Taylor Lawler v Grand Theatre Company Pty Ltd T/A Grand Cinemas Pty Ltd

[2021] FWC 3144

[2021] FWC 3144

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Taylor Lawler
v
Grand Theatre Company Pty Ltd T/A Grand Cinemas Pty Ltd
(U2020/5869)

DEPUTY PRESIDENT BEAUMONT PERTH, 23 JUNE 2021

Application for an unfair dismissal remedy.

[1] Ms Taylor Lawler (the Applicant) had worked for Grand Theatre Company Pty Ltd (the Respondent) in a casual capacity for several years. Those years had been punctuated by several periods of 1-8 month ‘breaks’ where she did not work at all. On 8 January 2020, the Applicant went on a five week holiday overseas. While she requested leave for the period, the Respondent insisted that she tender her resignation and would look to re-engage her if there was available work on her return. Having taken several ‘breaks’ away from work in the past, the Applicant held the view she would be back at work on the completion of her trip. That occurred, and as of 16 February 2020, having completed the requisite payroll and other forms, and having signed an employment contract, the Applicant returned to work once again. However, it did not last long. In just over a month, Covid-19 made its presence known, the Respondent, like many businesses in Western Australia, was forced to close its doors.

[2] On closing its doors in the latter part of March 2020 the Respondent stood down the Applicant and other employees, under s 524 of the Fair Work Act 2009 (Cth) (the Act). It did not, said the Respondent, dismiss her. However, the Applicant says that while the Respondent could have placed her on Jobkeeper, it did not, and she was dismissed. According to the Applicant, that dismissal was unfair, and she lodged an unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth) (the Act).

[3] Whilst the Respondent has primarily argued that the Applicant was not dismissed and remains an employee to this day, the Respondent contends that if the Commission is minded to find it dismissed the Applicant, it remains she was unprotected from unfair dismissal, because she had not completed the minimum employment period.

[4] The parties were informed that I would initially determine whether the application was beyond the jurisdiction of the Commission and would then turn my attention to whether the dismissal was unfair. Were it necessary to consider remedy, a separate hearing would be held.

[5] Having considered the evidence I am content to find that the Applicant was dismissed, as understood by reference to s 386(1). However, I am unpersuaded that the Applicant had completed the minimum employment period. It follows the application is beyond the jurisdiction of the Commission and is therefore dismissed. My reasons follow.

1 Background

1.1 The operations of the Respondent

[6] The Respondent business consists of a head office and six cinema complexes across Western Australia. Of its approximately 270 employees, approximately 85% are employed on a casual basis. 1

[7] Since 2015, it has chosen to communicate with its employees through a platform referred to as ‘Deputy’. Deputy is used for all communications, including the provision of rosters, logging in and off shifts, and leave requests. It is also used as a tool to maintain file notes and is used to send letters to employees. On receiving communications through Deputy, employees are required to confirm their receipt of the communications within designated timeframe.

[8] Ms Pedulla, the Financial Controller of the Respondent, gave evidence that the Respondent had introduced a Leave Policy in 2005 to cater for the high number of casual employees who would be unavailable during peak periods, such as December and January. She explained that whilst the Respondent had several hundred casual employees, the business faced circumstances where 20-30 employees would depart for months at a time, only to return and expect they would be provided with work.

[9] Ms Pedulla said that the Leave Policy provided for casual employees to have four weeks of leave per year. However, should the employee request further leave, the employee may be asked to resign. Ms Pedulla said that the Leave Policy was discussed with employees upon commencement and had been regularly posted on Deputy.

[10] On commencing employment with the Respondent, employees were made aware of the Respondent’s Team Member Handbook (Handbook). Regarding an employee’s availability for work, the Handbook detailed the business's operational requirements, including the requirement to be available at peak times such as school holidays and Saturday and Sunday. 2 If an employee wanted to request ‘leave’, the following applied:

You should speak directly to your Manager regarding any absence or leave requests, and remember, your request is more likely to be granted if you have been a dependable person throughout the year assisting in filling additional shifts as required… Longer periods of leave or absence will need to be negotiated with your Manager well in advance. Extended periods of absence or leave may jeopardise your ongoing employment.

…

All requests for leave, paid or otherwise, are to be submitted in writing to your Manager for approval at least two weeks prior to commencement of the leave. 3

1.2 The Applicant’s employment

[11] The Applicant commenced employment with the Respondent in December 2013. She worked as a casual cinema worker for 14 months, had an approximate five-month break, and then started work for the Respondent again in mid-July 2015. After nine months of working, the Applicant again stopped work for eight months only to return to the Respondent at the end of December 2016. She worked for 18 months on this occasion, stopping work in June 2018 and recommencing in August 2018 – to work through another 17 months.

[12] During the 17 month period from August 2018, the Applicant said she offered to work the unpopular shifts, and when wanting to be absent from the workplace for the period of December 2019 to January 2020, she gave the Respondent ample notice. She spoke to her Line Manager about her proposal to take leave in December 2019 and, on receiving feedback that this was a peak period for the business, shifted her leave dates to January. On 6 June 2019, she submitted a leave request with the comment ‘Canada and America’.

[13] Her Line Manager at the time, Mr Jamie Russell, confirmed that he had asked the Applicant to delay her leave until after the Christmas/New Year’s Day break. On 6 June 2019, he said that he sent the Applicant a reminder post via Deputy, noting that she would be required to resign from the Respondent prior to going away. The post read:

This leave has been approved however you will be required to resign from your position prior to going away. As per previously if we have work available we will look at re-hiring you on your return. 4

[14] On 10 December 2019, Ms Pedulla sent a reminder to all staff via Deputy about the Respondent’s rules and procedures concerning employee availability. 5 It stated, amongst other things, ‘1. [Unavailability – this is only for school, university and sport (it is to be stated on request what it is for) It is not to be used for another job or just that you don’t want to work) 2. Leave – this is for any time off you want including parties, holidays, concerts, birthdays etc. Casual’s [sic] can request 4 weeks leave per year and anymore than this you make be asked to resign…’.6

[15] The Applicant gave evidence that on 7 January 2020, the day before her final shift, Mr Russell approached her whilst she was at work and stated she needed to complete the Respondent’s resignation before the end of her shift. 7 The Applicant said she did not want to sign the resignation form, and so avoided Mr Russell for the remainder of the shift.8

[16] On 8 January 2021, the Applicant again sought to avoid Mr Russell. She said that with only 30 minutes left of her final shift, Mr Russell asked her to present to the office. When the Applicant arrived, Mr Russell had partially filled in the resignation form, with his signature and the previous day’s date. 9

[17] The Applicant explained that she was angry and upset about the situation as she felt she had been cornered with just 30 minutes left of her final shift. 10 She said that she had not wanted to sign the resignation form as she was concerned that she would not be re-employed once she had returned from her holiday because of her age.11 Further, she was concerned that she would not receive any shifts on her return for failing to comply with the Respondent’s policy if she did not sign the form. She said that she felt she had no choice but to sign the form.12

[18] According to the Applicant, Mr Russell apologised to her for the process and stated that it was the Respondent’s policy to do so (presumedly require the resignation). 13 According to the Applicant, Mr Russell informed her she was a good worker, and he would see her once she returned from her trip.14

[19] Whilst on holiday, the Applicant continued to receive messages via the Deputy platform, including one message that required her to confirm that she had read it. 15

[20] On 3 February 2020, the Applicant contacted Mr Russell via email and asked about continuing her employment at the Respondent. On 10 February 2020, she received a reply from Mr Russell, who asked that she come in for a chat. 16 A meeting was held on 14 February 2020, during which, said the Applicant, a short discussion was held concerning some of the other employees who had left and her availability.17 The Applicant said that she was re-engaged on 16 February 2020 and undertook the same work as she had before departing on her trip.18

[21] The Applicant signed an employment contract dated 14 February 2020, which informed that she was to commence work on 16 February 2020 as a casual cinema worker. 19

1.3 Covid-19 and what followed

[22] On 22 March 2020, the Applicant said she was informed that there was a government direction indicating that cinemas were required to be closed due to Covid-19 restrictions. 20 The next day the Applicant received a letter from Ms Pedulla informing her that she had been stood down from her position due to the government closure of all cinemas.21

[23] On 30 March 2020, Ms Pedulla posted an announcement to all staff on the Deputy Platform. The message read, in part, that the Respondent was in the process of obtaining more information about the Jobkeeper payment. However, the initial research indicated that to qualify for the allowance an employee had to be full-time, part-time, or have been a casual in employment for over 12 months. 22

[24] Ms Pedulla issued a subsequent post via Deputy on 9 April 2021, in which she updated employees concerning the Respondent’s progress with Jobkeeper – noting it was only legislated ‘last night’ and that the Respondent was awaiting proper legal advice. 23

[25] Ms Pedulla issued further communication on 22 April 2020, where employees were informed of the difficulty the Respondent faced in paying wages in advance whilst awaiting reimbursement from the government. It was observed that the Respondent would need to scale down. 24 The letter of 22 April 2020 continued:

At this time, we only have resources to retain a full-time staff and some casual managers. As a result, some employees will not be eligible for the JobKeeper Payment. We will keep you informed if our financial position changes, but our bank may not provide the finance which would be required for us to retain staff and to place everyone on JobKeeper. 25

[26] In response to the letter of 22 April 2020, the Applicant emailed Ms Pedulla seeking clarification regarding her eligibility for JobKeeper Payment. 26 Ms Pedulla replied:

As the letter said yesterday, we don’t have the financial resources to retain all staff and do the Jobkeeper payment. If our bank provides us finance we will, otherwise we can not retain all staff and must scale down. The staff who will be retained have been informed and we will inform you if our financial position changes and we can place everyone on Jobkeeper. 27

[27] On 23 April 2021, the Applicant replied to Ms Pedulla, again seeking clarification about her employment status. She sought to check whether she would have been considered an eligible employee for Jobkeeper, but because she was not being retained, the Respondent was not going to include her in the list of employees submitted for the allowance. 28

[28] That same day Ms Pedulla responded by email, clarifying that the Applicant was not employed for the whole 12 months and that was an eligibility requirement for Jobkeeper. Therefore, the Applicant would not be included on the list. 29

[29] On 24 April 2021, the Applicant, in her email to Ms Pedulla, asked whether the Respondent had sought legal advice regarding her eligibility, noting that aside from a four week period where she had taken approved leave, she had been employed on a regular and systematic basis for the requisite period. 30

[30] By email dated 24 April 2021, Ms Pedulla responded to the Applicant detailing:

[Y]ou actually resigned in writing and went on a long overseas holiday, then came back and reapplied for your position, you were interviewed by Jamie, hired which you submitted all new paperwork for. This all went through the payroll system and you were set up as a new employee which included new ATO paperwork. We have dealt with this issue before and had legal advice. 31

[31] Ms Pedulla gave evidence that on 9 June 2020, she posted a note on Deputy to every employee, stating that every employee must complete a Covid-19 health course before they could be rostered to work at the cinemas. Ms Pedulla said that the Applicant had not completed the course, and that since May 2020, the Applicant had not responded to any posts on Deputy. It was Ms Pedulla’s evidence that had the Applicant completed the Covid-19 health course, provided her manager with a certificate of completion and her availability, she would have been included in the roster.

[32] Ms Pedulla noted that from 23 March 2020 to late August 2020, only the full-time employees worked, and the hours worked were those that Jobkeeper payments covered. She explained that this was because the Respondent had insufficient funds to pay additional amounts. However, from 25 September 2020, Ms Pedulla said that employees who were ineligible for Jobkeeper payments had been rostered to work some shifts, and a limited number of new employees had been hired for the school holiday periods.

2 Agreed matters

[33] Before turning to the issues in contention, it is noted that there are several matters that are agreed upon. It is not in contest, and I am satisfied on the evidence that:

(a) the Applicant earned less than the high income threshold and was covered by a modern award; 32

(b) the Respondent was not a ‘small business employer’ as defined in s 23 of the Act, so the Small Business Fair Dismissal Code was inapplicable; 33

(c) the Applicant’s alleged dismissal was not a case of genuine redundancy; 34 and

(d) her application was made within the period required. 35

3 Was the Applicant dismissed?

[34] Subsection 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2, which relevantly concerns Unfair Dismissal. That subsection provides:

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[35] Under s 386(2) of the Act, there are exceptions regarding when a person has been dismissed. However, those exceptions are not relevant to this case.

[36] The definition of dismissal in s 386(1) of the Act has two elements, both of which have been subject to consideration. The first traverses ‘termination on the employer’s initiative’ and the second, ‘resignation in circumstances where the person was forced to do so because of conduct or a course of conduct’. This bifurcation was explained by the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli 36 as follows:

[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.

[37] When examining whether the Applicant was dismissed, the relevant period in the first instance is that falling after 16 February 2020. It is evident that the Applicant did not resign by words expressed. Therefore, the starting point is whether the Respondent terminated the Applicant’s employment at its initiative (s 386(1)(a)).

[38] In City of Sydney RSL & Community Club Limited v Mrs Roxana Balgowan the Full Bench considered the operation of s 386(1)(a):

[10] It seems clear…that the concept of constructive dismissal is to be accommodated by s.386(1)(b) and that concept is not subsumed in s.386(1)(a).

[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression “termination at the initiative of the employer” was:

“. . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘‘termination of employment.’’” (references omitted)

[39] It is evident that the Applicant did not receive a letter of termination. In fact, she was informed by the letter of 23 March 2020 that she had been stood down under s 524 of the Act. However, while the Respondent asserts that the Applicant was not dismissed, I am unable to reach that same conclusion.

[40] The Respondent’s communication on 22 April 2020 advised the Respondent’s employees that the Respondent only had resources to ‘retain full-time staff and some casual managers’. Perhaps the choice of words was unfortunate, and the Respondent was simply attempting to convey that the affected employees would not be ‘retained’ such that they would be receiving Jobkeeper. However, it is open to see on an objective level how the Respondent had confused its employees regarding its communication. Tendered into evidence was a post dated 22 April 2020 that had been extracted from Deputy. A person asked:

…if we are no long being “retained” does this now mean we are effectively unaffiliated with the company and officially unemployed even when we re [sic] open? – just looking for a bit of clarity in that regard, thanks

[41] Ms Pedulla responded to the posts on Deputy – encouraging employees to email her directly. The Applicant clearly took up that opportunity to seek clarification. Ms Pedulla’s subsequent email to the Applicant on 23 April 2020, again reiterated that the Respondent did not have ‘the financial resources to retain all staff and do the Jobkeeper payment’. 37 That same communication continued:

If our bank provides us finance we will, otherwise we can not retain all staff and must scale down. The staff who will be retained have been informed and we will inform you if our financial position changes and we can place everyone on Jobkeeper. 38

[42] It was uncontentious that the Applicant did not receive an email informing her that she had been retained. While the email dated 23 April 2021 continued that the Applicant would be informed if the Respondent’s financial position changed such that all employees could be placed on Jobkeeper – when the Applicant asked whether she would have been an eligible employee but for not having been ‘retained’ – the simple response was ‘you weren’t employed for the whole 12 months as Jobkeeper requires then you wouldn’t be’. The Respondent deflected – either deliberately or inadvertently from responding to the assertion ‘due to not being retained’.

[43] I consider at this point, namely as of 23 April 2020, it was open to the Applicant to consider her employment relationship terminated at the Respondent’s initiative. It was not a termination of employment that was brought about by ill intent. The Respondent’s financial circumstances clearly necessitated a rapid downsizing, whereby only those employees who were employed at head office, or were managers or relief managers, were retained. The business could not, according to Ms Pedulla, afford to make the upfront payment for the remainder of its employees and then seek reimbursement through the Jobkeeper program.

[44] The Respondent's action was the principal contributing factor that led to the termination of the employment relationship with the Applicant. It had unequivocally informed the Applicant that ‘staff who will be retained have been informed’, she was not so informed. I am satisfied that as of 23 April 2020, the Applicant had been dismissed.

[45] It is observed that both Applicant and Respondent argued, to suit their purpose, that the Applicant’s receipt of Deputy posts during periods of absence indicated that she remained an employee. I do not accept the proposition. Rather than being a reflection that the employment relationship remained afoot, I think the preferable position is that the Respondent’s management simply lacked diligence in removing employees off the Deputy platform once they had departed the business.

4 Did the applicant satisfy the minimum employment period?

[46] To determine whether the Applicant had satisfied the minimum employment period at the time of dismissal requires consideration of the effect of the first and second period of employment, and the circumstances at the juncture between the two.

[47] The Applicant argued that she was on authorised unpaid leave for the period of 8 January 2020 until early February 2020. Therefore, there was no break in her continuity of service. She also premised her argument on her resignation of 8 January 2020 being ineffective at law because she had been forced to resign.

[48] Clearly, the point is important because a person is only protected from unfair dismissal if they have completed the minimum employment period. 39 The meaning of ‘minimum employment period’ for the purpose of this application is a period of six months.40

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

(1) [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.

(2) [When casual employment counts toward period of employment]

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… (underlining my emphasis).

[50] The starting position is that a period of employment is also referred to as a period of continuous service. When we step through this in more detail below, it is important to keep that at the forefront of one’s mind.

[51] Section 22 defines the terms ‘service’ and ‘continuous service’; the relevant subsections read:

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) [Exceptions to meaning of service]

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;

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

(3) [Excluded period does not break continuous service]

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…

[52] In effect, the Applicant has contended the period from 9 January 2020 until 16 February 2020, was an excluded period because it was unpaid leave; and as such, it does not break her continuous service with the Respondent.

[53] The evidence, however, does not support this proposition. The Applicant gave evidence that on 7 January 2020, the day before her final shift, Mr Russell approached her whilst she was at work and stated she needed to complete the Respondent’s resignation before the end of her shift. 41 The Applicant expressed unreservedly that she did not want to sign the resignation form. The following day, the Applicant appeared to have gone to some lengths to avoid encountering Mr Russell. The effort appears to have been made to thwart any attempt to have her resign.

[54] The Applicant explained she did not want to sign the resignation form because she held concerns that she would not be re-employed once she had returned from her holiday. Predominately her concerns were premised upon her age, and the salary that age attracted. 42 The Applicant appreciated the gravity of what she was doing. If she signed the resignation form, her employment was to come to an end. There would be no ‘guarantee’ of re-employment on her return from the United States. On an objective basis, it is open to finding that the Applicant appreciated she was not taking a form of authorised unpaid leave.

[55] However, the gravamen of the Applicant’s argument is that she was forced to resign, and I would agree with her that this was the case.

[56] Section 386(1)(b) speaks to a resignation being forced such that the employee had no effective or real choice but to resign. The requisite employer conduct is the essential element. Mr Russell had, on several occasions, communicated to the Applicant that she was to resign if she wanted to absent herself over the January 2020 period. On the first occasion, it was communicated by way of her ‘leave approval’ form. Afterwards, she was informed by Mr Russell in person on 8 January 2020, the resignation paperwork already completed (save the insertion of the Applicant’s signature) provided to her.

[57] The Respondent made much of having had its ‘Leave Policy’ in place for many years. On several occasions, it also referred to having received legal advice on the same. However, these assertions do not assist the Respondent. They do not negate the fact that the Applicant was placed in a position whereby if she wanted to be absent from the workplace for a period of four weeks – she was required to resign from her work—an unusual circumstance when one considers the casual basis of the employment relationship.

[58] While on the face of it, the Applicant appeared to have complied with the rules around taking ‘leave’ by submitting a request some six months prior to the date, structuring her holiday so as not to breach the four week threshold, and attempting to demonstrate she was a reliable employee, the resignation form was pre-populated. She was compelled to sign it if she wanted to be absent for four weeks. The Applicant had no choice. It had been negated.

[59] The Respondent contended that its discretion to allow absences from the workplace was broad. It appeared to advance the contention to justify its arbitrary application of a rule that, in my view, had been unreasonably applied.

[60] Despite the Respondent’s questionable conduct, at the time the Applicant resigned on 8 January 2020, the Applicant’s employment relationship with the Respondent ended. She had been dismissed (see s 386(1)(b) of the Act). There was nothing unequivocal in her actions. The Applicant understood the gravity of the act, appreciating that she may not be re-employed on her return from the United States.

[61] The Applicant argued that because her resignation arose from ‘undue influence’ it should not be treated as effective, rendering her continuous service with the Respondent unbroken. She drew support for this proposition from the decision of Ms Tarilee Tebble v Rizmas Pty Ltd (Tebble), 43 where it was said that in certain circumstances, such as a resignation in a situation of coercion, it is possible that the resignation could be found not to have been effective.44 However, in Tebble, there was no requirement to consider whether the resignation was effective as the situation did not arise for consideration. The Commissioner’s comments are apt to be described as obiter remarks.

[62] As I have noted, the Applicant resigned on 8 January 2021, and for the reasons I have given, she was dismissed for the purpose of the Act. At the time of her dismissal on 8 January 2021, it was open to the Applicant to have made an unfair dismissal application. She was, after all, protected from unfair dismissal at that time. However, she did not. Instead, some six weeks later, she recommenced with the Respondent after having expressed her interest regarding employment, meeting with Mr Russell, signing an employment contract, and completing the requisite forms.

[63] While the Applicant explained she had complied with the Respondent’s resignation process, because she did not wish to jeopardise prospective employment – that was her choice. The narrative was one of a young employee lacking the confidence to question her corporate employer's questionable antics. Yet, she had not been so reticent when questioning what she had perceived to be the unfair allocation of shifts during her employment, or quite rightly reporting an incident of sexual harassment. In fact, there was nothing at this time which precluded the Applicant from pursuing an application for unfair dismissal. Whilst she was about to embark on a holiday, the application forms for an unfair dismissal remedy are succinct, written in plain English, and can be easily lodged.

[64] Returning to the decision of Tebble, in that case it was found that applicant, Ms Tebble, had left a note for her employer, which read to the effect that she was resigning from her employment with immediate effect. 45 Her employer acted in a manner consistent with having understood the applicant resigned, and other indicia indicated that Ms Tebble had resigned rather than taking a period of leave. Some two weeks later, Ms Tebble was re-employed. The Commissioner concluded that Ms Tebble had not met the minimum employment period because the resignation broke the period of continuous service as defined by s 22 of the Act.

[65] The conclusion drawn in Tebble, was considered in the decision of Ms Heidi Kefer v Tattersall’s Holdings Pty Ltd (Kefer). 46 Kefer involved the consideration of the minimum employment period in circumstances where there had been a transfer of employment. In Kefer, the applicant had worked for Tattersall’s associated entity, Tattsbet Limited, for a period of 18 months, prior to her successfully applying for a position with Tattersall. On gaining the position at Tattersall, she resigned from Tattsbett Limited. However, some three months later, Tattersall dismissed her. In handing down his decision, the Commissioner made the following obiter remarks:

[41] I should also recognise what appears to be something of an anomaly that seems to have emerged from the interpretation and application of s. 22 of the Act. If the approach adopted by Commissioner Roe in Tebble is correct, then the break of service occasioned by an employee who resigns and is re-employed by the same employer within 3 months, would not occur in a case where an employee resigns and is employed by an associated entity within 3 months.

[42] The anomaly that I have identified is unlikely to have been an intended consequence of the meaning given to service and continuous service by s. 22 of the Act. In my view, the logical corollary of the operation of subsections 22 (5) and (7) of the Act, is that if the same employer re-employs an employee within 3 months of the termination of employment, the period of service prior to termination counts as service. The period between termination and re-employment would not count towards the length of the employee’s continuous service but, importantly it would not break the service such that the employee would recommence the minimum employment period.

[43] The extension of the transfer of employment protections established by subsections 22 (5) and (7) of the Act to embrace re-employment with the same employer is also consistent with the terms of subsection 22 (3) of the Act. Further, the notion that continuous service would not be broken if re-employment occurs within 3 months, is congruous with the provisions of s.47 (2) of the Industrial Relations Act 1999 [Qld], which deals with continuous service for the purpose of long service leave.

[44] However, in the alternative, my concern about this apparent anomaly may be entirely misplaced and the legislation may have intended that re-employment with the same employer within 3 months would re-start the minimum employment period whilst new employment with an associated entity within 3 months would not.

[66] When considering statutory provisions, the starting point is to construe the words of the statute according to their ordinary meaning having regard to the context and legislative purpose. 47 It is also recognised that ‘[i]t is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do’.48 It is plain from the references to a transfer of employment from the ‘first employer’ to the ‘second employer’ in s 22(5) and (7) of the Act that those sections do not apply unless two different employers employ the employee at two different points in time.

[67] In my view, it follows that ss 22(5) and (7) do not extend to an employee whose employment relationship with an employer comes to an end only to be later re-employed by the same employer. That employee’s earlier period of service with the employer combined with their later service period does not constitute their ‘continuous service’ with the same employer. In Harris v Laing O’Rourke Australia Construction Pty Ltd (Harris), 49 it was said that a ‘gap’ between periods of employment with the same employer would not satisfy the ordinary meaning of ‘continuous service’ because the service is broken and there is nothing in s 22 or elsewhere in the Act to alter this outcome.

[68] I accept the conclusion reached in Harris, 50 Ireland v Hanson Construction Materials Pty Ltd,51 Voican v Monadelphous Engineering Pty Ltd,52 and Tebble, in this respect,noting that I am unable to agree with the abovementioned obiter remarks of Commissioner Cambridge in Kefer.

[69] The employment relationship was established when the employment contract was signed on 14 February 2020, and the Applicant started two days after. The significance of this for the Applicant is evident. At the time of her dismissal on 23 April 2020, she had not completed the minimum period of employment and therefore was unprotected from unfair dismissal.

Conclusion

[70] As I am satisfied that the Applicant has not completed the required minimum employment period, she is not a person who is protected from unfair dismissal. As noted in my introductory remarks, her application for an unfair dismissal remedy must therefore be dismissed. An Order 53 to this effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

Ms. Taylor Lawler, the Applicant;
Mr. Mark Lawlor, for the Applicant;
Mr. David Hamilton, for the Respondent;
Ms. Julie-Anne Pedulla, for the Respondent.

Hearing details:

Perth (video)
June 03
2021

Printed by authority of the Commonwealth Government Printer

<PR730353>

 1   Witness Statement of Mrs Julie-Anne Pedulla (Exhibit R1) [2].

 2   Exhibit A2 Annexure A40.

 3   Ibid.

 4   Exhibit A2 Annexure A2.

 5   Exhibit A2 Annexure A3.

 6   Ibid.

 7 Exhibit A1 [29].

 8 Exhibit A1 [30].

 9 Exhibit A1 [33].

 10 Exhibit A1 [34].

 11   Ibid.

 12   Ibid.

 13 Exhibit A1 [35].

 14   Ibid.

 15 Exhibit A1 [37].

 16 Exhibit A1 [40].

 17 Exhibit A1 [41].

 18 Exhibit A1 [42].

 19   Exhibit A2 [A9].

 20 Exhibit A1 [43].

 21   Ibid; Exhibit A2 Annexure A12.

 22   Exhibit A2 Annexure A13.

 23   Exhibit A2 Annexure A14.

 24   Ibid.

 25   Exhibit A2 Annexure A15.

 26   Exhibit A2 Annexure A21.

 27   Exhibit A2 Annexure A20.

 28   Ibid.

 29   Exhibit A2 Annexure A19.

 30   Exhibit A2 Annexure A18.

 31   Exhibit A2 Annexure A18.

 32   Fair Work Act 2009 (Cth) s 382.

 33   Fair Work Act 2009 (Cth) s 385(c).

 34   Fair Work Act 2009 (Cth) s 385(d).

 35   Fair Work Act 2009 (Cth) s 394(2).

 36   [2017] FWCFB 3941.

 37   Exhibit A2 Annexure A20.

 38   Ibid.

 39   Fair Work Act 2009 (Cth) s 382(a).

 40   Ibid s 383(a).

 41 Exhibit A1 [29].

 42 Exhibit A1 [34].

 43   [2011] FWA 6853.

 44   Ms Tarilee Tebble v Rizmas Pty Ltd[2011] FWA 6853 [8].

 45   Ms Tarilee Tebble v Rizmas Pty Ltd[2011] FWA 6853 [25].

 46   [2012] FWA 2375.

 47   Construction, Forestry, Mining and Energy Union v Hamberger and Another (2011) 195 FCR 74 [70]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 [14]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408.

 48   Thompson v Goold & Co [1910] AC 409, 420 Lord Mersey; see also, Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98, 103 (Northrop and Pincus JJ); Minister for Immigration and Citizenship v Hart [2009] FCAFC 112 [6] (Spender J).

 49   [2017] FWC 1204.

 50   [2017] FWC 1204.

 51   [2013] FWC 5292.

 52   [2013] FWC 9329.

 53   PR730882.