Robert Braddock v Insulcorp Pty Limited T/A Battmans Insulation

[2021] FWC 475

[2021] FWC 475

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Braddock
v
Insulcorp Pty Limited T/A Battmans Insulation
(U2020/15900)

COMMISSIONER WILSON MELBOURNE, 5 FEBRUARY 2021

Termination of employment - jurisdiction - small business employer - minimum employment period - minimum period not met.

[1] Following are my reasons for decision in a matter heard by me on Thursday, 4 February 2021. At the conclusion of the hearing I advised the parties of my decision, and indicated to them that before publishing my decision I may edit what was said, or elaborate on certain matters where that was required and in particular providing more detail about legislation or the cases to which I may refer.

[2] By way of an application to the Fair Work Commission dated 12 December 2020, Robert Braddock seeks an unfair dismissal remedy in relation to his dismissal by Insulcorp Pty Limited T/A Battmans Insulation, which I will refer to from this point as Battmans.

[3] In its Form F3 - Employer’s Response Form (and the Form F4 – Unfair Dismissal Application Objections) Battmans stated that at the time of Mr Braddock’s dismissal it had a total of 14 employees and he had not served the minimum employment period of one year required to make this application.

[4] There is some uncertainty about the date on which Mr Braddock’s dismissal was communicated and took effect. While Mr Braddock’s application form refers to those dates as both being 27 November 2020, his evidence is that the date was actually 4 December 2020. For its part Battmans puts forward in its Form F3 that the dates were both 25 November 2020 and in its written submissions both 27 November 2020. Having heard the evidence given by both, I prefer Mr Kaye’s evidence that the date on which notice of termination was given was 27 November 2020, which was also its date of effect. The reason I prefer Mr Kaye’s evidence is that the company’s final payslip, with the pay paid on 2 December 2020, states at the bottom “Ceased employment: 27 Nov 2020”. 1

[5] Determination of Battmans’ objection requires consideration of two matters; what was the length of Mr Braddock’s continuous service, and was Battmans at the time of his dismissal a small business within the meaning of the Act? Determination of Battmans’ small business status will then determine the length of the applicable minimum employment period. If Battmans is a small business as defined by the Act, Mr Braddock will not be eligible to make an unfair dismissal application unless he had served a period of continuous service of not less than 12 months. If Battmans is not a small business, the applicable minimum employment period is 6 months.

[6] The parties agree that Mr Braddock initially worked for the Respondent from July 2018 until December 2019 when he resigned his position to move interstate. 2 Mr Braddock related in his evidence that he finished with Battmans in late 2019 in order to follow his then partner to Queensland. He accepted that this was intended at the time to be a permanent departure. Mr Braddock then resumed working for Battmans for a short period of approximately 3 weeks at the end of March 2020, and then returning on a full-time basis on 24 April 2020 as a warehouse assistant/driver.

[7] The Respondent’s submission on these subjects confirmed Mr Braddock commenced his employment with the Respondent in July 2018 and ceased his employment in December 2019. The submissions contended that since there was a break in employment between December 2019 and April 2020 that Mr Braddock has not completed the minimum employment period. 3 Battmans submitted Mr Braddock was dismissed with immediate effect on 27 November 2020 for negatively commenting on more than one occasion to other employees and customers about the way the business was being run.4

[8] After his dismissal Mr Braddock received one weeks’ pay in lieu of notice, the payment of accrued annual leave and leave loading and a severance payment. 5

[9] As a result of the Respondent’s objections, Directions were issued by the Commission on 5 January 2021 and were amended on 19 January 2021 for the filing of material on the jurisdictional objection. The Applicant filed a witness statement, and the Respondent filed an outline of argument, a witness statement and documents in support of their objection and some further payroll documents were filed by Battmans in the days before the hearing as a result of a request from me.

[10] At the hearing of Battmans’ jurisdictional objections on 4 February 2021, Mr Braddock appeared and gave evidence for himself. Mr Rodney Kaye, the Director of the company, appeared and gave evidence for the company.

[11] In making my decision on this matter I need to take into account several parts of the Fair Work Act 2009.

[12] Section 382 of the Act requires that for a person to be protected from unfair dismissal they have completed a period of employment with their employer of at least the minimum employment period:

“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.”

[13] Section 383 of the Act, set out below, prescribes that if the employee’s employer is a small business the minimum employment period is one year:

“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.”

[14] Section 384 of the Act is concerned with how an employee’s period of employment is calculated for the purpose of determining if the employee has satisfied the minimum employment period. The relevant part reads:

“[Meaning of period of employment]

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.”

[15] The starting point is that a period of employment is also referred to as a period of continuous service.

[16] Accordingly, the minimum employment period is assessed on the basis of “continuous service” and that term is defined in s.22 of the Act to take into account the impact of certain excluded periods. Importantly, a period of service is a period during which the employee is employed by the employer:

“22 Meanings of service and continuous service

General meaning

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(2) The following periods do not count as service

(a) any period of unauthorised absence;

(b) any period of unpaid leave or unpaid unauthorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind described by the regulations.

(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.

(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies. If they do so, subsection (3) applies accordingly.”

[17] Section 22(1) of the Acts Interpretation Act 1901 includes:

“In any Act, unless the contrary intention appears:

...

(b) `Month' shall mean calendar month;

...

(g) Calendar month' means a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month.”

[18] A period of continuous service can be made up of a series of periods of service. 6 An employee may have a series of contiguous periods of service with an employer that may count towards a single period of employment (period of continuous service) with that employer.7 The Commission’s approach to consideration of continuous service featured with breaks in service such as in the case of a casual employee, is that “[c]ontinuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements.”8 I note that Mr Braddock was not a casual employee, but instead was a full-time employee. I refer to these matters since it might be said that somehow Mr Braddock’s 2018 and 2019 service should be regarded as contiguous with his 2020 service and thus included for the purposes of ascertainment of his period of continuous service. The evidence plainly does not take me in such a direction since it is very clear that when he left Battmans in 2019 it was intended to be a permanent departure, without the prospect of further engagements.

[19] Further it must be noted that s.23 defines a small business employer as being one which at a particular time employs fewer than 15 employees at that time. In the context of this case, the reference to the “particular time” is the time at which Mr Braddock was dismissed: 9

“Meaning of small business employer

(1)  A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2)  For the purpose of calculating the number of employees employed by the employer at a particular time:

(a)  subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b)  a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

(3)  For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4)  To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee's employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a)  the employee who is being dismissed or whose employment is being terminated; and

(b)  any other employee of the employer who is also being dismissed or whose employment is also being terminated.”

[20] Mr Kaye gave evidence that at the time of Mr Braddock’s dismissal the company employed 14 employees, including Mr Braddock. Mr Kaye also said that the company did not have any associated entities. 10 That evidence included Westpac Pay Summaries showing payments made by Battmans to all people it employed for the payment dates 25 November 2020 and 2 December 2020. Each shows the names of 14 employees, including Mr Braddock. Pertinent to the fact that Mr Kaye’s name does not appear on these lists, Mr Kaye gave evidence that he is a Director of Insulcorp Pty Ltd and has never been an employee. Mr Braddock did not contest Mr Kaye’s evidence about these matters, and I accept it.

[21] In this case the Applicant has not contested the Respondent’s assertion that it is a small business and so I am satisfied the Respondent is a small business employer. Consequently, the minimum employment period applicable to Mr Braddock is one year.

[22] Both parties agree the date the Applicant began working for the Respondent in his second period of employment was 24 April 2020, or at the earliest, mid-to-late March 2020 if the initial 3-week engagement was to be included. I am satisfied that the first period of Mr Braddock’s employment is not to be counted in calculating the minimum employment period as Mr Braddock resigned his employment and there was a break of some four months between the two periods.

[23] The date of Mr Braddock’s dismissal for his second period of employment was 27 November 2020. Based on the effective date of dismissal the Applicant has not completed the minimum employment period of one year. When he was dismissed he had been employed for just over 7 months from the date employment resumed on 24 April 2020, or at best for him, perhaps just under 8 months if the mid-to-late March 2020 period were to be included as well (with the evidence leaning toward its inclusion, since it appears a permanent engagement in the near future was expected when Mr Braddock concluded the mid-to-late March short-term engagement).

[24] Mr Braddock has not completed the prerequisite minimum employment period and so is not able to make this application.

[25] I uphold the Respondent’s objection and dismiss this application for want of jurisdiction.

COMMISSIONER

Appearances:

Mr R. Braddock on his own behalf

Mr R. Kaye for the Respondent

Hearing details:

2021.
Melbourne via telephone;
4 February.

Printed by authority of the Commonwealth Government Printer

<PR726552>

 1   Exhibit R3, Respondent’s Document List, payslip dated 2 December 2020, 21 January 2021.

 2   Exhibit A1, Witness Statement of Robert Braddock, 25 January 2021; Exhibit R1, Respondent’s Outline of Argument: Jurisdictional Objections, 21 January 2021, item 2k.

 3   Exhibit R1, Respondent’s Outline of Argument: Jurisdictional Objections, 21 January 2021, item 2k with reference to Tebble v Rizmas Pty Ltd[2011] FWA 6853.

 4   Form F3 Employers Response Form, 21 December 2020, item 3.1.

 5   Exhibit R3, Respondent’s Document List, payslip dated 2 December 2020, 21 January 2021.

 6   Wayne Shortland v The Smiths Snackfood Co Ltd[2010] FWAFB 5709.

 7   Ibid.

 8   Ibid, [13].

 9   Heydon v The Highgate Group Pty Limited[2017] FWC 6151, [21].

 10   Exhibit R1, Respondent’s Outline of Argument: Jurisdictional Objections, 21 January 2021, item 2v.