Nigel Skurrie v TS Scaffolding Pty Ltd

[2022] FWC 2072

[2022] FWC 2072

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nigel Skurrie
v

TS Scaffolding Pty Ltd

(U2022/4441)

DEPUTY PRESIDENT COLMAN MELBOURNE, 5 AUGUST 2022

Unfair dismissal application – minimum employment period not met – application dismissed – apparent refusal to provide separation certificate – possible offence – referral

1. Mr Nigel Skurrie has made an application under s 394 of the Fair Work Act 2009 (FW Act). Mr Skurrie worked as a scaffolder for TS Scaffolding Pty Ltd (TSS). He was dismissed after leaving work to go to the doctor because he felt unwell. He contends that there was no valid reason for his dismissal and that it was unfair.

1. TSS did not file an F3 employer response. Neither Mr Skurrie nor TSS filed submissions or witness statements in accordance with the Commission’s directions. Prior to the proceedings, I reminded the parties that they were required to attend the determinative conference on 4 August 2022, and that s 600 of the FW Act allows the Commission to determine an application in the absence of a party that has been required to attend before it. The company failed to attend the proceeding. I will proceed to determine the application.

1. Mr Skurrie gave evidence that TSS was a business that provides labour to clients for the purpose of building and dismantling scaffolds. On 11 April 2022, Mr Skurrie sent a text message to his supervisor, Mr Tony Strojek, stating that he would not be coming to work the next day because he was ill. He then received a call from Mr Strojek, who told him that he was required to attend work and that he had taken too many days off. Mr Strojek later sent Mr Skurrie a text stating that if he did not come to work, the company would consider him to have terminated his own employment. Mr Skurrie returned to work on 13 April 2022, despite still feeling ill. He showed Mr Strojek medical certificates for 12 and 13 April, but Mr Strojek said that they were fraudulent. Mr Skurrie then spoke to the health and safety representative, who said that he should leave work. Mr Skurrie decided that he was too ill to work and left to go to the doctor. Shortly afterwards he received a text message from Mr Strojek stating that his employment had ended. Mr Skurrie was a credible witness and I accept his evidence.

1. Mr Skurrie contends that his dismissal was unfair because he left work on 13 April 2022 due to a genuine illness and had a medical certificate stating that he was not fit for work that day. He submits that there was no valid reason for his dismissal, and that he was not given a proper opportunity to respond to allegations. These are compelling arguments.

1. However, the FW Act requires that the Commission decide certain matters before considering the merits of an unfair dismissal application. One of these is the question of whether the applicant is a person who was ‘protected from unfair dismissal’. This expression is defined in s 382. Among its requirements is that the person have completed a period of employment that is at least the ‘minimum employment period’, which is 6 months, unless the employer is a ‘small business employer’, in which case the period is one year (s 383). Section 23 of the FW Act states that a small business employer is one that employs fewer that 15 employees at the relevant time. In calculating the number of employees, the applicant is to be included, as are employees of any associated entities of the employer. ‘Associated entity’ has the meaning prescribed by s 50AAA of the Corporations Act 2001 and includes related bodies corporate.

1. Mr Skurrie gave evidence that TSS employed two scaffolders and four or five labourers. He said that Mr Strojek was both the supervisor and manager, and that he was the company’s sole actor. He was not aware of any other persons employed by TSS. Based on Mr Skurrie’s evidence therefore, TSS had seven or eight employees. Mr Skurrie was not aware of TSS having any associated entities. Mr Skurrie said that he had previously worked for another scaffolding company with some forty employees, in which Mr Strojek was also a supervisor, but there is nothing to suggest that this was an associated entity of TSS. Based on the evidence before me, I conclude that at the time of Mr Skurrie’s dismissal, TSS was a small business employer within the meaning of s 23 of the FW Act.

1. The significance of this is that the minimum employment period that Mr Skurrie was required to serve with TSS in order to be able to bring an unfair dismissal application against it was one year. Mr Skurrie’s period of employment was some eleven months: he commenced working for the company on or about 24 May 2021 and was dismissed on 13 April 2022. Because Mr Skurrie has not served the minimum employment period, he was not a person who was ‘protected from unfair dismissal’ in his employment with TSS. This means that the Commission has no power to award him an unfair dismissal remedy (see s 390(1)(a)).

1. The company defied the Commission’s directions and generally ignored Mr Skurrie’s application. Had the company complied with the Commission’s directions and behaved decently, it could have alerted the Commission to its status as a small business employer for the purposes of the FW Act, thereby allowing the matter to be resolved at a much earlier stage, and saving all concerned, including Mr Skurrie and the Commission, time and effort. Mr Skurrie might have considered other legal avenues of redress. He may yet do so.

1. Finally, during a telephone mention conducted on 28 July 2022, Mr Skurrie said that TSS had refused to provide him with a separation certificate. At the hearing, Mr Skurrie said that he had still not received a certificate from TSS. It would appear that the company may have committed an offence against the Social Security (Administration) Act 1999 (SSA Act). Section 199 of the SSA Act states that if a person’s employment ceases, the person may request the former employer to provide an employment statement in the prescribed form. Section 200(1) states that if a person makes a request under s 199, the former employer ‘must comply with the request as soon as practicable’. The penalty for an offence against s 200(1) is imprisonment for a term not exceeding 12 months. I will advise the Commission’s General Manager of this matter so that he may consider whether to refer it to the relevant authorities.

1. I would add in this connection that it is not uncommon for workers to advise the Commission in the course of unfair dismissal and other proceedings that their requests for separation certificates have been ignored, with the consequence that it is difficult for them to obtain unemployment benefits. This conduct is completely unacceptable. One wonders whether the prospect of financial penalties for such conduct might prove to be more of a deterrent.

Conclusion

1. I have sympathy for Mr Skurrie. He has been treated badly by his former employer. However, Mr Skurrie was not a person protected from unfair dismissal because he had not served the minimum employment period of one year. The unfair dismissal application must therefore be dismissed.

DEPUTY PRESIDENT

Appearances:

N. Skurrie for himself
No appearance for the respondent

Hearing details:

2022
Melbourne
4 August

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