Vladimir Shapkin v Thorn Australia Pty Ltd

[2020] FWC 2123

[2020] FWC 2123

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vladimir Shapkin
v
Thorn Australia Pty Ltd
(U2020/4369)

COMMISSIONER BISSETT MELBOURNE, 29 APRIL 2020

Application for an unfair dismissal remedy – minimum employment period – dismissal under s.587 at the Commission’s initiative – application dismissed.

[1] Mr Vladamir Shapkin (Applicant) has made an application for unfair dismissal to the Fair Work Commission. In his application he indicated that he commenced employment with Thorn Australia Pty Ltd (Respondent) on 6 January 2020 and his employment was terminated on 1 April 2020 with effect from 6 April 2020.

[2] The application was filed in the Commission on 7 April 2020. On its face it appeared that the Applicant had not served the minimum employment period necessary to enable a valid application to be made. As is normal practice on receipt of such applications a Commission staff member contacted the Applicant on 8 April 2020 on his nominated telephone number with respect to his application. The call was not answered but a voicemail was left indicating that an email would be sent to the Applicant with respect to his employment period with the Respondent.

[3] A letter was sent to the Applicant by email on 8 April 20120 informing the Applicant that he did not appear to have completed the minimum employment period. He was given 14 days to provide the Commission within any documents or evidence to support this claim that he had served the minimum employment period.

[4] Late in the evening of 8 April 2020 the Applicant telephoned the Commission and left a voicemail message indicating that he had listened to the message left by the Commission and clarifying the email address to which he should send his reply.

[5] On 22 April 2020 the Commission received submissions from the Applicant that he says supports his claim that the Commission has jurisdiction to hear his application.

[6] On 23 April 2020 my chambers sent an email to the Applicant indicating that his written submissions had been received and the matter referred to my chambers for decision. The email stated that:

Your application for relief from unfair dismissal has been referred to Commissioner Bissett, Practice Leader Unfair Dismissals.

The Commissioner thanks you for your submissions and intends to make a decision in due course…

Submissions

[7] The Applicant was employed by the Respondent pursuant to a contract of employment as a paralegal. The contract of employment (provided by the Applicant) stated that the “position is a Fixed Term Contract effective 06/01/2020 until 06/04/2020.” The contract also contained a termination clause which stated that:

This agreement may be terminated by either party providing:

•  two weeks_ notice up to six months; or

•  four weeks_ notice after the six months of service.

[8] On 1 April 2020 the Applicant received an email from the Respondent which said:

Vladimir,

As you are aware, your contract with Thorn ends next Monday, 6 April 2020.

I am happy for you to finish up earlier on Friday (you would still be paid until Monday). Please let me know your preference.

Before Monday, you will need to physically return your equipment, namely your laptop, charger, mouse and Thorn security pass. Our Chief Financial Officer is continuing to work in the office as are members of our Finance and IT teams, so you will be able to easily obtain access to return the equipment.

Your final pay will be paid as per Thorn’s standard fortnightly pay next week.

I am happy to sign your College of Law form – please send it to me and I will return it to you next week.

You may also like to request a statement of service and/or a separation certificate. People Services can assist you with this – please just email them.

I would like to thank you for all your hard work since you joined Thorn in January. I hope you have gained some useful experience from working at Thorn, and I would like to wish you luck and success in the future…

[9] The Applicant says that, even though he put 1 April 2020 as the date he was notified of his dismissal, the “purported notice of dismissal dated 1 April 2020” is invalid and therefore of no effect and the inclusion of 1 April 2020 on his application for unfair dismissal is not an admission on his part that the notice is valid.

[10] The Applicant further says that his employment contract is not a fixed term contract for a specified period as it contained a right to terminate the contract with notice. Further, he says that the notice given to him of 1 April 2020 is not the notice required by the termination clause of the contract which requires 2 or four 4 weeks’ notice.

[11] The Applicant also submits that where a contract provides a notice period for termination greater than that specified in the FW Act then the contract prevails over the FW Act and in order to validly terminate his employment 4 weeks’ notice is required to be given by the Respondent. This did not occur.

[12] The Applicant then submits that:

•  A dismissal takes effect either when the person is given notice of dismissal or when the dismissal takes effect, whichever is earlier;

•  The contractual date of 6 April 2020 is not the date the dismissal took effect because there was no valid notice of dismissal and the contract was not a contract for a specified period;

•  He was not validly notified of his dismissal;

•  His employment was not broken by the invalid notice of 1 April 2020;

•  His contract has a probation period of 6 months;

•  Unless the contract was validly terminated it continues until such valid termination; and

•  Unless the contract is validly terminated within 6 months (which requires 2 weeks’ notice) prior to the end of the probation period, employment continues until the end of probation at which point in time 4 weeks’ notice of termination is required.

[13] For these reasons the Applicant submits he was entitled to 6 months probation and 4 weeks’ notice and the dismissal could not occur until 6 months had expired in which case he would have satisfied the minimum employment period.

Consideration

[14] Section 394 of the FW Act states that:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

[underlining added]

[15] Section 382 of the FW Act states that:

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;…

[underlining added]

[16] The minimum employment period is set out in s.383 of the FW 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.

[17] The submissions of the Applicant in this case are novel. However, they do not advance his position that he has completed the minimum employment period required by the FW Act to enable a valid application for unfair dismissal to be made.

[18] I note the quite specific requirement of s.382 of the FW Act that the minimum employment period must have been served at the time the person is given notice of dismissal or is dismissed (whichever is earlier). This much is clear from the introductory words of s.382 read in conjunction with s.383 of the FW Act that a person is protected from unfair dismissal (and hence able to make an application) at a particular time if at that particular time the person has completed the minimum employment period.

[19] At the time the Applicant made his application to the Commission he had not served the minimum employment period. That much is clear. He is, therefore, not protected from unfair dismissal. Alternatively, on the Applicant’s submissions, at the time the Applicant made his application to the Commission he had not been dismissed in which case he does not have grounds to make an application.

[20] If the Applicant was dismissed on 1 April 2020 with effect from 6 April 2020 (although I note he claims the notice of dismissal not to be valid) then he has not served the minimum employment period required by the FW Act as required by s.382 of the FW Act.

[21] As to whether the notice was a valid notice of dismissal I would observe that the FW Act defines a dismissal for the purposes of Part 3-2 of the FW Act. It seems to me that whether the Applicant considers a notice of dismissal to be valid is not the relevant consideration but rather whether the employee has been terminated on the employer’s initiative. 1 There is nothing that suggests that a “valid” notice of dismissal must be given but rather that, on some initiative of the employer, the Applicant has been dismissed from employment.

[22] If the Applicant’s alternative argument is to be accepted and he cannot be dismissed prior to the serving of his 6 month probationary period then he has not yet been “dismissed” within the meaning of the FW Act and has no grounds on which to make an application for unfair dismissal. This must be the conclusion on the Applicant’s own submissions that he has not been dismissed.

[23] Whilst I note that the Commission has the discretion to accept an application for unfair dismissal made in advance of the actual date of dismissal, 2 the circumstances where the Commission has determined to exercise such discretion have generally been those where an employee has been notified of dismissal with a future date of effect of dismissal (generally following the working of a period of notice) but has lodged an application for unfair dismissal prior to that effective date. In this case the Applicant says he has not been served a valid notice of dismissal. Further, his date of dismissal cannot be known on his submissions. In such circumstances there is no reasonable basis on which the Commission could exercise its discretion to accept an application made prior to dismissal and I decline to exercise my discretion to do so.

[24] If the Applicant is correct and his date of dismissal is 6 months after he commenced employment there is nothing to stop him making an application for unfair dismissal when he is, in his mind, dismissed.

[25] This consideration does not deal with the issue of whether, in fact, the email of 1 April 2020 was in fact notice of dismissal or a reminder of the terms of the contract he had entered into. It is not necessary that I determine this matter.

Conclusion

[26] For these reasons I have decided to dismiss the application for unfair dismissal of the Applicant as he has not served the minimum employment period necessary to make a valid application to the Commission.

[27] Section 587(1) of the FW Act states:

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.

[28] As the minimum employment period has not been met, the application has no reasonable prospects of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An order 3 to this effect will be issued shortly.

COMMISSIONER

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 1   Fair Work Act 2009, s. 386(1)(a).

 2   Mihajlovic v Lifeline Macarthur[2014] FWCFB 1070.

 3   PR718576.