Scott Hillebrand v DLF Racing Services Pty. Ltd
[2023] FWC 270
•31 JANUARY 2023
| [2023] FWC 270 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Scott Hillebrand
v
DLF Racing Services Pty. Ltd.
(U2022/11328)
| DEPUTY PRESIDENT LAKE | BRISBANE, 31 JANUARY 2023 |
Application for an unfair dismissal remedy – jurisdictional objection – minimum employment period – Small Business Fair Dismissal Code – application dismissed.
This decision concerns an application by Mr Scott Hillebrand (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant seeks a remedy, claiming that his dismissal from his employment with DLF Racing Services Pty Ltd (the Respondent) was harsh, unjust, and unreasonable. The Applicant asserts his employment with the Respondent commenced on 1 June 2021, and his employment was terminated on 25 November 2022.
The Respondent raised jurisdictional objections on the following grounds:
the Applicant did not meet the minimum employment period as he had a period of non-continuous service; and
the Respondent is a small business employer and it complied with the Small Business Fair Dismissal Code.
The matter was allocated to my chambers, and I held a hearing addressing the jurisdictional objections on the grounds that the Applicant has not met the minimum employment period and the Respondent’s contention that they are a small business employer and complied with the Small Business Fair Dismissal Code. This decision deals with those matters only.
Legislation
Section 382 of the Act 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.”
The meaning of “minimum employment period” is relevantly provided at s.383 of the Act 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.”
Continuous service is defined at s.22 of the Act:
“22 Meanings of service and continuous
(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 authorised 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.
(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.
Small business employer is defined at s.23 of the Act:
“23 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, the employee is a regular casual employee of the employer 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.”
Hearing
The jurisdictional hearing was conducted by telephone on 17 January 2023.
The Applicant was self-represented, and the Respondent was represented by Mr Luke Jervis.
Summary of the evidence and submissions
The Respondent’s submissions
During the hearing, Mr Jervis submitted that the Applicant was originally employed on 1 June 2021. The Applicant was incarcerated for a matter unrelated to his employment and did not attend work from July 2022. Mr Freedman – Director of the Respondent – was unaware that the Applicant was going to be taking an extended period of leave. The Respondent paid out the Applicant’s entitlements and remaining hours worked.
The Applicant contacted Mr Freedman on 30 August 2022. Mr Freedman confirmed that he would “hold the position open” for the Applicant so that the Applicant could have employment in effectively the same role after he was released from correctional services. Mr Jervis submits that this was a new version of employment and not continuous service as the Applicant abandoned his role without informing the Respondent. Further, Mr Jervis admits that the Respondent would have kept the Applicant in the role if he had informed Mr Freedman of the situation before abandoning his role. However, without any contact from the Applicant, the Respondent was left in the position of having to end the Applicant’s first span of employment to try and fill the role with another employee.
Therefore, when the Applicant was rehired in the same role, he was only employed with the Respondent from 1 September 2022 to 25 November 2022, a period of service of two months and 24 days.
Mr Jervis further submitted that the Respondent is a small business employer and complied with the Small Business Fair Dismissal Code, and further stated that the Applicant had not completed the required minimum employment period which for a small business is a period of 12 months in its Form F3 – Employer Response.
As to whether it was a small business at the time the Applicant’s employment was terminated, the Respondent provided Xero timesheet details for the period of 29 November 2022. The Respondent had 12 employees listed on its Payroll Employee Summary.
The Applicant’s submissions
The Applicant’s submissions may be summarised as follows.
The Applicant asserts that the period from 1 June 2021 to 25 November 2022 is continuous service as he never requested to be paid his entitlements and assumed that the Respondent was informed of his extended period of leave.
The Applicant was unable to contact the Respondent prior to being incarcerated for six weeks as he was incarcerated on the spot. The Applicant assumed that his partner at the time informed Mr Freedman that he was going to gaol. He concedes that his entitlements and remaining hours worked were paid out by the Respondent when he was incarcerated. However, the Applicant never requested nor was informed that the Respondent was going to pay him out.
The Applicant did not provide evidence on the question of whether the Respondent was a small business.
Consideration
Regarding the question on whether there was continuous service. I find that the Applicant was dismissed after abandoning his employment with the Respondent. The Respondent was not properly informed of the possibility that the Applicant was going to be placed into custody. I do not believe there is merit in the argument that the Applicant was incarcerated on the spot. The Applicant had legal representation at the time and had the ability to send correspondence to the Respondent. As the Respondent paid out his entitlements and the remaining hours worked, I find that this is evidence that the Respondent dismissed the Applicant in July 2022.
Had the Applicant informed the Respondent of his inability to work due to his incarceration then the Respondent would have had the opportunity to note his absence down and enable the employer then to allow for a break in service and then to resume his employment once the absence was over. In this matter the Respondent did not hear from the Applicant and after a period of non-authorised absence or even any communication from the Applicant made the decision to terminate the Applicant and pay his statutory entitlements out.
The Respondent when requested by the legal representative for the Applicant to provide a letter indicating that he would re hire the Applicant, which was done to assist the Applicant in his attempts to no longer remain in custody, the Respondent agreed. The result of the petitions of the Applicant’s legal representative was for the Applicant to be released from custody and the Respondent being true to his word then employed the Applicant.
In considering the period of continuous service I do not accept that there was an authorised absence as contemplated under s22(2) of the FW Act. The break was not authorised and therefore the Applicant’s service re started in September and thus he does not have the requisite period of service for a small business of 12 months.
The Respondent provided evidence listing a total of 12 employees and the Applicant did not identify any other employees in the business that would increase the number beyond 12.
The Respondent has established that the business has less than 15 employees and therefore is defined under the Act as a small business. In this case, the minimum employment period is 12 months and the Applicant had been employed for a total of 2 months following his incarceration (a non-authorised absence).
Consequently, the Applicant had not completed the minimum employment period.
Accordingly, I find that the jurisdictional objection is upheld and order that the application be dismissed.
DEPUTY PRESIDENT
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