FWA 4058
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Millennium Hi-Tech Group Pty Ltd
BRISBANE, 11 MAY 2012
Application for unfair dismissal remedy - jurisdictional objection - minimum employment period - Application dismissed - Application for security of costs - Application dismissed.
 On 4 August 2011, an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) was made by Christopher Hosking with respect to his dismissal by Millennium Hi-tech Group Pty Ltd (Millennium). The application indicates that Mr Hosking is represented by Mr Graham Banks. An undated Response to the application (Form F3) was filed by Millennium on 17 August 2011. That Response states that there are no jurisdictional objections to the unfair dismissal application.
 The unfair dismissal application was listed for conciliation on 2 September 2011. When the matter was not resolved Fair Work Australia (FWA) issued Directions on 7 October, for a hearing on 12, 13, 14 and 15 December 2011. The Directions required Mr Hosking to file and serve on Millennium, an outline of submissions, witness statements and other documentary material in support of his application for an unfair dismissal remedy, by 31 October 2011. Mr Hosking complied with this requirement and filed material and also sought Orders requiring a number of persons to attend FWA to give evidence and produce documents.
 The Directions also required Millennium to file and serve on Mr Hosking, an outline of submissions, witness statements and other documentary material to be relied on in opposition to that application by 21 November 2011. Millennium did not file and serve material by the required date. Further, Millennium did not communicate with FWA in relation to its failure to comply with the Directions on or prior to the date for compliance.
 On 22 November 2011, Ms Brooks, Claims Manager/In House Counsel for Millennium corresponded with the Tribunal stating that she was not present or instructed at the time of the conciliation of the application on 2 September 2011 and indicating an intention to make a jurisdictional objection to the application and seeking that the objection be heard on 12 December 2011, the date that the hearing of the substantive application had been programmed to commence.
THE JURISDICTIONAL OBJECTION
 On 23 November 2011, Millennium filed a jurisdictional objection to the application on the grounds that Mr Hosking was not a person protected from unfair dismissal on the basis that he had not completed a six month minimum employment period as required by s.382 and s.383 of the Act. Millennium also filed an application for security for payment of costs, in the event that the jurisdictional objection was not decided in its favour.
 The hearing scheduled to commence on 12 December 2011 was cancelled. Further Directions were issued on 25 November 2011 requiring the parties to file and serve outlines of submissions, witness statements and other documentary material in relation to the jurisdictional objection on the ground that Mr Hosking had not served the required minimum employment period and in relation to the application for security for payment of costs. Millennium was required to comply with the Directions by 8 December 2011 and Mr Hoskings by 22 December 2011.
 On 9 December 2011, Mr Banks on behalf of Mr Hosking corresponded with FWA complaining that Millennium had not complied with previous Directions in relation to the unfair dismissal application and was in breach of the further Directions in relation to the jurisdictional objection and application for security for payment of costs. The file indicates that on 21 December 2011 contact was made with Ms Brooks by a member of the FWA Unfair Dismissals Team and Ms Brooks advised that she was unaware that she was required to file any further material in support of the jurisdictional objection, and would either file material by 22 December 2011 or advise FWA whether she wished to simply rely on the material set out in the Objection.
 On 23 December 2011 Ms Brooks sent an email to FWA stating that the application setting out the jurisdictional objection and the application for security of costs were the only documents that would be relied on by Millennium. No material in response to the jurisdictional objection was filed on behalf of Mr Hosking, and it was asserted that Millennium had not filed material to which a response could be provided. On the day prior to the hearing of the jurisdictional objection and application for security for payment of costs, Ms Brooks contacted FWA and indicated that she was unable to appear in person at the hearing and sought to appear by telephone. Given the lateness of the request and the fact that Ms Brooks had indicated that Millennium would be relying only on the material set out in both applications, the request was acceded to.
 At the hearing in relation to the jurisdictional objection and the application for security for payment of costs, Ms Brooks reiterated that she relied on the material set out in the applications. Ms Brooks further stated that she intended to rely on a written employment contract entered into between Mr Hosking and Millennium, wherein Mr Hosking had agreed to a probationary period and a letter of offer of employment signed by Mr Hosking on 1 March 2011. These documents were not tendered, although an unsigned copy of the employment contract was contained in the material filed by Mr Hosking in relation to his application for an unfair dismissal remedy.
 Ms Brooks also referred to the decision of Senior Deputy President Richards in William Rogers v Reflections Group 1, in which she represented the Respondent. Essentially, Ms Brooks submitted that she had not provided witness statements or an outline of submissions in that case, and on that basis saw no requirement to do so in the present case. Ms Brooks also submitted that the facts in the two cases were virtually identical and that FWA as presently constituted should be bound by that Decision.
 Mr Banks on behalf of Mr Hosking submitted that the jurisdictional objection should be dismissed on the ground that Mr Hosking had served the minimum period of employment, because there was a transfer of business between Millennium and the former employer of Mr Hosking such that his employment was continuous. According to Mr Banks, evidence for this proposition was contained in the material filed by Mr Hosking in support of his unfair dismissal application and this should be considered by the Tribunal in determining the jurisdictional objection.
 Neither party made any submissions in relation to the application for security for payment of costs.
 The legislative provisions relevant to the question of whether Mr Hosking had completed the required minimum employment period are 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).
(5) If there is a transfer of employment (see subsection (7)) in relation to a national system employee:
(a) any period of service of the employee with the first employer counts as service of the employee with the second employer; and
(b) the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee’s continuous service with the second employer (taking account of the effect of paragraph (a)), but does not count towards the length of the employee’s continuous service with the second employer.
Note: This subsection does not apply to a transfer of employment between non-associated entities, for the purpose of Division 6 of Part 2-2 (which deals with annual leave) or Subdivision B of Division 11 of Part 2-2 (which deals with redundancy pay), if the second employer decides not to recognise the employee’s service with the first employer for the purpose of that Division or Subdivision (see subsections 91(1) and 122(1)).
Meaning of transfer of employment etc.
(7) There is a transfer of employment of a national system employee from one national system employer (the first employer) to another national system employer (the second employer) if:
(a) the following conditions are satisfied:
(i) the employee becomes employed by the second employer not more than 3 months after the termination of the employee’s employment with the first employer;
(ii) the first employer and the second employer are associated entities when the employee becomes employed by the second employer; or
(b) the following conditions are satisfied:
(i) the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer;
(ii) the first employer and the second employer are not associated entities when the employee becomes employed by the second employer.
Note: Paragraph (a) applies whether or not there is a transfer of business from the first employer to the second employer.
(8) A transfer of employment:
(a) is a transfer of employment between associated entities if paragraph (7)(a) applies; and
(b) is a transfer of employment between non-associated entities if paragraph (7)(b) applies.
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.
Note: High income threshold indexed to $118,100 from 1 July 2011
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.
384 Period of employment
(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.
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;
the period of service with the old employer does not count towards the employee’s period of employment with the new employer.
 The power for Fair Work Australia (FWA) to make an order directing a party to furnish security for costs, is found in s.404 of the Fair Work Act 2009 (the FW Act) which provides:
The procedural rules may provide for the furnishing of security for the payment of costs in relation to matters arising under this Part.
 Rule 16 provides:
16.1 FWA may, on application, make an order directing a person to furnish security for the payment of costs in respect of a matter or part of a matter arising under Part 3-2 of the Act.
Note FWA will not ordinarily make such an order before the conclusion of conciliation.
16.2 The security must be of such amount, and furnished at such time and in such manner and form, as FWA directs.
16.3 FWA may, on further application:
(a) reduce or increase the amount of security directed to be given; and
(b) vary the time at which, or manner or form in which, the security is to be furnished.
16.4 Without limiting any other power which FWA may exercise, if FWA directs a person to furnish security for costs in respect of a matter or part of a matter arising under Part 3-2 of the Act, it may order that the matter be:
(a) adjourned until security is furnished; or
(b) adjourned indefinitely.
 In the Objection to the application for unfair dismissal remedy, it is asserted on behalf of Millennium that:
1. The Applicant had been employed for a substantial period of time with A1 Security at Robina Town Centre.
2. A transmission of business occurred on 1 March 2011 whereby the provision of security guards at Robina Town Centre was taken over by Millennium Hi-Tech.
3. Under the terms of the transmission agreement, a number of security guards employed at the centre, including the Applicant, would continue working as security guards at the centre following the transmission of business, albeit for a new employer.
4. The Respondent commenced the provision of security services at Robina Town Centre on 1 March 2011.
5. On 21 July 2011 the Respondent dismissed the Applicant from its employ.
6. Pursuant to the terms and conditions of the Applicant’s employment a six month probationary period applied from the date of commencement.
7. Accordingly, at the time that the Applicant was dismissed, he was still within a probationary period.
8. Section 382 of the Fair Work Act provides that a person is not protected from unfair dismissal (which in any event is denied) if they haven’t completed the minimum employment period.
9. Section 383 of the Act provides that the minimum employment period is six months.
10. The Fair Work Commission does not have jurisdiction to hear the matter as the Applicant, at the time of his dismissal, was not a person who was protected from unfair dismissal (which is denied) at the time of being dismissed. Rogers v Reflections Group Pty Ltd  AIRC 2.
 The application for security for payment of costs is made on the following grounds:
1. This matter has been set down for a 4 day hearing commencing on 12 December 2011.
2. The Applicant, Hosking, through his representative has called for the attendance of in excess of 13 witnesses to give evidence.
3. The Respondent, Millennium Hi-Tech, has made an Application objecting to the Applicant’s Application for unfair dismissal remedy on the basis that the Fair Work Commission (sic) does not have jurisdiction to hear the matter.
4. Should the Respondent’s Application not be determined in its favour and the matter proceeds to a four day hearing, the Respondent seeks security for costs.
 Those grounds constitute the entirety of the material put before FWA on behalf of Millennium.
 The Application for an unfair dismissal remedy filed by Mr Hosking states that he was employed on a permanent basis from 1 March 2011 to the date of his dismissal on 21 July 2011. The application goes on to state that Mr Hosking commenced employment with Millennium in March 2011, after a period of service of 10 years with the “previous owning company”. The submissions filed on behalf of Mr Hosking in relation to his unfair dismissal application state that Mr Hosking commenced employment with Millennium in March 2011, after a transfer of business between Millennium and A1 Security Pty Ltd, and that Mr Hosking had been in continuous employment with A1 Security for 8 years and the Directors of that Company for a further two years. It is also asserted that Millennium continued Mr Hosking’s employment with a letter of engagement issued to him on 1 March 2011. This letter was not in evidence, nor was it appended to any of the applications or statements in these proceedings or the unfair dismissal proceedings.
 An unsigned copy of a written contact of employment between “Employee Name” and Millennium was appended to the submissions filed on behalf of Mr Hosking in relation to his unfair dismissal application. It is stated in the submission to which this document is appended that Mr Hosking was provided with a copy of that document. It is not clear when this occurred, however in the circumstances of this case, I accept that this is a copy of the contract of employment which at some point was signed by Mr Hosking.
 Relevantly, the contract provides for a three month probationary period which applies to all employees irrespective of role or assignment. The contract further provides that at any time during the three month probationary period, the employee or the employer may, without reason, terminate employment by providing not less than one hours notice.
 Essentially, FWA was faced with statements from both parties that were contradictory to the arguments they were advancing. Mr Hosking stated in his unfair dismissal application that his period of service was between 1 March and 21 July 2011, a period which does not meet the requirements of s.282 and s.283 of the Act. However, in the grounds set out in the unfair dismissal application as to why the dismissal is said to be unfair, Mr Hosking makes reference to continued service of more than 8 years with the previous owning company and a further 2 years with the Directors of that company. The grounds upon which Millennium based its jurisdictional objection, include a statement that there was a transfer of business, but do not address the requirements in the legislative provisions dealing with minimum employment period, or why the transfer of business referred to in the grounds in support of the jurisdictional objection, did not result in a transfer of employment with respect to Mr Hosking as provided in s.22(7) of the Act.
 The submission of Ms Brooks to the effect that FWA should simply follow the decision of Senior Deputy President Richards in Rogers is not helpful, given that case was decided under the former Workplace Relations Act 1996 which contained different legislative provisions. It is also unhelpful that no evidence was called by Millennium from which facts could be established sufficient to apply that decision, even if it was relevant. Further, it is apparent that notwithstanding Ms Brooks’ assertion that no material was required to be filed in support of the jurisdictional objection in Rogers, Senior Deputy President Richards had some factual material before him upon which to base his decision.
 Section 22 of the Fair Work Act 2009 is a general provision which operates in a comprehensive manner, so that unless otherwise specifically indicated in other provisions of the Act, service is continuous in circumstances where there is a transfer of employment. An example of such an exception is found in s.384(2) in relation to casual employees for the purposes of deciding whether a casual employee is protected from unfair dismissal.
 The transmission of business provisions in the former Workplace Relations Act 1996 were not as comprehensive as those in s.22 of the present Act, and dealt with transfer of employer obligations under instruments, rather than continuity of service generally. In Rogers the Applicant employee claimed not to have assented to having his employment transferred and to becoming an employee of the transmittee, and the case was decided on the basis that the employment contract cannot be transferred without the consent of the employee. In the present case, Mr Hosking asserts that he is a transferred employee and that he has continuous service for a period of over ten years, when his service with his former employer and Millennium is aggregated.
 Millennium can point only to a “six month probationary period” in the contract of employment, in the material filed by Mr Hosking in support of his unfair dismissal application, as evidence that he did not have the required minimum employment period. In fact, the contract of employment provided as part of the material filed by Mr Hosking specifies a three month probationary period, and that probationary period had lapsed at the point Mr Hosking was dismissed. In any event, that probationary period could not operate to disentitle Mr Hosking to bring an unfair dismissal application, if his employment was continuous for a period in excess of the required six months. The validity of a one hour notice period for an employee who is not a casual employee is also questionable.
 Millennium, as the applicant in the jurisdictional objection, carried the onus of establishing the grounds for that objection. That onus has not been met. The failure on the part of Millennium to comply with Directions or present any evidence or submissions in support of the Company’s case, was not adequately explained. Indeed, given that Millennium was represented by In-house Counsel, the failures in this regard are inexplicable. On the assertions made by Millennium there was a transfer of business between that Company and Mr Hosking’s previous employer. Mr Hosking has asserted that his employment was continuous for a period of at least ten years. There is no evidence upon which I could be reasonably satisfied that Mr Hosking has not been employed for at least the minimum period.
 I am also of the view that Millennium has not made out a case for an Order for security for payment of costs. For the reasons set out in Harris v Home Theatre Group 2 such an order is discretionary; the exercise of the discretion is considered in light of the fact that costs do not follow the event in matters before FWA; and it is not automatic that an order for costs will be made in an unfair dismissal application. There is nothing in the material on the file to indicate that Mr Hosking’s application for an unfair dismissal remedy was made vexatiously or without reasonable cause or that it should have been reasonably apparent to him that he should not have made the application. The case does not appear to be of the kind where an order for security for payment for costs would be made: the case does not appear to be hopeless or bound to fail, and there is no evidence that Mr Hosking is impecunious such that he could not meet an order for costs in the event that such an order was granted in relation to his unfair dismissal application.
 The jurisdictional objection advanced by Millennium on the grounds that Mr Hosking has not been employed for the minimum period required by s.382 and s.383 of the Act and the application for an order for security for payment for costs made by Millennium are dismissed. A separate Order to that effect will issue with this Decision. The matter will be referred back to the Unfair Dismissal Unit.
Ms A. Brooks on behalf of Millennium Hi-Tech Group Pty Ltd
Mr G. Banks on behalf of Mr Hosking.
1  AIRC 2.
2  FWA 2910
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