[2012] FWA 3817 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Ashley Wales
v
3 Point Motors Pty Ltd T/A 3 Point Motors
(U2012/4775)
COMMISSIONER JONES |
MELBOURNE, 22 MAY 2012 |
Jurisdictional objection -
Introduction
[1] On 7 February 2012 an application was made by Mr Ashley Wales (the Applicant) under s.394 of the Fair Work Act (the Act) for relief from unfair dismissal
[2] In the Employer’s Response to the Application for Unfair Dismissal Remedy (Form F3), the Respondent recorded that it had a jurisdictional objection; namely that the Applicant had not served the minimum employment period under s.382(a) of the Act.
[3] Both parties were self-represented at the hearing convened to deal with the Respondent’s jurisdictional objection. Mr Roupas, General Sales Manager, represented the Respondent at the hearing. Following the hearing, directions were issued to the Respondent to file relevant documents and an opportunity was provided for both parties to make submissions in relation to the material produced 1. Mr Roupas was also afforded the opportunity to bring further evidence if he so chose. Mr Roupas subsequently advised Fair Work Australia (FWA) that he declined to take this course.
Legislation
[4] The relevant provisions of the Act are sections 22, 23, 382, 383 and 384:
Section 382 of the Act relevantly provides:
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.
Section 383 of the Act provides:
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.
Section 384 of the Act relatively provides:
(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.
.....................................
Section 22 of the Act relevantly provides:
22 Meanings of service and continuous service
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) 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.
Section 23 of the Act relevantly provides:
[5] The Respondent stated in its Form F3 that it employed 73 employees at the time the Applicant was given notice of dismissal. I am, therefore, satisfied that the Respondent is not a small business within the meaning of s.23 of the Act.
[6] The Applicant contended that he had been employed for a period of 6 months and two days. 2 This submission is based on the following approach to the calculation of the minimum period:
“Given a year’s employment is 52 weeks, then 6 months employment is 26 weeks.
Given I was employed on Monday 25th July 2011; my 26 week anniversary of employment fell due on Monday 23rd January 2012.
As I was sacked on Wednesday the 25th January 2012, that would be 6 months and two days continual employment.”
[7] The correct approach to the calculation of the minimum period of employment is to ascertain the actual period of employment between the commencement date of employment and the time when the person is given notice or immediately before dismissal.
[8] In the Applicant’s case, the date of commencement of employment was 25 July 2011. The date he was given notice is the date he was dismissed; namely 25 January 2012. 3
[9] As the Respondent is not a small business within the meaning of the Act, the requisite period of continuous service the Applicant must have served with the Respondent to be a protected person is 6 months.
[10] I am satisfied that, the difference between the date the Applicant commenced employment with the Respondent (25 July 2011) and the date he was notified of his dismissal (25 January 2012) is 184 days or 6 months.
Respondent’s Submission
[11] The Respondent concedes that, were the Applicant’s employment during the period 25 July 2011 to 25 January 2012 continuous, he would have been employed for the requisite 6 month period.
[12] The Respondent argues, however, that the Applicant’s employment has not been continuous during this period because the Applicant:
[13] The Respondent submits each of these periods of leave and rostered days off should be excluded from the calculation of the Applicant’s service with the Respondent. Consequently it is argued, the Applicant’s employment with the Respondent was less than 6 months and the Applicant’s application for relief from unfair dismissal should be dismissed.
[14] The copy of the payslip for the pay date 4 January 2012 discloses that the Applicant was paid for his 28 ordinary hours of work for the week.
Issues to be determined
[15] The issue to be determined is whether any of the dates referred to at [12] above constitute periods of unauthorised absence of unpaid leave or unpaid unauthorised leave and, therefore, are to be excluded from the calculation of the minimum employment period.
[16] It must be observed that if any of the periods identified by the Respondent do not count as service pursuant to s.22 of the Act, the Applicant will not have had completed the requisite period of continuous service; namely 6 months or 184 days.
Consideration
Annual Leave - 28 December 2011 to 2 January 2012
[17] The Respondent submits that, while it approved the Applicant’s claim for annual leave, the Applicant was not entitled to leave as he had not served a continuance period of six months. The Respondent stated it agreed to annual leave “under objection”. 4 Although the Respondent referred to this period of annual leave in its written submissions as being “annual leave between 28th December 2011 and 2nd January 2012”,5 in the course of the hearing it emerged that the Respondent disputed that the day Saturday, 31 December 2011, was part of the Applicant’s annual leave. The Respondent submitted that the Applicant was not at work on the Saturday.6
[18] In accordance with directions issued at the completion of the hearing, the Respondent filed a copy of the Leave Application form completed by the Applicant and a copy of the Applicant’s payslip for the pay date 4 January 2012
[19] The form discloses that the Applicant claimed three days annual leave being 28, 29 and 30 December 2011; one public holiday being 2 January 2012 and one day leave without pay being 31 December 2011. Mr Roupas stated at the hearing that the leave was authorised by the Respondent.
[20] I am satisfied that:
[21] Although I accept that the leave authorised by the Respondent, included one day without leave, the documentary evidence filed by the Respondent is clear; namely that the Applicant was paid for the day claimed by the Applicant as unpaid leave, namely 31 December 2012.
[22] Section 22 of the Act provides that any period of unauthorised absence and any period of unpaid leave or unpaid authorised absence do not count as service (subject to exclusions not relevant here).
[23] I have found that, the absence by the Applicant on 31 December 2011 was authorised and was paid by the Respondent. Consequently, that day counts as service within the meaning of s.22 and for the purpose of s.384 of the Act.
Unpaid Leave - 31 August 2011
[24] The Respondent submits that on 31 August 2011, the Applicant took unpaid sick leave because by that date the Applicant had not accrued sick leave entitlements of 7.6 hours.
[25] There is no dispute that the Applicant’s ordinary daily hours were 7.6 hours a day.
[26] The Applicant agrees that on 31 August 2012, he took a days sick leave. The Respondent has provided from its payroll systems, documentary evidence that as 31 August 2011, the Applicant had accrued 6.33 hours entitlement to sick leave. The Respondent also provided a copy of the Applicant’s payslip for the end date 7 September 2011. The payslip discloses that the Applicant was paid for 6.33 hours on 31 August 2011.
[27] Having regard to the evidence I find that:
[28] The Act provides that a person is protected from unfair dismissal if, at the time of the dismissal, the person has completed at least a minimum employment period. In the case of employers, who are not a small business, the minimum employment period is set at 6 months. The 6 month period is the threshold requirement and there is no discretion under the Act for this to be varied.
[29] I have found that a proportion of the Applicant’s ordinary hours (1.27 of a 7.6 hour day) was unpaid. The effect of s.22(2)(b) of the Act, is that this proportion is not to be counted as service.
[30] Discounting the period of unpaid leave from the Applicant’s service with the Respondent, means that the Applicant has served a continuous period of 183 days and 6.33 hours which is less than 184 days or 6 months with the Respondent.
[31] Having found that the Applicant has not completed the minimum employment period of at least 6 months with the Respondent , by reason of the unpaid period of sick leave on 31 August 2011, it is unnecessary to consider further the other periods identified by the Respondent as period to be discounted as service (see at [12]).
[32] The Applicant’s application for relief from unfair dismissal is dismissed. An Order to this effect shall be issued today.
COMMISSIONER
Appearances:
Mr Ashley Wales - Applicant
Mr Sam Roupas - Representative of the Respondent
Hearing details:
2012
Melbourne
May, 4
Final written submissions:
The Respondent filed its final written submission on 8 May 2012 and 17 May 2012; and
The Applicant filed his final written submission on 17 May 2012;
1 The Respondent filed its documents and submissions on 8 May 2012, the Applicant filed his submission on 17 May 2012 and the Respondent filed a further submission in response on 17 May 2012
2 Applicant’s Written Submission - 17 May 2012 at p.4
3 Transcript of Hearing - 4 May 2012 at PN 8 to PN11
4 Respondent’s Written Submission dated 21 March 2012
5 Ibid
6 Transcript of Hearing - 4 May 2012 at PN268
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