Nathan Quinlan v G8 Education Limited

[2016] FWC 3731

[2016] FWC 3731

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nathan Quinlan
v
G8 Education Limited
(U2016/5891)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 9 JUNE 2016

Application for relief from unfair dismissal. Jurisdictional objection. Minimum employment period.

[1] This application was listed on 31 May 2016 in Sydney to hear an application by Mr Quinlan for an extension of time for lodgement, as well as a jurisdictional objection by the respondent that the applicant had not completed the minimum period of employment required by the Fair Work Act 2009 (the Act).

[2] Mr Quinlan appeared on his own behalf with a support person, Mrs van Loon. The respondent was represented by Ms Battersby, the Human Relations Manager of the respondent, Ms Kernahan, a workplace relations adviser, and another employee.

[3] I heard the application for an extension of time for lodgement first. At the end of the evidence and submissions I extended the time for lodgement by the required one day.

[4] I then heard the jurisdictional objection of the respondent. The respondent is an employer with more than 10,000 employees. The minimum employment period for the purposes of the unfair dismissal jurisdiction of the Fair Work Commission (Commission) is therefore six months.

[5] On 1 June 2016 I made a Finding that the applicant had completed, in the employ of the respondent, the minimum employment period required by the Act, and issued an Order that the application proceed to conciliation and, if appropriate, arbitration 1.

[6] The respondent has asked for my Reasons for Decision in relation to this Finding and Order.

The Respondent’s Submissions

[7] The respondent tendered and relied upon the Letter of Offer 2 made by it to Mr Quinlan dated 6 January 2016 and signed by him.

[8] Ms Battersby only wished to rely on this letter of offer made to Mr Quinlan. She did not wish to rely on any of the other correspondence 3.

[9] The respondent contends that the applicant’s date of commencement of employment was 22 January 2016.

The Applicant’s Submissions

[1] Mr Quinlan contends that his employment with Earth Kids did not end, but was transferred to the respondent. Mr Quinlan provided the following submissiondated 16 April 2016on which he relied, 4 in addition to the correspondence between the parties:

“Hello David,

There is an obvious dispute between myself and G8 Education about how my 'period of employment' is to be calculated. As part of G8 Education's response for a judicial reason why my application for unfair dismissal should not be recognised, they have provided the "letter of Offer' that was issued to me at the time the transfer of business took place. Within this 'Letter of Offer' Mrs Battersby has pointed out the clause stating that;

"All employee periods of service will be recognised by G8 Education (including Annual Leave, Sick Leave and Long Service Leave entitlements) with the exception of service for the purposes of calculating period of employment."

They are providing this document as evidence to prove that I am not within the legislative time frame to make unfair dismissal claims.

The legislation says that the new employer is to inform the employee in writing that periods of service would not be recognised, however I argue whether an ambiguous statement in the 'Letter of Offer' is clear enough that I would be considered informed. The purpose of the clause above is to protect the employee from a change in conditions and as such clarity should be applied.

I would like to bring to your attention two points that challenge the clarity of the above clause. The first being that within my 'Letter of Offer' G8 Education make no reference to the date 22nd January 2016 being my commencement date with them. Within the box titled 'Current Employee Details' G8 Education have stated my Commencement Date as 7th January 2015, and have premised the 'Current Employee Details' box with the following clause;
"Your current employer has supplied the following information to G8 Education in relation to your current employment. To ensure that G8 Education provides you with the correct employment conditions, please check the details below and make any necessary changes so that we can validate the information with your current employer."

I believe that if G8 Education wish to insert the clause relating to my previous period of employment not being recognised then they also have a responsibility to be clear about what they believe my actual commencement date to be. The 'Letter of Offer' they have supplied to support their stance does more than show an ambiguity in my commencement date, it actually clarifies that my commencement date is 7th January 2015.

The second point is the recognition of my probationary period. During the investigation process relating to my dismissal by G8 Education they initially recognised my employment status as falling within my probationary period. I questioned this and they corrected their mistake and clarified that I was no longer under probation because it was served in relation to my period of employment commencing 7th January 2015. As I am aware, a probationary period relates to the commencement date of employment with an employer and G8 Education have recognised the 7th January 2015 as my commencement date for the purpose of calculating my probationary period, which itself is considered a 'period of employment'.

I have attached my original contract from Earth Kids Childcare Pty Ltd which shows my commencement date of employment as 5th January 2015.

I have attached the notes from the investigation that shows G8 Education were recognising my employment as 'under probation'.

I have attached the statement made by Mrs Bernadette Robson via email correspondence correcting my employment status as 'not being under probation'.”

“I have checked the form and have noted that there is an administrative error regarding Probation. I can confirm that you are not in a contractual probationary period.

Can you please provide any other information that you wish to be part of the investigation in writing by close of business Monday 7 March 2016.”

Conclusion

[2] As a result of an offer of employment dated 22 August 2014 Mr Quinlan commenced employment with Earth Kids Childcare Pty Ltd (Earth Kids) on 5 January 2015.

[3] The respondent purchased the business of Earth Kids in January 2016.

[4] Ms Battersby, on behalf of the respondent, wrote to Mr Quinlan on 6 January 2016,in correspondence previously referred to by the respondent as the letter of offer, as follows:

“6 January 2016

Nathan Quinlan
C/O – Earth Kids Early Learning Centre

Re – Letter of Offer

Dear Nathan,

As you are aware, Earth Kids will be purchased by G8 Education Limited. This Centre is an exciting and very positive acquisition for G8 Education, a company that is quickly gaining recognition as an industry leader in terms of quality and professionalism.

As part of the transition, an Operations Manager from our office will be visiting your Centre to introduce themselves and meet with each team member. During this time, more information will be provided and you will have an opportunity to ask questions about the business and how we will be able to support you.

Your current hourly wage will be maintained by G8 Education, however all other conditions of employment will ne in accordance with the relevant Modern Awards and National Employment standards. All employee periods of service will be recognised by G8 Education (including Annual Leave, Sick Leave, and Long Service Leave entitlements) with the exception of service for the purpose of calculating period of employment. Information on G8 Education policies and procedures will also be provided so that you are aware of any changes to the operational aspects of the business.

Please feel free to contact your immediate manager in the first instance who will follow up on your behalf should you have any questions about the change. If you still have any concerns or questions, please contact me on ---------.

Yours sincerely

Jessica Battersby
Human Resources Manager
G8 Education Limited”

(my emphasis)

[5] Ms Battersby, on behalf of the respondent, then wrote to Mr Quinlan on 23 February 2016 5 as follows:

“23 February 2016

Nathan Quinlan
C/O – Earth Kids Early Learning Centre

Re – Confirmation of Leave Accruals

Dear Nathan,

As you are aware, G8 Education has offered you employment at Earth Kids Early Learning Centre on similar terms to that of your previous employment at the Centre. As part of this agreement G8 Education will honor your previous service and the Centre. We will be honouring your original start date at the Centre of 07 January 2015 and will take on your Annual, Personal and Long Service Leave entitlements as set out below

Annual Leave – 26.71 hours
Personal Leave – 15.36 hours
Long Service Leave – 34.58 hours

These entitlements have been accrued by your previous owner up to the 22 January 2016. Please check these accruals to ensure that they are correct and return this signed letter to your Director.

We look forward to working with you.

Yours sincerely

Jessica Battersby
Human Resources Manager
G8 Education Limited”

(my emphasis)

[6] On 13 March 2016 correspondence 6 was forwarded to Mr Quinlan by the respondent. It stated in part:

“ Re: Termination of Employment

Dear Nathan,

This letter serves as confirmation of the termination of your employment. A meeting was scheduled for 10th March 2016 where you were advised that your employment was being terminated with Earth Kids.

---------“

(my emphasis)

[7] At the hearing I asked Ms Battersby 7 toexplain how the respondent could state that it intended to honour Mr Quinlan’s previous service with Earth Kids as it did in the correspondence of 23 February 2016, and still argued that his employment with the respondent commenced from signing his contract of employment with the respondent. For the purpose of considering whether there was any evidence of termination of employment by Earth Kids, I asked Ms Battersby if the respondent could provide any evidence of the termination of employment of Mr Quinlan by Earth Kids, such as payment of notice. She was not able to do so.

“ ….  How do you think it's possible to recognise periods of service for some things and to exclude others?  If you recognise periods of annual leave, sick leave and long service leave, which you say you did, did you pay those out?  Did either you or the previous employer, whoever they were - Earth Kids Early Learning - did they pay out the entitlements of Mr Quinlan?---No, so the entitlements weren't paid out.  They were taken over by G8 Education.

Okay, so he wasn't paid any notice for termination of employment?---No.

And/or any of his accrued annual leave or long service leave?---No.

And you credited him with any accrued sick leave?---Correct.

But you say that despite those things you did not count any previous service towards the service for the purposes of calculating the period of employment?---Correct.

Would you like to explain to me how that is possible?---So it's my understanding that within the Fair Work Act it is possible for an employer to transfer an employee's employment as long as we are expressly advising the employee on commencement that the period of employment will re-commence or start again, that we're able to do so.

In most cases where that occurs, Ms Battersby, the employee entitlements are paid out?---Okay.

So how do you - termination of employment for the purposes of - - -?---Mm-hm.

And recommencement of employment would require mostly - - -?---Mm-hm, okay.

*** JESSICA BATTERSBY XN THE SENIOR DEPUTY PRESIDENT

- - - the payment of entitlements.  How do you say that - that didn't occur here?---So there was an agreement between the previous owner and G8 Education that we would honour the original start date for the purposes of accruing and calculating annual leave, which was expressed in the letter of offer and also the confirmation of leave accruals letter, but the wording within the letter of offer clearly states that there is an exception there, which is the service - - -

I know you say that?---Yes.

There's been no notice of termination of employment or payment of notice though, has there?---So there was a notice of termination, so there was a termination letter - - -

Was there notice?  You know, if someone's terminated - employment is terminated - - -?---There was correct notice given, yes.

So was Mr Quinlan paid some sum of money but for termination of employment?---Not for notice because the appropriate notice period was provided.

What does that mean?---So there was a termination letter issued to the terminating employees from the service.

Do you have that?---I don't have a copy of that, no.

So how do I know that's the case?  Do you have the file here that shows that Mr Quinlan's employment was terminated?---I don't have anything, no, to provide.”

[8] I was not persuaded that the respondent had substantiated its jurisdictional objection. I was satisfied that Mr Quinlan’s employment had been transferred from Earth Kids to the respondent. In reaching this conclusion I was persuaded by the factors listed below.

● The proposed commencement date of the applicant’s employment with the respondent was not clear.

● The applicant did not serve a period of probation with the respondent. Mr Quinlan’s period of probation, recognised by the respondent, was served with Earth Kids.

● Ms Battersby’s letter of 23 February 2016 confirming the details of Mr Quinlan’s leave accruals did not mention any intention to not recognise service.

● Despite this jurisdictional objection being listed for determination, and the issue having been a live issue for some time, Ms Battersby did not attend the hearing with any evidence as to the arrangements made by Earth Kids with Mr Quinlan. She submitted that notice was paid but produced no evidence to that effect.

[9] However, in this case I was satisfied that Mr Quinlan’s employment was transferred for all purposes from Earth Kids to the respondent.

[10] Whilst it is not necessary in these circumstances to address this issue in full, I am not persuaded that it is possible to transfer employment for some purposes and/or entitlements and not others.

[11] I am satisfied that the attempted exclusion of previous service in the respondent’s letter of offer of 6 January 2016 was an attempt to avoid a necessary consequence of the transfer of his employment i.e. the prospect of the period of employment of Mr Quinlan meeting the minimum employment period pursuant to the Act.

SENIOR DEPUTY PRESIDENT

 1   PR 581101

 2   Exhibit Respondent 1

 3   PN 142 to PN 149

 4   Exhibit Applicant 3

 5   Exhibit Applicant 2

 6   Attachment to Exhibit Applicant 1

 7   PN 125 PN 141

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