Scott Collins v Canberra Aluminium Centre Pty Ltd

[2014] FWC 4349

[2014] FWC 4349 [Note: An appeal pursuant to s.604 (C2014/5252) was lodged against this decision - refer to Full Bench decision dated 25 September 2014 [[2014] FWCFB 6733] for result of appeal.]

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Scott Collins
v
Canberra Aluminium Centre Pty Ltd
(U2014/7183)

COMMISSIONER DEEGAN CANBERRA, 3 JULY 2014

Application for relief from unfair dismissal.

[1] On 23 April 2014 Mr Scott Collins (the applicant) lodged an application under s.394 of the Fair Work Act 2009, claiming that the dismissal from his employment with Canberra Aluminium Centre Pty Ltd (the respondent) was unfair. On 12 June 2014 I delivered a decision in transcript dismissing the applicant’s application. These are the written reasons for that decision.

Background

[2] The applicant commenced his employment with the respondent in August 2013. The applicant was dismissed on 31 March 2014. He sent an application form previously used by the Australian Industrial Relations Commission (AIRC), by post to the Canberra Registry of the Fair Work Commission (Commission). The form was titled ‘Application for Relief in Relation to Termination of Employment’ and was received by the Registry on 23 April 2014. Correspondence from the Registry was sent to the applicant’s postal address requesting that the applicant re-lodge his application utilising a Form F2. The completed F2 was received in the Canberra Registry on 13 May 2014.

[3] The matter was listed for an extension of time hearing to determine whether further time should be allowed for lodgement of the application. Directions were issued on 27 May requiring the applicant and respondent to lodge an outline of submissions and any witness statements relevant to the extension of time issue. Later that day the respondent filed a Form F3 (Employer Response) to the application. While the respondent did not indicate an objection to the jurisdiction of the Commission on the basis that the employee had not served the minimum employment period, the respondent indicated that there were 13 employees engaged by the respondent at the time the applicant was dismissed and that the applicant had been employed for 7 months. The respondent was advised prior to the hearing that the number of employees and the applicant’s tenure with the business would be relevant to whether or not the Commission had jurisdiction to deal with the application.

[4] At the hearing that took place on 12 June, the applicant was self-represented. Ms Layton appeared on behalf of the respondent. Ms Layton amended the information contained in the F3 to advise that there were 14 employees employed by the respondent and its associated entity immediately before the applicant was dismissed and gave evidence to support this contention.

[5] According to Ms Layton the associated entity of the respondent is a company called Alucom Pty Limited (Alucom), which focuses on the administration of the respondent. While Alucom is run separately to the respondent, it is owned by the same person, who makes decisions that affect both companies. Ms Layton claimed that at the time the applicant was dismissed that Alucom had eight employees and the respondent had six. In support of this claim, Ms Layton presented a wages declaration for workers compensation for the year ending 31 March 2014, and stated that three employees identified in the declaration were not employed by the Alucom as at 31 March, as they had left Alucom. She noted that a number of subcontractors, and an individual employed by Regional Training, also worked for the respondent.

[6] Under cross examination by the applicant Ms Layton indicated that the companies only cover employees for workers compensation and that the subcontractors look after their own insurance.

[7] The applicant also gave evidence at the hearing. He claimed that someone that had previously agreed to give evidence had then subsequently indicated that they wanted nothing to do with the hearing. He stated that he did not have any evidence to dispute the number of employees that the respondent claimed to have employed, and was unsure whether he would be able to get any evidence. The applicant was asked on a number of occasions whether he would like additional time to obtain such evidence, and repeatedly indicated that he did not want more time.

[8] The applicant called Mr Adam Kibblewhite to give evidence. Mr Kibblewhite indicated that it was his belief that there was another employee not listed on the declaration, called Alan, but could not recall his last name. According to Mr Kibblewhite the basis for his belief was a conversation that he had, where Alan told him he had moved to casual.

[9] The legislation relevantly provides:

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 $129,300 from 1 July 2013

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.

[10] Mr Kibblewhite’s evidence is not sufficient to satisfy me that the evidence given by Ms Layton is not credible. I found Ms Layton to be a witness of truth who answered the questions directly and with conviction. She provided documentary evidence to support her contention that the respondent employed less than 15 employees, and there was no evidence put by the applicant presented any real challenge to Ms Layton’s claims.

[11] On the basis of the evidence before me, I am satisfied that the respondent was a small business, and the applicant had not served the minimum employment period immediately before his dismissal. As the applicant had not completed the minimum employment period and is not a person protected from unfair dismissal, his application is dismissed. Given the lack of jurisdiction is not necessary for me to deal with the question of whether further time should be allowed for lodgement of the application.

Appearances:

The applicant in person.

Ms K Layton for the respondent.

Hearing details:

2014.

Canberra:

June 12.

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