FWA 4540
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr John Webster
Toni and Guy Port Melbourne Pty Ltd T/A Toni and Guy Port Melbourne
MELBOURNE, 18 JUNE 2010
Jurisdiction – minimum employment period.
 The Applicant Mr John Webster was represented by Mr Gary Dircks and the Respondent Toni and Guy Port Melbourne Pty Ltd were represented by Mr Nick Tindley of the National Retail Association.
 There is no dispute that the employer is a national system employer of less than 15 full time equivalent employees. There is no dispute that the Applicant was dismissed by the Respondent on 13 March 2010. The Applicant is protected from unfair dismissal under the Fair Work Act 2009 (Section 382) if it is established that he had at least 12 months continuous service with the Respondent.
 The Applicant was employed by the Respondent from February or early March 2009 until 13 March 2010. There is no dispute that this constitutes a period of continuous service. The Respondent says that employment commenced on 3 March 2009 whilst the Applicant says that it commenced in February 2009. The Applicant worked for Toni and Guy in the UK and Holland for a number of years and then came to Australia under a Section 457 visa with Toni and Guy Brighton and then in early 2009 commenced working with both the Toni and Guy Armadale and Toni and Guy Port Melbourne. He then worked exclusively for Toni and Guy Port Melbourne (the Respondent) from early March 2009.
 In response to questions from the Tribunal the Respondent says that the Toni and Guy operations are separate franchises and that they are not associated entities as defined by Section 50AAA of the Corporations Act 2001 and therefore that service with a different Toni and Guy operation cannot count towards the minimum employment period. The Applicant does not raise any argument or evidence to the contrary.
 The Applicant was absent from work as a result of a motorcycle accident from on or around 12 April 2009 to on or around 10 May 2009. He was not paid by the employer during this period as he was not entitled to paid personal leave but he was paid by the Transport Accident Commission. The employer authorised the absence but did not pay the Applicant during this period.
 There is no dispute that if the period of authorised absence due to the motorcycle accident does count towards the period of continuous service then the Applicant had at least 12 months continuous service and he is protected from unfair dismissal. There is also no dispute that if the period of absence due to the motorcycle accident must be discounted from the period of continuous service then the Applicant did not have 12 months continuous service at the time of the dismissal and he is not protected from unfair dismissal.
 The period of employment for the purposes of unfair dismissal jurisdiction is defined in Section 384 as follows:
(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.”
 The term continuous service is defined in Section 22 of the Act. The Explanatory Memorandum for the Fair Work Bill 2008 at paragraph 103 states that “Clause 22 defines the meaning of service and continuous service in general terms that apply to the Bill as a whole (including the NES), and also in the specific context of identified Divisions of the NES where a particular meaning is required.” There is no alternative definition of service or continuous service associated with Part 3-2 of the Act which deals with unfair dismissals and hence there is no doubt that Section 22 applies. The relevant part of Section 22 is as follows:
“22 Meanings of service and continuous service
(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) 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) 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.
(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.”
 There are no regulations which have been made for the purpose of paragraph 2(c) or 2(b)(iii).
 Mr Dircks for the Applicant suggested that I should have regard to Regulation 3.10 Temporary Absence – illness or injury (Fair Work Regulations 2009). This regulation defines the kinds of illness or injury which can be taken into account for the purposes of Section 352 of the Act which prohibits the dismissal of an employee because that employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations. This regulation is specifically “for Section 352 of the Act”. Further Section 352 of the Act is in a different Part of the Act; namely Part 3-1 General Protections not Part 3-2 Unfair Dismissal. I can see no basis for an argument that Regulation 3.10 is a regulation which prescribes periods of unpaid leave or unpaid authorised absence which are exempted from Section 22(2)(b). Regulation 3.10 does not mention the term “unpaid leave or unpaid authorised absence”.
 Hence the matter comes down to a question: Is the period of absence due to the motorcycle accident a period of unpaid leave or unpaid authorised absence?
 Mr Dircks for the Applicant argues that because the Applicant was paid by the Transport Accident Commission it is not unpaid leave or unpaid authorised absence. I think it is clear that the terms paid or unpaid for the purpose of this Section clearly refer to a payment by or on behalf of the employer. Otherwise if an employee came to work for one day following hiring and was then off work due to illness for 12 months and was in receipt of some form of social security benefits during that period they could be described as being on paid not unpaid leave and would be entitled to unfair dismissal protection. I do not think that the legislation can be read in this manner. The explanatory memorandum (paragraph 105 of the Explanatory Memorandum Fair Work Bill 2008) says that unpaid carers leave and unpaid parental leave are examples of unpaid leave for the purpose of Section 22. Clearly the Act regards unpaid carers leave and unpaid parental leave as being periods when the employee is not paid by the employer even if they are in receipt of payments from elsewhere. I cannot see how unpaid sick leave is different from unpaid parental leave in this context. The employer in this case is not making any payments to the employee either directly or indirectly. The payments in this case come directly from the Transport Accident Commission. If the payments came from the employer it would be a different matter.
 I can see no basis on which I can regard the period when the Applicant was not entitled to and did not receive any paid leave for the period he was off work due to the motorcycle accident as anything other than a period of unpaid leave or unpaid authorised absence.
 For this reason I find that the Applicant did not have the minimum 12 month period of continuous service and hence does not have access to unfair dismissal protection. The jurisdictional objection of the Respondent is upheld and Mr Webster’s application for an unfair dismissal remedy is dismissed. I Order accordingly.
Mr Tindley for the Respondent.
No appearance for the Applicant.
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