Therese O'Beirne v Spectrum Migrant Resource Centre Limited

[2018] FWC 7682

[2018] FWC 7682

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Therese O’Beirne

v

Spectrum Migrant Resource Centre Limited

(U2018/10048)

DEPUTY PRESIDENT COLMAN MELBOURNE, 18 DECEMBER 2018

Application for an unfair dismissal remedy – jurisdictional objection –minimum employment period not completed – application dismissed

1. This decision concerns a jurisdictional objection raised by Spectrum Migrant Resource Centre Limited (Spectrum) to an application by Ms Therese O’Beirne for an unfair dismissal remedy made pursuant to s 394 of the Fair Work Act 2009 (Act).

1. Spectrum contends that Ms O’Beirne has not completed the six month minimum employment period and that she is therefore not an employee protected from unfair dismissal for the purposes of s 382. The company also raises a second jurisdictional objection, namely that the dismissal was a genuine redundancy. Should the employer’s first jurisdictional objection in relation to the minimum employment period be rejected, the second jurisdictional objection would be heard together with the merits of the application, as is the usual practice of the Commission in respect of matters where the question of ‘genuine redundancy’ is at issue. The present decision deals only with the first jurisdictional objection concerning the minimum employment period.

1. Ms O’Beirne was employed by Spectrum as manager of strategic projects from 22 January 2018 until the date of her dismissal on 7 September 2018. This period clearly exceeds six months. Spectrum submits however that, once periods of unpaid leave are deducted, Ms O’Beirne has not satisfied the six month minimum employment period. The company’s jurisdictional objection in relation to the minimum employment period was listed for hearing before me on Friday, 7 December 2018. Ms O’Beirne appeared and gave evidence on her own behalf. Mr Bernie Nott, chief executive officer of Spectrum, appeared and gave evidence for the company. 

Framework

1. The Commission can only order an unfair dismissal remedy if a person was ‘protected from unfair dismissal’.[1] This in turn requires that the person have completed a ‘period of employment’ that is at least the ‘minimum employment period’.[2] If the relevant employer is a small business employer as defined in s 23 of the Act, that period is one year, otherwise it is six months.[3] It was not in dispute that Spectrum is not a small business employer.

1. Section 384 of the Act provides that 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. Section 22(1) of the Act then provides that a period of ‘service’ is ‘a period during which the employee is employed by the employer’, but does not include any period that does not count as service because of s 22(2). Section 22(2)(b) states that any ‘period of unpaid leave or unpaid authorised absence’ does not count as service. Further, such ‘excluded’ periods do not count towards the length of an employee’s continuous service (s 22 (3)), although they do not break continuity of service. 

1. Ms O’Beirne commenced employment with Spectrum on 22 January 2018 and was dismissed on 7 September 2018. This was the ‘period during which she was employed’, however to ascertain her period of continuous service, any period of unpaid leave must be deducted.

1. It was common ground between the parties that Ms O’Beirne commenced a period of unpaid leave on Saturday 21 July 2018 to travel in Europe, and that she remained on unpaid leave until 7 September 2018, when her employment was terminated for reason of redundancy. Ms O’Beirne was granted unpaid leave, and she received no pay during this period. She claims however that she did in fact undertake certain work during her leave and that she should be paid for it. She says that these periods of work should count as service.

1. From the commencement of her employment on Monday, 22 January 2018 until Friday, 20 July 2018 (her last day of work prior to the commencement of her unpaid leave on Saturday, 21 July 2018), Ms O’Beirne had rendered a total period of service to the company that was one day short of six months.[4] On this basis, it is clear that, when she commenced her period of unpaid leave, Ms O’Beirne had not served the minimum period of employment.

1. There was a disagreement between the parties as to the status of two particular days in June 2018. The company contends that Ms O’Beirne took a part day of unpaid leave on Thursday, 21 June 2018 as well as a whole day’s unpaid leave on Friday, 22 June 2018. Ms O’Beirne says that these days were authorised as paid annual leave by her supervisor. However payroll records submitted by the company show that Ms O’Beirne took annual leave on 21 June 2018 in the amount of 6.42 hours together with leave without pay of 1.18 hours; and that on 22 June 2018 she took 7.6 hours of leave without pay. There was no evidence that Ms O’Beirne disputed the company’s treatment of her absences as leave without pay. I accept the payroll records as a correct statement of the company’s payments to Ms O’Beirne. Therefore, I find that 22 June and one hour of 21 June 2018 were periods of unpaid leave.

1. The effect of these findings is that, when Ms O’Beirne commenced unpaid leave on Saturday 21 July 2018, she had been employed by the company for a total period of one day less than six months, and that, for the purposes of reckoning her period of continuous service, from this period must be deducted one day of unpaid leave on 22 June 2018, and the 1.18 hours of unpaid leave on 21 June 2018. The result is that when Ms O’Beirne’s long period of unpaid leave commenced, she was two days and just over an hour short of a six month period of service.

1. The next question that must be considered is whether any part of the long period of unpaid leave from July to September should count towards the period of employment. Ms O’Beirne says that during this period of unpaid leave she undertook work by reading and responding to an array of emails, such as to render service and increase her period of continuous service beyond the required six months. She says that, whatever may have been the formalities of her unpaid leave, the reality was that she worked on a number of days, for which she is entitled to payment and recognition of service.

1. It was not in dispute that Ms O’Beirne sought, and the company granted, a period of unpaid leave to enable her to travel in Europe. Ms O’Beirne said that she attended a meeting with Mr Nott on 5 July 2018 to discuss the management of her portfolio during her planned absence. She said that she agreed with Mr Nott that she would remotely manage the ‘cloud care 17 project’ and the ‘single point of entry project’ as an ‘off-site’ project manager. She said that a six month strategic plan was agreed for the period July to December 2018, and that for the months of her absence on unpaid leave the plan identified her as ‘offsite owner’ of these two projects. She said that during her absence in Europe, she reviewed and responded to emails on a daily basis, and corresponded regularly with key stakeholders of the company in relation to these two projects. Ms O’Beirne said that she read several hundred emails and responded to approximately 50, generally spending about ten minutes on each one. She submitted a list of these emails. The longest period of time she spent responding to an email was 30 minutes. On any one day, the longest time she spent responding to emails was one hour and 45 minutes (25 July 2018). She said that overall, between 23 July and 7 September 2018, she undertook 640 minutes of work.

1. Ms O’Beirne also claims that the work she performed was overtime pursuant to the recall provision in clause 28.4 of the Social, Community, Home Care and Disability Services Industry Award 2010 (Award), which states that an employee recalled to work overtime after leaving the employer’s premises will be paid for a minimum of two hours’ work, and that this amounted to 20 periods of 2 hours for which she should be paid.

1. Mr Nott gave evidence that the company granted Ms O’Beirne leave without pay, in response to her request for such leave, and that the company did not expect or require her to undertake any work during this period. He said that he would consider it unethical for the company to require her to work during a period of unpaid leave, and also impractical for her to do so. Of his meeting with Ms O’Beirne, he said that he did not agree that she would perform work ‘off-site’, or that she was the ‘off-site manager’ of the relevant projects. Rather, he said that they agreed to keep in touch. He said that responsibility for her two projects was allocated to other people.

1. In relation to the strategy document, Mr Nott said that it recorded the actual manager who was responsible for the projects in Ms O’Beirne’s absence, and that the reason the strategy document referred to an ‘off-site owner’ was to note that Ms O’Beirne would retain responsibility for the relevant projects on her return. Ultimately however, her position was made redundant. Mr Nott also said that Ms O’Beirne did not make a claim for any payment in respect of work undertaken during her period of unpaid leave prior to bringing her unfair dismissal claim. He said that the company did not authorise or require her to perform work during this period.

1. I accept the evidence of Mr Nott that the company did not require Ms O’Beirne to work during this period. Ms O’Beirne could have ignored her emails and not responded to messages from colleagues. She did not allege that Mr Nott, to whom she reported, required her to work during her absence. The grant of her leave without pay was not conditional on her agreeing to work from time to time. I accept Ms O’Beirne’s evidence that she read and responded to emails during the period of unpaid leave, but it was not work that she was required by the company to perform.

1. The fact that a period of leave is described as unpaid, and is in fact unpaid, does not necessarily mean that it is at law a period of unpaid leave. If an employee were required to work during such a period, and then was not paid, it would be inapt to describe the period during which the work was performed as leave without pay. However, Ms O’Beirne’s checking of emails and responding to many of them does not in my view change the character of her period of leave. She could have turned off her device. She was granted unpaid leave to travel in Europe. I find no evidence of her being required or expected to work.

1. I also find it significant that Ms O’Beirne did not make any claim for payment in respect of work said to have been undertaken while she was in Europe. Nor did she express any concern to the company about receiving messages or being diverted from her travelling and personal pursuits. The day on which she spent most time reading and sending emails was 25 July 2018, however it was not until many months later when filing her unfair dismissal application that she sought to characterise this as work.

1. Ms O’Beirne’s interest in her work and desire to assist her colleagues during her period of unpaid leave is commendable however I do not consider that she was rendering service at this time. Her long period of unpaid leave does not count towards her period of service.

1. I note that, if Ms O’Beirne wishes to press her claim that she was underpaid, she will need to do so in a court. The Commission does not have power to determine such claims. However, I find it difficult to see how clause 28.4 of the Award would be enlivened. I do not see that Ms O’Beirne was ‘recalled to work overtime’ while travelling in Europe.

Conclusion

1. For the reasons given above, I find that Ms O’Beirne has not completed the minimum employment period of at least six months. She is therefore not a person protected from unfair dismissal, and her application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

T. O’Beirne for herself

B. Nott for Spectrum Migrant Resource Centre Limited

Hearing details:

2018

Melbourne

7 December

<PR703276>

[1] Section 390

[2] Section 382(a)  

[3] Section 383

[4] See Acts Interpretation Act 1901, s 36, as in force on 25 June 2009 (and s 40A of the Fair Work Act 2009)

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