cessation of employment.
[14] The applicant also attached to his witness statement an unsigned statement from a former employee of the respondent. The statement of this person was not provided to the respondent until 30 April 2012 and when it became clear that the person would be required for cross-examination there was not sufficient time to make the necessary arrangements for the person to give evidence from FWA premises in Perth on 1 May 2012.
[15] Having read the statement of evidence from the applicant’s proposed witness I formed the view that her proposed evidence was of little relevance to the matter for determination. The only matter which touched on the question before me was the proposed witness’s belief that that the applicant had not ceased employment in September 2011. As I found the reasons given for this belief less than compelling, I determined that it was not necessary to delay the hearing to enable the proposed witness to give the evidence.
[16] Under cross-examination the applicant conceded Ms Lee had asked him to give two weeks’ notice in September 2011 and that he had responded that he would give her one week. Further the applicant agreed that he had seen the email inviting staff to a farewell party for him and two other employees and that he had not questioned the email. His friend had responded to the email on his behalf and they both attended the party. When asked what he thought the DVD gift was for he replied that he did not know but did not consider it a farewell gift as he wasn’t given flowers. When it was suggested that it might have been the view of the organisers that while the female staff who were leaving would like flowers, the applicant would prefer a DVD he responded that he would have appreciated flowers.
The Legislation
[17] The Act relevantly provides 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
[18] I am satisfied that the respondent is not a small business employer for the purposes of the legislation. Therefore, in order to be a person protected from unfair dismissal the applicant must have completed at least 6 months continuous employment with his employer at the time of the termination.
[19] There are a number of factual contests between the evidence given by Ms Lee and that of the applicant. I found Ms Lee a convincing witness. She gave her evidence clearly and directly. I accept her evidence that the applicant resigned his casual employment with the respondent at the end of August 2011, giving one week’s notice and ceasing work on 7 September 2011. The applicant’s own evidence, the payroll records and the email concerning the farewell party support Ms Lee’s version of the facts. I also accept Ms Lee’s evidence that the applicant was re-employed, after an interval of more than three months, in December 2011.
[20] I do not accept the applicant’s evidence as to the circumstances of his ceasing work in September. His evidence was evasive and contradictory. He seemed to believe that the fact that there was no written resignation meant that there was no cessation of employment. He confirmed that he gave Ms Lee a week’s notice but claimed that it was to allow her to fill his classes on a temporary basis while a microphone was fixed. I accept Ms Lee’s evidence that this was not the case and the applicant had informed her that he no longer wished to work at the fitness centre.
[21] The applicant was not a witness of truth. He attempted to claim that documents he had produced indicated that his instructing duties had continued throughout September-December 2011. Although the applicant withdrew this claim when challenged, the fact that it was made when he knew it was not true, indicates the lengths to which he was prepared to go to in an attempt to make out his case.
[22] As the applicant was a casual employee some break between periods of employment would not always be indicative of a break in continuous casual employment. The documentary evidence showed that up until September 2011 the applicant had taught a class on a regular, weekly basis. The applicant ceased to perform any duties after 7 September 2011 and the termination of his employment was acknowledged by his employer and his peers. The applicant cannot sustain his claim that his employment was continuous. The evidence is clear. The applicant’s employment with the respondent ceased in September 2011. A new employment contract commenced in December 2011.
[23] On all the evidence I find that, at the time of the termination of his employment in February 2012, the applicant had not been continuously employed by the respondent for a period of six months. As a consequence he is not a person protected from unfair dismissal.
[24] The jurisdictional objection is upheld. The application is dismissed.
COMMISSIONER
Appearances:
The Applicant in person
Ms D Lee for the Respondent.
Hearing details:
2012.
Canberra:
May 1.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR523461>
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