Petria Stewart v LPN Childcare Pty Ltd ATF Liesl Pyke-Nott Family Trust T/A Sandcastles Early Education Centre
[2015] FWC 4435
•8 JULY 2015
| [2015] FWC 4435 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Petria Stewart
v
LPN Childcare Pty Ltd ATF Liesl Pyke-Nott Family Trust T/A Sandcastles Early Education Centre
(U2015/3528)
COMMISSIONER MCKENNA | SYDNEY, 8 JULY 2015 |
Application for relief from unfair dismissal.
[1] Petria Stewart (“the applicant”) has filed an application, made pursuant to s.394 of the Fair Work Act 2009 (“the Act”), in which the applicant alleges her dismissal by LPN Childcare Pty Ltd ATF Liesl Pyke-Nott Family Trust T/A Sandcastles Early Education Centre (“the respondent”) was harsh, unjust or unreasonable. The respondent has raised a jurisdictional objection to the application. The consideration of that threshold matter is the subject of this decision, given the particular contested factual circumstances that have arisen between the parties in such respects.
[2] It is relevant to outline some background matters. The applicant commenced employment at the early education centre in September 2009. On 30 January 2015, the business changed hands. The respondent, as the new proprietor following the purchase of the business from the old employer, took-over the early education centre’s operations. In connection with that transaction, the former owner terminated all employees’ employment and paid-out to the applicant (and other employees) her accrued annual leave entitlements; arrangements were otherwise made between the old employer and the respondent concerning financial consideration in the sale transaction with respect to 50 per cent of employees’ accrued personal/carer’s leave. The applicant commenced working for the respondent on 2 February 2015, with the applicant and a representative of the respondent having signed a contract of employment. Among other matters, the employment contract contained a clause concerning a probationary period. By letter dated 6 February 2015, the respondent dismissed the applicant. The circumstances of the dismissal are not presently relevant to the threshold issue.
[3] In its Form F3 (Employer Response to Unfair Dismissal Application), the respondent objected to the application on the basis the applicant’s employment did not meet the minimum employment period. Among other matters, the Form F3 indicated that no employment-related entitlements were transferred in connection with the sale of the business; and that all such entitlements had been paid to the applicant on 30 January 2015 by the previous owner.
[4] The application has previously been allocated to other members of the Commission. What follows are some selected matters, based on records within the file.
[5] By emailed correspondence dated 17 March 2015, the Associate to Gooley DP wrote to Liesl Pyke-Nott of the respondent in the following terms:
“In your response to Ms Stewart’s application for an unfair dismissal remedy, you stated that Ms Stewart commenced employment on 2 February 2015. You objected to the application on the basis that Ms Stewart had not met the minimum employment period.
Section 383 of the Fair Work Act 2009 defines the minimum employment period 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.
Section 384 of the Act defines a period of employment as follows:
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.
Ms Stewart alleges she commenced employment in September 2009 and that there has been a transfer of business and employment.
Please provide by noon on 24 March 2015 a copy of any written advice you provided to Ms Stewart prior to the new employment starting, that the period of employment with the old employer would not be recognised.”
[6] In response to the Commission correspondence, Ms Pyke-Nott advised as follows in an emailed communication dated 24 March 2015:
“On Thursday 22 January 2015 a meeting was held at Sandcastles Early Education Centre with Jen Morrin (Outgoing employer), Liesl Pyke-Nott (New employer) and Petria Stewart at Sandcastles Early Education Centre [address].
Petria Stewart was informed of the sale of the business and that previous service would not be recognized by new employer and entitlements were to be paid by outgoing employer on 30th January 2015.
As per Clause 10(B) of the sale contract, the Seller - Jen Morrin - was required to terminate existing employees employment and pay all wages, annual leave and any other entitlements directly to employees on termination dated 30th January 2015. (Attached Fair Work Fact sheet)
Petria Stewart was offered a new employment contract on 22 January 2015 (Attached) (service of employment with old employer Jen Morrin would not be recognized) to review as well as a letter requesting information before commencement of new employment. No entitlements were recognized by new employer Sandcastles Early Education Centre. Petria Stewart had to provide information by 23rd January 2015 and had 8 days to review new employment contract.
Petria Stewart signed and dated new employment agreement on Monday 2nd February 2015, Petria Stewart had 8 days to review and accept the offer of new employment with a three month probation period and one weeks notice to terminate the contract.
The terms and conditions of the new contract was Part Time Minimum 15 hours a week. Page 8 of employment agreement states “I have read, understood and accept the offer of the employment under the above terms and conditions. I confirm acceptance of the terms and conditions by signing this agreement. I have been given an opportunity to seek independent advise concerning this agreement prior to signing”.
Petria Stewart’s contract was terminated on Friday 6th February 2015. One weeks notice was paid as per section 2 page 1 of attached employment contract.” (Sic)
[7] The employment contract between the parties does not contain any provision to the effect that a period of service with the old employer would not be recognised. Ms Pyke-Nott’s correspondence of 24 March 2015 in response to the Commission’s correspondence of 17 March 2015 did not otherwise address or attach a copy of any written advice provided to the applicant prior to the new employment advising that the period of employment with the old employer would not be recognised – being the written advice referred to in the correspondence from the Associate to Gooley DP which relevantly requested:
“Please provide by noon on 24 March 2015 a copy of any written advice you provided to Ms Stewart prior to the new employment starting, that the period of employment with the old employer would not be recognised.”
[8] The file was subsequently reallocated to me on 2 April 2015, whereupon the matter was listed for a Mention and/or Conference by telephone on 9 April 2015. In that proceeding, the applicant was represented by Haren Pararajasingham of United Voice, and Richard Pyke-Nott together with Ms Pyke-Nott appeared for the respondent. The proceeding was recorded. The outcome of the proceeding before me on 9 April 2015 was noted, in short form, on the file cover and in the Commission’s data base records as follows:
“Respondent’s representative confirmed jurisdictional objection not pressed/withdrawn as respondent did not provide s.384(2)(b)(iii) information in writing. File remitted to [Unfair Dismissals Case Management Team] for a telephone conciliation listing (as none had previously been held).”
[9] The file record indicates that a telephone conciliation was listed before a Fair Work Commission conciliator on 27 April 2015, but without settlement. The matter was allocated to Drake SDP for a period of time, and there are file records of certain communications and materials including those concerning jurisdictional matters related to small business status. A file note dated 19 May 2015 indicated that a Commission staff member had a telephone conversation with a representative of the respondent in which he advised that the respondent wished to press the “MEP – small business issue”. The file records of various telephone and written communications indicate, shortly stated, there was a contested factual dispute between the parties concerning the threshold jurisdictional issue.
[10] The matter was reallocated to me for a second time, on 20 May 2015. Upon the relisting of the matter, I sought to ascertain what had occurred since the initial listing before me on 9 April 2015 when the respondent’s representative, Mr Pyke-Nott, had advised that the jurisdictional objection was not pressed given the concession that no written information within the meaning of s.384(2)(b)(iii) of the Act had been provided to the applicant. In a proceeding on 28 May 2015, Mr Pyke-Nott submitted: “Commissioner, just to recap, at that hearing [on 9 April 2015] that document was not available – at that particular hearing. It's not that it was not provided. We obviously insist that that document was provided and to date I have further information that might support that that document was supplied at the time or provided to her. … I’m not sure how it came about, Commissioner, at the time, but once I was re-contacted through Fair Work again and indicated – well they wanted to understand where we were going forward and, since that particular stage, we’ve obviously come across further information which would support that that document was supplied. We’re really at the position where we wanted to reopen that objection that that document was in fact provided.” Following further telephone listings before me and endeavours to see if a settlement could be reached, directions were issued given the contested factual matter of whether the applicant had been given written information within the meaning of s.384(2)(b)(iii) of the Act.
[11] The respondent filed documents which included a statement by Ms Pyke-Nott, together with the statements of Rachel Arthur and Jacqueline Taylor (employees of the respondent), and other supporting materials. Ms Pyke-Nott’s statement read:
“I confirm that attached document (Letter not recognising previous employment and entitlements) was given to Mrs Stewart on Thursday 22 January 2015.
I confirm that an email was received (see attached email dated Thursday 29 January 2015) by Mrs Stewart querying entitlements. On Monday 2nd February 2015 first day of new employment the nominated supervisor, Mrs Taylor, held a meeting to discussed [sic] and review job description, employment agreement and letter not recognising prior employment. (attached statement from Mrs Taylor)
Also attached a statement from employee, Miss Arthur, employed on same day as Mrs Stewart confirming letter not recognizing prior employment was issued.”
[12] The document referred to in Ms Pyke-Nott’s statement and described as the letter “not recognising previous employment and entitlements” (“the service letter”) read as follows:
“LPN Childcare Pty Ltd
t/as Sandcastles Early Education Centre
[address]
Dear Petria
All entitlements and service with your previous employer will not be carried over to your new employment as of 02/02/2015 with LPN Childcare Pty Ltd
Kind Regards
Liesl Pyke-Nott
Approved Provider
[signature]”
[13] United Voice, on behalf of the applicant, filed an outline of submissions together with statements of the applicant, Thomas Craven (Member Support Adviser – United Voice) and Madison Maher (a former employee of the respondent). The key matters relied upon from the evidence adduced by the applicant were set out in the submissions as follows:
“4. As such, in this matter, the Fair Work Commission is required to make a factual determination as to whether the Respondent provided such a written document to the Applicant prior to the date of commencement, 2 February 2015.
5. The Applicant submits that she was never provided with the document marked PET5 or anything of similar substance.
6. The Applicant also submits the following:
a. A representative of the Respondent, Ms Liesel [sic] Pyke-Nott, confirmed to the Applicant’s Union on 9 February that no such written documentation was provided to the Applicant (see Statement of Tom Craven at [8]);
b. On 12 and 13 February 2015, Ms Pyke-Nott provided to the Applicant’s Union all documentation that was given to the Applicant before and during her employment. The correspondence marked PET5or anything of similar substance was not included in this documentation (see Statement of Tom Craven at [10]-[11]);
c. During the Phone Mention and/or Conference listed before Commissioner McKenna on 9 April 2015, the Respondent acknowledged that at no stage was a written document provided to the Applicant. The Respondent agreed to withdraw its objection and the matter proceeded to Conciliation on 27 April 2015 (see Statement of Petria Stewart at [9]); and
d. The Applicant’s former colleague, Ms Madison Maher, also notes that she did not receive the written document or anything of similar substance before or during her employment with the Respondent (see Statement of Madison Maher at [6]-[7]).
7. On these grounds the Applicant submits that she was not provided with the relevant written documentation and that therefore the Respondent’s jurisdictional objection should be dismissed.”
[14] On 1 July 2015, United Voice filed further materials, albeit outside the directions already given, comprising various documentary materials.
[15] The matter proceeded by videolink on 2 July 2015. Each of the persons who had provided statements gave evidence and there was cross-examination.
Consideration
[16] The pivotal issue in relation to the respondent’s jurisdictional objection to the application is whether it informed the applicant in writing before the new employment started that a period of service with the old employer would not be recognised. That is because of the provisions of the Act which read 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.
(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.”
[17] Relevant parts of the evidence before the Commission as to whether the respondent informed the applicant in writing before the new employment started that a period of service with the old employer would not be recognised were in sharp dispute.
[18] As to the provision of the service letter, Ms Pyke-Nott confirmed the letter was given to the applicant on 22 January 2015. The respondent also adduced evidence from Ms Taylor, who indicated that on 2 February 2015 she and the applicant went through the employment contract, job description and the service letter; and the applicant then signed the employment contract. Ms Arthur gave evidence to like effect and also indicated she personally received a letter in terms equivalent to the service letter relied upon by the respondent concerning the applicant. The effect of the evidence and submissions for the respondent in support of its jurisdictional objection is that the service letter was provided to the applicant and, further, that the letter was also provided to other employees (and that the fact of the existence of the service letter and its provision to the applicant on 22 January 2015 had come to light only in comparatively recent times).
[19] The evidence adduced in the applicant’s case was that the applicant had not, at any stage, been given any information in writing before the new employment started that a period of service with the old employer would not be recognised. In that regard, the applicant’s case relied on the evidence of the applicant’s own denial of having received the service letter. The applicant’s evidence was that the first time she had seen the service letter was on 29 May 2015 (after the respondent had provided a copy to United Voice, following agreement to do so during Commission proceedings). Evidence was adduced from Ms Maher, who indicated that, for her own part, she had not been advised at any stage in writing that her service with the old employer was not being carried over in connection with her own employment by the respondent. Mr Craven’s evidence (attaching certain date-coded, computerised records of his notes of communications concerning the applicant which recorded there had been a telephone conversation on 9 February 2015) was that Ms Pyke-Nott conceded the respondent did not provide the applicant with a letter indicating that service with the old employer would not count. Mr Craven otherwise requested copies of all documentation that the respondent had provided to the applicant. It is common ground the documentation provided by Ms Pyke-Nott to Mr Craven did not include a copy of the service letter.
[20] The effect of the evidence and submissions for the applicant is that the service letter was not, at a relevant time, provided to the applicant and nor was any similar letter provided to at least one other (former) employee of the respondent. Other matters relied upon by the applicant included the matters referred to in the evidence of Mr Craven as to telephone communications and emailed communication of documents concerning the applicant in early-February 2015; that the materials and/or submissions provided by the respondent to the Associate to Gooley DP on 24 March 2015 did not include “a copy of any written advice you provided to Ms Stewart prior to the new employment starting, that the period of employment with the old employer would not be recognised”; and that in the initial proceeding before me on 9 April 2015 the respondent withdrew the jurisdictional objection on the basis of the concession that no information in writing had been provided.
[21] While the witnesses’ evidence is in conflict as to matters of central relevance, I am satisfied, on the balance of probabilities, the respondent did not provide the service letter to the applicant on 22 January 2015 or otherwise before the new employment started. If the service letter had been provided to the applicant on 22 January 2015, it seems unlikely Ms Pyke-Nott would have stated to Mr Craven that such a letter had not been provided to the applicant (as otherwise recorded in Mr Craven’s contemporaneous, dated-coded notes). Further, or in the alternative, it seems unlikely the service letter would not have been emailed by Ms Pyke-Nott to Mr Craven together with all the other employment-related documentation that was sent to him around that time. Even if, for example, Mr Craven’s notes were partially-inaccurate or Ms Pyke-Nott misunderstood what documentation had been requested by Mr Craven, it also seems unlikely the service letter would not have been provided by the respondent to Gooley DP given the specific nature of the information requested by the Commission in that respect, namely, “a copy of any written advice you provided to Ms Stewart prior to the new employment starting, that the period of employment with the old employer would not be recognised.” Even if the respondent did not provide the service letter to Gooley DP in the materials filed on 24 March 2015 in support of its jurisdictional objection, it again seems unlikely the respondent would have conceded in the proceeding before me on 9 April 2015 that the relevant information had not been provided in writing. Lastly, while it is common ground the old employer terminated all employees’ employment and paid-out accrued annual leave entitlements, and there was evidence as to an emailed communication from the applicant to the respondent with a query about leave entitlements, there was also evidence of an emailed communication between legal representatives involved in the sale of the business concerning financial consideration between the old employer and the respondent in relation to personal/carer’s leave accruals; and this communication between lawyers tends to weigh against the suggestion that the service letter was provided, given the service letter was said to advise the applicant that no entitlements or service would be carried-over to the employment with the respondent.
[22] All things considered, I accept the applicant’s evidence the respondent did not provide the service letter to her on 22 January 2015 and, to the extent necessary, prefer such evidence to that which contended to the contrary.
[23] The respondent’s jurisdictional objection is dismissed (see Hillie v World Square Pub [2012] FWA 6806; Hill v Sahir T/A Café Moderno at Fountain Gate [2013] FWC 668).
[24] This matter was allocated to me as a New South Wales jurisdictional matter and, following the initial telephone proceedings, the comparatively short jurisdictional hearing was conducted by videolink. I note the Conciliator’s Report dated 27 April 2015 recorded the parties’ future processing preferences (that is, preferences in relation to the hearing of the substantive application as to whether the dismissal was harsh, unjust or unreasonable) was for a Queensland location, together with their respective time estimates of two-to-three days. Noting the parties’ preferences as recorded in the Conciliator’s Report, the file will be remitted to the Unfair Dismissals Case Management Team for directions for a hearing in Queensland.
COMMISSIONER
Appearances:
H. Pararajasingham of United Voice for the applicant.
R. Pyke-Nott for the respondent.
Hearing details:
2015.
Sydney/Lismore via videolink;
July, 2.
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