Paul Hartshorne v Superpartners Pty Ltd
[2012] FWA 9119
•25 OCTOBER 2012
[2012] FWA 9119 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Paul Hartshorne
v
Superpartners Pty Ltd
(U2012/13014)
COMMISSIONER RYAN | MELBOURNE, 25 OCTOBER 2012 |
Termination of employment - minimum employment period.
[1] An application for an unfair dismissal remedy was made by Mr Hartshorne on 6 September 2012. Superpartners Pty Ltd filed an Employer Response (Form F3) on 10 October 2012 in which the employer raised two jurisdictional challenges to the application as follows:
“1. The employee was not employed for a period of 6 months.
2. The employee did not lodge the application for unfair dismissal remedy within the required 14 day period.”
[2] The matter was listed for hearing on 24 October 2012 to deal with the two jurisdictional challenges.
[3] On 18 October 2012 I wrote to Mr Hartshorne in relation to the first jurisdictional challenge. I did so because Mr Hartshorne’s application for unfair dismissal remedy identified that his period of employment with Superpartners Pty Ltd was from 3 January 2012 to 30 May 2012 a period clearly less than 6 months. The letter to Mr Hartshorne was in the following terms:
“Your application for an unfair dismissal remedy has been listed for hearing in relation to a jurisdictional matter at 10.00 am (Eastern Summer Time) on 24 October 2012. The question to be determined at that hearing is: Have you been employed for the minimum employment period by the Respondent?
The Fair Work Act contains limits in relation to the persons who can apply for an unfair dismissal remedy.
Sections 382, 383 and 384 are relevant to the matter to be determined next week.
Division 2—Protection from unfair dismissal
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.
Note: High income threshold indexed to $123,300 from 1 July 2012
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.”
The combined effect of s.382(a) and s.383 is that, at the very least, you must have been employed by the Respondent for a period of at least 6 months in order to be entitled to make an application for an unfair dismissal remedy.
The provisions of s.382, 383 and 384 constitute a deliberate decision by Parliament to limit access to unfair dismissal remedies. The Explanatory Memorandum to the Fair Work Bill contains the following explanation in relation to the above sections.
Division 2 – Protection from unfair dismissal
1510. This Division sets out when a person may be entitled to a remedy for unfair dismissal.
Clause 382 – When a person is protected from unfair dismissal
1511. This clause outlines the situations when a person may be entitled to an unfair dismissal remedy. It does this by providing a definition of when a person is protected from unfair dismissal – this expression is subsequently used in clause 390 to set out when FWA may order a remedy for unfair dismissal.
1512. Paragraph 382(a) provides that a person must have completed a minimum employment period with his or her employer. A requirement that an employee serve a minimum period before having access to an unfair dismissal remedy enables an employer to have a period of time to assess the capacity and conduct of a new employee without being subject to an unfair dismissal claim if they dismiss the employee during this period.
1513. Paragraph 382(b) provides that a person will be protected from unfair dismissal if they are covered by a modern award or if an enterprise agreement applies to their employment. If neither of these criteria applies, a person will only be able to bring an unfair dismissal claim if their remuneration is less than the high income threshold.
1514. The high income threshold is defined in clause 333 as an amount prescribed by regulations and will be $100,000 as indexed from 27 August 2007. A person has remuneration in excess of the high income threshold if their annual rate of earnings, plus any other amounts as prescribed under the regulations exceed the amount of the threshold. The person‘s earnings will be assessed in accordance with the definition in clause 332.
Clause 383 – Minimum employment period
1515. This clause sets out what is the minimum employment period. It is one year for employees of a small business and six months for all other employees. Whether an employee has served the minimum employment period is assessed either when the person is given notice of dismissal, or when the dismissal actually takes effect, whichever happens first. Clause 383 relies on the definition of small business employer in clause 23 when determining the length of the minimum employment period applying to employees in a particular business.
1516. Under subclause 23(1), an employer is a small business employer if the employer employs fewer than 15 employees. All employees employed by the employer will be counted, including all casual employees who have been employed on a regular and systematic basis and employees employed by associated entities (as defined in clause 12).
Clause 384 – Period of employment
1517. This clause outlines when an employee‘s service counts towards the minimum employment period.
1518. An employee‘s period of employment is defined as the period of continuous service the employee has completed with the employer. Service as a casual employee does not count towards the period of employment unless it was on a regular and systematic basis and the employee had a reasonable expectation of continuing engagement on a regular and systematic basis.
1519. What constitutes continuous service is defined in clause 22. According to that definition, the following periods are excluded periods and do not count towards the period of employment:
any period of unauthorised absence;
any period of unpaid leave or unpaid authorised absence other than community service leave, a period of stand down under Part 3-5 or a period of leave or absence of a kind prescribed in the regulations.
1520. Any excluded period does not break continuous service but does not count towards the length of the employee‘s continuous service.
Importantly Parliament did not provide any discretion to Fair Work Australia to waive compliance with the minimum employment period. This means that an employee who has not served the minimum employment period will not be able to make an application for an unfair dismissal remedy.
Your application filed with Fair Work Australia on 6 September 2012 indicates that you commenced employment with the Respondent on 3 January 2012 and were dismissed on 30 May 2012. The period of employment, on the basis of the information supplied by you, is only 5 months. I note that the Respondent filed an Employer’s Response to Application for Unfair Dismissal Remedy in which the Respondent identifies the same commencement and dismissal dates.
If the information supplied by you in your application is wrong and if you believe that you have served the minimum employment period of at least 6 months then you will need to provide such information to FWA. However if the information supplied by you is correct and you had not served the minimum employment period then I would be required to dismiss your application. You are of course entitled to discontinue this application at any time.
[4] At the hearing on 24 October I asked Mr Hartshorne if the information supplied by him in his application as to the period of employment was correct. Mr Hartshorne advised the Tribunal that the information was correct, namely that his period of employment with Superpartners Pty Ltd was from 3 January 2012 until 30 May 2012.
[5] I advised the parties to the proceedings that as Mr Hartshorne had not served the minimum employment period specified in s.383(a) of the Act then the application would be dismissed.
[6] The application is dismissed.
COMMISSIONER
Appearances:
P. Harshorne on his own behalf
M. Harmer for Superpartners Pty Ltd
Hearing details:
Melbourne
2012
24 October
Printed by authority of the Commonwealth Government Printer
<Price code A, PR530622>
0
0
0