Shaniya Shaniya v Advanced Work Services Pty Ltd T/A Carpet Cleaning Kings

[2024] FWC 1193

[2024] FWC 1193

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Shaniya Shaniya
v
Advanced Work Services Pty Ltd T/A Carpet Cleaning Kings

(U2024/2393)

DEPUTY PRESIDENT CLANCY MELBOURNE, 9 MAY 2024

Application for relief from unfair dismissal – minimum employment period – settlement agreement – dismissal under s.587 at the Commission’s initiative – concerns regarding Applicant’s terms and conditions of employment.

1. On 4 March 2024, Ms Shaniya Shaniya made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

1. Ms Shaniya advised in his Form F2 – Unfair Dismissal Application (Form F2) that she commenced employment with Carpet Cleaning Kings on 23 October 2023 and that her dismissal took effect on 20 February 2024. I received confirmation that the correct legal name for the Respondent is Advanced Work Services Pty Ltd. Accordingly, pursuant to s.586 of the Act, I have corrected the name of the Respondent so that it is recorded as being Advanced Work Services Pty Ltd, trading as Carpet Cleaning Kings (Respondent). 

1. On 5 April 2024, the Commission emailed correspondence to the parties nominated email address’ advising them that, on the basis of the information provided in Ms Shaniya’s Form F2, she may not have served the minimum employment period, and was therefore not eligible to lodge a remedy for unfair dismissal application. The correspondence also requested that Ms Shaniya inform the Commission of her intentions regarding her matter, whilst the Respondent was requested to provide a Form F3 – Employer Response (Form F3), by 9 April 2024. No correspondence was received from the parties. On 15 and 30 April 2024, I caused further correspondence to be sent to the parties requesting that Ms Shaniya file any documents or other evidence establishing that her employment was for at least the minimum employment period. On 30 April 2024, Ms Shaniya confirmed that she had worked for the Respondent for only four months. During a Mention held before me on 7 May 2024, the parties concurred that Ms Shaniya had not met the minimum employment period. They also advised that they had reached a settlement agreement, and Ms Shaniya indicated she no longer required the Commission to deal with her application. The Respondent was represented at the Mention by Mr Las Hettiarachchi.

1. Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. Section 383 of the FW Act sets out 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.

1. Section 587(1) of the FW Act provides as follows:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

1. The material before the Commission indicates Ms Shaniya has not completed the required minimum employment period under the FW Act and, furthermore, that the parties have reached a binding settlement agreement. I am therefore satisfied the application has no reasonable prospects of success. Having regard to the circumstances of this case, I consider it is appropriate to exercise the discretionary power in s.587. The application is dismissed under s.587(1)(c) of the FW Act. An Order[1] to this effect will be issued with this decision.

1. Before concluding, I shall record some features of the employment arrangements that had been in place. The parties entered into an employment agreement whereby Ms Shaniya was required to work 37.5 hours from Monday to Friday and a further 4.5 hours on Saturdays. For this 42-hour week/182-hour month, Ms Shaniya was paid a gross monthly sum of 60,000 Sri Lankan Rupees. Based on current exchange rates, this equates to approximately A$300.00 per month or A$1.68 per hour. Further, if Ms Shaniya failed to complete 2 years of employment with the Respondent, a term of the agreement required her to pay the Respondent 6 months’ salary and if 2 years of service was completed, Ms Shaniya would be required to give 3 months’ notice of termination or make a payment in lieu equating to 3 months’ salary. In addition, the agreement provided for 7 days ‘casual’ leave (said to be for sick leave) per annum and 14 days of annual leave per annum. Finally, the agreement contained a ‘non-compete’ clause which persists for a 2-year term after termination.

1. Mr Hettiarachchi proffered that as Ms Shaniya was resident in Sri Lanka at all material times and performed the work there, the employment arrangements should be evaluated according to Sri Lankan terms and conditions of employment.

1. I am not in a position to make comment about prevailing employment standards in Sri Lanka however, the terms and conditions contained in the employment agreement between Ms Shaniya and the Respondent cannot be regarded as anything other than unacceptably exploitative and oppressive if compared to the minimum conditions of employment under the FW Act. While the Commission’s powers extend only to national system employers and national system employees, it is hoped, at the very least, that any employees of the Respondent engaged and resident in Australia are employed on terms and conditions of employment that meet the applicable minimum standards. I am sufficiently concerned about features of this matter that I intend to refer it to General Manager of the Commission for advice and/or referral to a competent authority.

DEPUTY PRESIDENT

[1] PR774626.

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