Sierra Solomon v Aldesta Heron Island Pty Ltd

[2024] FWC 2272

[2024] FWC 2272

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sierra Solomon
v

Aldesta Heron Island Pty Ltd

(U2024/6604)

DEPUTY PRESIDENT LAKE BRISBANE, 27 AUGUST 2024

Application for an unfair dismissal remedy – jurisdictional objection – minimum employment period – casual employee found to be regular and systematic – jurisdictional objection dismissed – matter programmed for merits

1. Ms Sierra Solomon (the Applicant) made an application to the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) stating that she was unfairly dismissed from his employment with Aldesta Heron Island Pty Ltd (the Respondent).

1. Section 396 of the Act requires satisfaction of four matters before considering the merits. The Respondent raised a jurisdictional objection that the Applicant was not a persons protected from unfair dismissal as she did not meet the minimum employment period of six months under s.382 and s.383 of the Act.

1. The Applicant sought to be legally represented by Francios Malan from FC Lawyers, Ms Karen Sweeny appeared for the Respondent. There were no objections raised regarding representation and leave was granted under s.596.

Did the Applicant meet the minimum employment period of six months?

1. Section 382(a) of the Act requires a person to have completed the minimum employment period to be protected from unfair dismissal. The Respondent was not a small business employer, meaning the relevant minimum employment period is six months.

1. The Applicant’s period of employment is to be calculated in accordance with s.384 of the Act. Section 384 relevantly provides:

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 as a regular casual employee; 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.

…

1. In considering whether periods of employment amount to continuous service by the Applicant, a Full Bench of the Commission in Shortland v Smiths Snackfood Co Ltd[1] held that:

“Continuous 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. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury.”

1. The Applicant was employed from 3 May 2023 to 6 November 2023. This was a six-month period.

1. On 3 May 2023 and 26 October 2023, the Applicant intended to travel overseas. The Applicant wrote an email to Angel Tan about her departure date and return date to Heron Island.[2]  There was no return date planned by the Applicant.

1. Upon returning from overseas, the Applicant enquired about a role on Heron Island and would receive a new employment contract. The Applicant would recommence with the Respondent from 14 March 2024 to her termination on 1 June 2024. This was a three-month period.

1. I am satisfied with the materials before me that the Applicant meets the minimum employment period. I am satisfied that the period between 6 November 2023 to 14 March 2023, was period of unpaid leave or unpaid authorised absence under s.22 of the Fair Work Act 2009.

1. Although, there was a termination form submitted by the Respondent, the termination only takes effect when the Applicant is put on notice.  The Explanatory Memorandum of s.382 to 384 provides that the “minimum employment period is assessed either when the person is given notice of the dismissal, or when the dismissal actually takes effect, whichever happens first. (emphasis added)”

1. Although the Applicant and Respondent stated that there would no further engagements after 6 November 2023, it does not reset the minimum employment period. It is simply not counted until the employment recommences.[3] The exception would be if there was a clear termination or resignation. This is not the case here.

1. Ms Solomon was not made aware of the Termination Form completed by Ms Rena Scott or Ms Angel Tan completed on 14 November 2023. There was no indication that Ms Solomon was given notice that her resignation was accepted on 6 November 2023 and was seeking to return to work at an unknown date through her email sent on 19 October 2023. The Applicant was not terminated based on abandonment of employment during this period.

1. Therefore, the period of employment started on 3 May 2023, stopped between 6 November 2023 to 14 March 2024 which are not counted in determining the employment period, then resumed from 14 March 2024 to 1 June 2024. The Applicant has been employed with the Respondent for 8 months, meeting the minimum employment period.

1. As a result, the jurisdictional objection that the Applicant did not meet the minimum employment period is dismissed. The matter will now be programmed to determine the merits of the matter. My Chambers will issue further directions.

DEPUTY PRESIDENT

[1] [2010] FWAFB 5709 at [13].

[2] Applicant’s Outline of Submissions, Annexure 2.

[3] Fair Work Act 2009 (Cth) s.22(3).

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