Nichelle Steele v Tilburg Pty Ltd t/as St Marys Aged Care

[2015] FWC 694

[2015] FWC 694

FAIR WORK COMMISSION

DECISION

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

Nichelle Steele
v
Tilburg Pty Ltd t/as St Marys Aged Care
(U2014/13234)

DEPUTY PRESIDENT SAMS SYDNEY, 2 FEBRUARY 2015

Application for relief from unfair dismissal - whether applicant a person protected from unfair dismissal - minimum period of employment - transferring employee - old employer and new employer not related entities - applicant given written notice that period of service with old employer would not be recognised - minimum period of employment not completed - applicant not a person protected from unfair dismissal - application dismissed.

[1] This decision arises from an application for a remedy for unfair dismissal lodged on 14 October 2014 by Miss Nichelle Steele (the ‘applicant’), pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). The applicant was dismissed from her employment at an aged care facility (the ‘facility’) operated by Tilburg Pty Ltd t/as St Marys Aged Care (the ‘respondent’) for performance related reasons on 26 September 2014. The respondent objected to the application on the basis that the applicant had not completed the minimum employment period within the meaning of s 383 of the Act.

[2] Section 390(1) of the Act sets out the circumstances in which the Commission may grant a remedy by way of reinstatement or compensation for unfair dismissal. It is set out as follows:

‘390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).’

[3] However, s 396 of the Act sets out a number of matters which the Commission must consider before turning to the merits of an unfair dismissal application. It is expressed as follows:

‘396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.’

[4] The application was lodged within the 21 day statutory time limit imposed by s 394(2) of the Act. The respondent is not a small business as defined (s 23) and therefore sub-section (c) above is not relevant. The applicant’s dismissal was not a case of genuine redundancy and sub-section (d) is also not relevant.

[5] Accordingly, the sole matter to be considered, prior to turning to the merits of the application, is whether the applicant is a person protected from unfair dismissal. Section 382 of the Act sets out when a person is protected from unfair dismissal. It 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

(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.’

[6] Sections 383 and 384 sets out the meaning of ‘minimum employment period’ and the method by which a period of employment is calculated. The sections are expressed 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; 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 [my emphasis].’

[7] The matter was listed for hearing of the respondent’s jurisdictional objection on 22 January 2015. Directions had been issued for the parties to file and serve submissions and evidence in relation to the respondent’s jurisdictional objection. The applicant filed written submissions by email on 6 January 2015. Her submissions did not address the objection raised by the respondent and dealt primarily with the merits of the application. However, the applicant claimed that she had been employed at the facility since May 2011 and was terminated on 26 September 2014. In her Form F2 application, the applicant identified the reasons given by the respondent for her termination as follows:

‘1) You are on Probation and we have the right to terminate your employment.

2) “You do not fit in here and into the philosophys [sic] we are trying to install in this facility.”’

[8] The respondent filed written submissions and an affidavit of Mr Peter Brian Tanner, a director of the respondent. Mr Tanner explained that the respondent had taken over the ownership of the facility on 1 August 2014. It was previously owned and operated by Amarina Investments Pty Ltd (‘Amarina’). Mr Tanner deposed that the respondent and Amarina are not related entities, within the meaning of s 50AAA of the Corporations Act 2001.

[9] Relevantly, the respondent relied on a letter sent to the applicant on 8 July 2014 in the following terms:

‘As previously advised Tilburg Pty Ltd t/a St Marys Aged Care will begin operating the facility, currently known as Amarina from the 1st August 2014. We wish to confirm that all existing employment terms and conditions will continue and all existing leave accruals will be preserved with the exception of the following:

A new minimum employment period will apply because the period of service with the old employer will not be recognised and therefore does not count for purposes of protection from unfair dismissal. This is in accordance with s.384(2)(b) of the Fair Work Act 2009 [my emphasis].

If you have any concerns or questions regarding this letter, please contact the General Manager, David Tanner on [number supplied].’

[10] In written submissions, McCullough Robertson, lawyers for the respondent, put that:

(a) the applicant was a ‘transferring employee’ in relation to a ‘transfer of business’ (s 384(2)(b)(i);

(b) the respondent and Amarina Investments Pty Ltd were not associated entities (ss 12, 384(2)(b)(ii)); and

(c) the applicant had been notified in writing that her previous service with Amarina Investments Pty Ltd would not count for the purposes of determining her period of employment (s 384(2)(b)(iii)).

It followed that the applicant’s period of employment with Amarina therefore fell under the exception set out in s 384(2)(b) of the Act and could not be considered as part of the applicant’s period of employment with the respondent. Accordingly, the applicant was not a person protected from unfair dismissal (s 382(a)).

[11] At a brief hearing of the matter on 22 January 2015, the applicant appeared for herself and Ms P Willoughby, Solicitor appeared with Mr Tanner for the respondent. Neither the applicant, nor Mr Tanner, were required for cross examination.

[12] The applicant submitted that she had not signed a new contract when the respondent had taken over the facility on 1 August 2014. Nevertheless, she acknowledged that there had been a transfer of her entitlements. She agreed she had received the letter dated 8 July 2014 (see para [9]), but said she had not been allowed to read it before signing. She had not queried its contents later. Ms Willoughby reiterated the respondent’s written submissions, and noted that the applicant’s employment was covered by the Aged Care Award 2010 [MA000018]. It was conceded that had the applicant served the minimum period of employment, she would have been a person protected from unfair dismissal.

CONCLUSION

[13] The applicant did not contest the factual matrix set out above or deny that she had received the letter of 8 July 2014. Whether, or when she signed this letter, is not a relevant consideration for the purposes of s 384(2)(b). The section only requires the new employer to inform the employee, in writing, before the new employment, that her previous service was not recognised. There is no doubt that this was done.

[14] Having considered the materials and the submissions of the parties in the hearing on 22 January 2015, I make the following findings:

1. The applicant was a transferring employee in relation to a transfer of business (the taking over of the ownership of the facility by the respondent from Amarina) (s 384(2)(b)(i)).

2. The respondent and Amarina are not ‘associated entities’ (s 384(2)(b)(ii)).

3. The respondent notified the applicant, in writing, on 8 July 2014, prior to the new employment starting, that her period of service with Amarina would not be recognised (s 384(2)(b)(iii).

4. The applicant’s period of employment with the respondent was from 1 August 2014 to 26 September 2014 - a period of less than 2 months.

5. The applicant does not have the minimum employment period as required by s 383 of the Act.

[15] Accordingly, the applicant is not a person protected from unfair dismissal (s 382((a)). The Commission is not able to consider the merits of the application (s 396(b)) and has no jurisdiction to order any remedy for unfair dismissal (s 390(1)(a)). In those circumstances, the application must be dismissed.

[16] An order to this effect will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Applicant in person.

Ms P Willoughby, Solicitor for the respondent.

Hearing details:

2015:

Brisbane.

22 January

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