Zoe Corner v SkyCity Adelaide Pty Ltd
[2010] FWA 9259
•7 DECEMBER 2010
Note: An appeal pursuant to s.604 (C2010/6035) was lodged against this decision - refer to Full Bench decision dated 15 February 2011 [[2011] FWAFB 955] for result of appeal.
[2010] FWA 9259 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Zoe Corner
v
SkyCity Adelaide Pty Ltd
(U2010/11654)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN | ADELAIDE, 7 DECEMBER 2010 |
Termination of employment - jurisdiction - section 383 - minimum employment period - commencement of employment.
[1] This decision deals with the question of whether an application for relief lodged pursuant to section 394 of the Fair Work Act 2009 by Ms Corner with respect to the termination of her employment with SkyCity Adelaide Pty Ltd (SkyCity), must be dismissed on jurisdictional grounds.
[2] Ms Corner's application was lodged with Fair Work Australia on 19 August 2010. On 21 September 2010 SkyCity lodged an objection to the application on the basis that Ms Corner was employed on 8 February 2010, that she commenced her first shift on 9 February 2010, and was dismissed on 7 August 2010, such that she had not completed the necessary minimum employment period so as to allow the application to proceed. This matter was referred to me on 5 November 2010.
[3] This jurisdictional matter was the subject of a hearing on 17 November 2010. At this hearing, Ms Corner was represented by Mr Wright of the Liquor, Hospitality and Miscellaneous Union (LHMU) and SkyCity by Mr Holland of counsel.
[4] Section 382 states:
“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; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
[5] Section 383 defines the minimum employment period in the following terms:
“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.”
[6] SkyCity is a very large employer. Consequently, to be able to pursue her application, Ms Corner must have completed at least six months employment at the earlier of the time at which she was given notice, or immediately before the termination of her employment.
[7] Ms Corner asserts that the jurisdiction to pursue the application exists on the basis that:
- the contract of employment was formed on 5 February 2010, as opposed to 8 February 2010
- inadequate notice of the termination of Ms Corner's employment was provided to her consistent with the National Employment Standards, and accordingly, the termination of her employment could not be said to apply from 7 August 2010, and
- even if Ms Corner's employment commenced on 8 February 2010 and the termination of her employment took effect on 7 August 2010, that period is exactly 6 months.
[8] SkyCity disputes each of these arguments. I have considered the SkyCity position in the course of considering the facts of the matter.
[9] In considering the background to the application I have taken into account the evidence of Ms Corner, LHMU Organiser, Mr Inglis, together with the evidence of the SkyCity Human Resources Manager, Mr Tannock, its Senior Human Resources Adviser, Ms Bastian, Human Resources Administrator, Ms Quaziz and Table Games Training Manager, Ms Rosevear. I have also considered the documentation provided to me.
[10] I have summarised this background in the following terms.
[11] Ms Corner responded to a SkyCity internet-based invitation for applicants to undertaker Blackjack dealer training. This advertisement related to an unpaid five-week training school commencing on 4 January 2010. The advertisement relevantly stated:
“Successful completion of the training course and eligibility in obtaining a Casino Employee Licence, GUARANTEES a permanent, part-time position at Adelaide Casino, where you will start the most exciting and rewarding career imaginable” 1.
[12] Ms Corner was subsequently interviewed and verbally advised that she was selected for the Training Course. She successfully undertook this course which involved periodic and final assessment. During this time her application for a casino licence and requisite police clearances were processed.
[13] The SkyCity general practice is that towards the conclusion of this course, when it is aware that the casino licence has been or will be granted by the independent Commissioner for Liquor and Gambling and is satisfied with the training progress, it issues the training course participants with a written offer of employment. This offer specifies a start date and employment conditions. It requests that the offer be signed and returned to the Casino. SkyCity assert that this offer was provided to Ms Corner and the other persons in her training group on, or around 2 February 2010. Whilst signed copies of other offers have been provided to me, there is no dispute that Ms Corner did not return a signed copy of this offer.
[14] Ms Corner's initial position was that she did not receive the offer. In the hearing, she acknowledged receipt only of the first page of the four-page document. Whilst this first page has not been provided to me, I note that the offers of employment which apply to the other persons in that training group all referred to a commencement date of 8 February 2010. I also note that these offers of employment specify a probationary period of six months and referred to documentation relative to superannuation, employee details, banking and Tax File Number declarations. There is no suggestion that Ms Corner did not submit this information.
[15] Consistent with the normal SkyCity approach, Ms Corner received a Certificate of completion of Blackjack training and attended a welcoming function on the evening of 5 February 2010.
[16] Mr Inglis, the LHMU Organiser with responsibility for the SkyCity LHMU members gave evidence to the effect that he was invited to meet with the graduating trainees on Friday 5 February 2010 and that consistent with his normal approach on these occasions, he invited those persons to become members of the LHMU as he understood that they were, at that time, employed by SkyCity.
[17] The evidence of Mr Tannock and Ms Quaziz was that SkyCity specified a nominal employment commencement date of 8 February 2010 but that Ms Corner worked her first shift on 9 February 2010. At the commencement of this shift Ms Corner signed for, and collected her Casino Licence card, without which she was unable to work.
[18] Ms Corner worked at the Casino until suffering a compensable workplace injury in July 2010.
[19] The termination of Ms Corner's employment came about following concerns over her work performance which were raised with the SkyCity human resource management personnel on 4 August 2010. That human resource management function took action to effect the termination of employment before the anticipated expiry of the six-month probationary period. SkyCity wrote, and couriered a letter to Ms Corner requesting that she meet on 6 August 2010 to discuss her performance on probation. This letter indicated that termination of employment was possible and that Ms Corner could bring a witness or support person for this meeting. Ms Corner requested representation from the LHMU. Following a request from the LHMU to SkyCity, the meeting with Ms Corner was rescheduled for 7 August 2010. Ms Corner received a further letter to that effect.
[20] At the meeting on 7 August 2010, SkyCity terminated Ms Corner's employment with effect from that day. Ms Corner was given one week's pay in lieu of notice. This termination of employment was confirmed in writing on 9 August 2010.
Findings
[21] As a matter of convenience, I have initially considered when the termination of Ms Corner's employment occurred for the purposes of section 383.
[22] On the material before me this termination of employment occurred on 7 August 2010 when SkyCity advised Ms Corner, in the presence of her union representative, that she was dismissed with one week’s pay in lieu of notice.
[23] I am not persuaded that this termination of employment, on the basis of the payment of one week's notice, was inconsistent with the provisions of the LHMU/SKYCITY Adelaide Casino Collective Agreement 2009 which regulated Ms Corner's employment, or that it was inconsistent with the Notice of Termination provisions which form a National Employment Standard at section 117 of the Act. In any event, a breach of either provision must be a matter to be considered in its own right and cannot deem the employment to continue beyond the time of termination specified by the employer.
[24] The issue then to be determined is whether Ms Corner had completed six months employment as at 7 August 2010.
[25] Ms Corner's position is that as at 5 February 2010 she had fulfilled all the necessary prerequisites such that the guarantee of employment as set out in the training course advertisement had come into effect. In this respect she says she had completed the training course and was eligible to obtain a Casino licence such that an employment contract existed at that date.
[26] Ms Corner relied on a number of authorities to support her position.
[27] Before addressing this particular issue, I have set out my conclusion with respect to the standing of the offer of employment. I consider that it is most likely that this offer was provided, in its entirety, to Ms Corner on, or around 2 February 2010. In reaching this conclusion, I have had regard to the extent to which Ms Corner's initial position changed such that she later acknowledged receipt of the first page of this offer around that time. Further, the requirement to complete documentation relative to superannuation and employee details, including banking and Tax File Numbers is referenced on the last page of this offer and there is no question that Ms Corner complied with this requirement. Finally, there is no doubt that the employment offer was handed out to other members of Ms Corner's training group and I am not persuaded that she was treated differently in this regard.
[28] It follows then, that Ms Corner's first attendance for work on 9 February 2010 most likely represented an action which reflected her acceptance of the employment offer provided to her on or around 2 February 2010. However, notwithstanding this conclusion, the fact of the matter is that Ms Corner did not sign and return the offer of employment which confirmed an initial commencement date of 8 February 2010.
[29] In these circumstances it is necessary that I reach a conclusion about when her employment commenced.
[30] Amongst other authorities, Ms Corner relied on the decision of a Full Bench of the Australian Industrial Relations Commission in Advanced Australian Workplace Solutions Pty Ltd (Fox v Kangan Bateman TAFE) 2 as authority for the proposition that, as at 5 February 2010, there was an employment contract in existence. This decision relevantly states:
“[49] We have earlier set out the facts in some detail. They clearly show that there was a relationship (a word used by Simmonds C in his decision and a word on which Mr Willoughby-Thomas placed considerable emphasis) between Ms Fox and Kangan. A relationship, however, is not necessarily a contract: see, for instance, the cases to which we refer in the following paragraphs. The elements of a contract are stated in Macken, McCarry and Sappideen's "The Law Of Employment" (4th edition, 1997 by the Hon James Macken, Paul O'Grady and Carolyn Sappideen) (Macken, McCarry and Sappideen), a text to which reference was made both before Simmonds C and us, as follows (p.74):
"The law holds that before any simple contract is enforceable it must be formed so as to contain various elements. These are:
1. There must be an `intention' between the parties to create a legal relationship, the terms of which are enforceable.
2. There must be an offer by one party and its acceptance by the other.
3. The contract must be supported by valuable consideration.
4. The parties must be legally capable of making a contract.
5. The parties must genuinely consent to the terms of the contract.
6. The contract must be entered into for any purpose which is illegal."
In relation to the first of these elements, the learned authors say (p.74):
"The first element essential to the existence of any contract is the requirement that the parties have a mutual intention to create a legally enforceable bargain."
[31] Ms Corner asserted that there was a clear intention to create an enforceable legal relationship. The training course offer was accepted by her and her attendance at this course on an unpaid basis should be regarded as consideration. Ms Corner asserts that the remaining criteria are clearly met.
[32] The intention of the parties is critical to this issue. The training course advertisement represented the guarantee of a permanent part-time position if Ms Corner successfully completed the training course and obtained a Casino employee licence. I am unable to regard this as an intention that an employment arrangement was automatically created immediately those preconditions to employment were met. Rather, it was a guarantee of an offer of employment, provided those preconditions were met.
[33] There was an intention to contract in the sense that SkyCity agreed with Ms Corner that it would guarantee her part-time employment if she met those two specified conditions. This is different to an intention that Ms Corner was considered to be employed from the time she completed the training course. It is best described as an intention or guarantee to provide employment rather than an intention that she would be employed from that time.
[34] The employment offer as it was set out in the training advertisement and again in the offer of employment was conditional on Ms Corner completing the training course and obtaining her Casino licence. As at 5 February 2010 Ms Corner had completed the training course but her Casino licence was, at that time, held by the Casino. It was not until she commenced work on 9 February 2010 that Ms Corner actually possessed her Casino licence. This is consistent with payments being made to her for her work from that date.
[35] Additionally, section 15 of the Act supports the differentiation of Ms Corner’s position from that of an employee in terms of the definition of an employee. This section states:
“15 Ordinary meanings of employee and employer
(1) A reference in this Act to an employee with its ordinary meaning:
(a) includes a reference to a person who is usually such an employee; and
(b) does not include a person on a vocational placement.
Note: Subsections 30E(1) and 30P(1) extend the meaning of employee in relation to a referring State.
(2) A reference in this Act to an employer with its ordinary meaning includes a reference to a person who is usually such an employer.
Note: Subsections 30E(2) and 30P(2) extend the meaning of employer in relation to a referring State.”
[36] A "vocational placement" is defined in section 12 of the Act in the following terms:
“vocational placement means a placement that is:
(a) undertaken with an employer for which a person is not entitled to be paid any remuneration; and
(b) undertaken as a requirement of an education or training course; and
(c) authorised under a law or an administrative arrangement of the Commonwealth, a State or a Territory.”
[37] There was clearly no contractual entitlement for Ms Corner to be paid while she undertook the training course such that I am unable to characterise her as an employee on the last day of this training course when she and SkyCity were acknowledging her successful completion of the course and impending employment arrangements.
[38] Consequently, I have concluded that Ms Corner and SkyCity entered into an arrangement which related to vocational training on the basis that, when this training was completed and her Casino licence been approved, she would be offered employment. An employment offer was provided to Ms Corner and, irrespective of the fact that this was not returned, by commencing work on 9 February 2010, Ms Corner effectively confirmed her agreement to employment on the terms offered to her.
[39] Absent Ms Corner's specific confirmation of the employment offer which specified a nominal employment start date of 8 February 2010, I must therefore take her employment to have commenced on 9 February 2010 when she commenced work.
[40] As a consequence, I reject Ms Corner’s first argument to the effect that her employment commenced on 5 February 2010.
[41] I have already dealt with the second proposition that the termination of Ms Corner's employment was flawed such that she remained employed for a time after the termination advice of 7 August 2010. I have concluded that the termination advice was consistent with SkyCity’s legal obligations but that, irrespective of this, the employment termination occurred on 7 August 2010.
[42] The final proposition put to me by Ms Corner is that the six months minimum employment period specified in section 383 should be applied such that, if Ms Corner's employment commenced on 8 February 2010 and was terminated on 7 August 2010, this was exactly 6 months.
[43] Given my finding that the termination of Ms Corner's employment occurred on 7 August 2010, this issue only becomes relevant if Ms Corner's employment commenced on 8 February 2010. As I have concluded that it is most likely that her employment commenced on 9 February 2010 because she did not sign and return the offer of employment with its 8 February 2010 start date, I have considered this matter only to the extent that it is argued that, had the employment commenced on 8 February 2010 the six months was complete.
[44] The means of calculating the six-month minimum employment period set out in section 383 was considered as some length by Richards SDP in Prigge v Manheim Fowles Pty Ltd 3. Notwithstanding the urging of Ms Corner's advocate, I endorse the approach adopted by His Honour in that matter and consider that, even if Ms Corner was taken to be an employee as at 12.01am on 8 February 2010, the minimum employment period could not have been completed until 12.01am on 8 August 2010.
Conclusion
[45] For the reasons set out above I do not consider that Ms Corner has access to an unfair dismissal remedy in that she had not completed the minimum employment period at the time of the termination of her employment.
[46] Accordingly, the application for relief must be dismissed. An Order (PR504737) to this effect will be issued.
SENIOR DEPUTY PRESIDENT
Appearances:
A Wright of the Liquor, Hospitality and Miscellaneous Union for the Applicant.
L Holland counsel for the Respondent.
Hearing details:
2010.
Adelaide:
November 17.
1 Exhibit C2
2 Print S0253
3 [2010] FWA 28
Printed by authority of the Commonwealth Government Printer
<Price code C, PR504554>
0