[2010] FWA 7321 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Joe Szybkowski
v
Monjon Australia Pty Ltd T/A Monjon Australia Pty Ltd
(U2010/10386)
COMMISSIONER ROE |
MELBOURNE, 17 SEPTEMBER 2010 |
Termination of employment – Jurisdiction- minimum employment period - casual employee: transmission of business.
[1] The matter arises from an application filed on 8 July 2010 under s 394 of the Fair Work Act 2009 (the Act) by Mr Joe Szybkowski (the Applicant) for relief in respect to the termination of his employment from Monjon (Australia) Pty Ltd (the Respondent).
[2] Following an unsuccessful conciliation conference the matter proceeded to arbitration. The Respondent raised a jurisdictional objection that the Applicant had not completed the minimum employment period of six months.
[3] Directions were issued by Fair Work Australia and the matter was heard on 17 September 2010.
[4] At the hearing the Applicant appeared together with a former employee of the Respondent Mr Norman McDonald. Mr Bryan Goudsblom, Chief Operating Officer of the Respondent appeared for the Respondent. A solicitor, Mr Sam Eichenbaum, sought leave to appear for the Respondent and this was objected to by the Applicant. It was not necessary for me to make a decision concerning leave to appear given the way in which I determined to handle the matter.
[5] Having carefully read the submission of the Applicant and the submission of the Respondent and the witness statement of Mr Goudsblom for the Respondent I initially sought confirmation from the parties of some of the basic facts. Having received confirmation of those facts with the consent of the parties I adjourned the matter into conference for a period of time. Having reached understanding concerning some further matters in conference I then confirmed those understandings on transcript. I felt this was an appropriate manner in which to proceed given that the Applicant did not have the benefit of legal or union representation and the case depended upon matters of statutory interpretation. This was particularly the case given that the Respondent had the benefit of legal advice and was seeking to be represented by a solicitor. The Applicant objected to the Respondent being represented by a solicitor. At the conclusion of the hearing I dismissed the application on the grounds that I found that the Applicant did not have the required minimum period of employment to attract the unfair dismissal jurisdiction. The reasons for my decision are as follows.
[6] The Applicant and the Respondent agreed and I am satisfied in respect of the matters set out in the next three paragraphs.
[7] The Respondent had 200 employees at the time of the Applicant’s dismissal and is not a small business employer. The minimum employment period specified in Section 383(a) of the Act is therefore six months. The Applicant had been employed by Protect Security since 2003 as a security guard at Martha Cove. Martha Cove invited tenders for the security work in December 2009 and in April 2010 the Respondent was awarded the tender. Protect Security no longer had a contract to provide security services to Martha Cove. The Respondent agreed to engage the Applicant. The Applicant continued to perform the same work for the Respondent as he had previously performed for Protect Security. There was no significant period of unemployment between work with Protect and work with the Respondent.
[8] On 18 April 2010 the Martha Cove Guards employed by Protect Security were invited to apply for employment with the Respondent. The invitation advised that the Respondent would commence providing the security services at Martha Cove on 3 May 2010 and that Protect Security would cease providing the service at that time. On 27 April the Applicant was interviewed for employment with the Respondent and signed documents that he understood were the conditions of employment. The Monjon (Australia) Pty Ltd Collective Agreement 2007 applies to the Respondent. The collective agreement provided that new employees were subject to a 3 month probation period. The Applicant commenced employment with the Respondent on or about 3 May 2010.
[9] The Applicant was dismissed at the initiative of the Respondent employer on 30 June 2010. This was less than three months after the commencement of employment with the Respondent.
[10] The relevant provisions of the Act in these circumstances are Section 384, Section 22 and Section 311.
(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.
(2) However:
(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
(b) if:
(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.
........
When service with one employer counts as service with another employer
(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.
……………..
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.
311 When does a transfer of business occur
Meanings of transfer of business, old employer, new employer and transferring work
(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:
(a) the employment of an employee of the old employer has terminated;
(b) within 3 months after the termination, the employee becomes employed by the new employer;
(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;
(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).
Meaning of transferring employee
(2) An employee in relation to whom the requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring employee in relation to the transfer of business.
Transfer of assets from old employer to new employer
(3) There is a connection between the old employer and the new employer if, in accordance with an arrangement between:
(a) the old employer or an associated entity of the old employer; and
(b) the new employer or an associated entity of the new employer;
the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):
(c) that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and
(d) that relate to, or are used in connection with, the transferring work.
Old employer outsources work to new employer
(4) There is a connection between the old employer and the new employer if the transferring work is performed by one or more transferring employees, as employees of the new employer, because the old employer, or an associated entity of the old employer, has outsourced the transferring work to the new employer or an associated entity of the new employer.
New employer ceases to outsource work to old employer
(5) There is a connection between the old employer and the new employer if:
(a) the transferring work had been performed by one or more transferring employees, as employees of the old employer, because the new employer, or an associated entity of the new employer, had outsourced the transferring work to the old employer or an associated entity of the old employer; and
(b) the transferring work is performed by those transferring employees, as employees of the new employer, because the new employer, or the associated entity of the new employer, has ceased to outsource the work to the old employer or the associated entity of the old employer.
New employer is associated entity of old employer
(6) There is a connection between the old employer and the new employer if the new employer is an associated entity of the old employer when the transferring employee becomes employed by the new employer.
[11] The material provided by the Respondent in their written submission and in the statement of Mr Goudsblom did not contain any evidence to suggest that the Respondent had informed the Applicant in writing before the new employment started that a period of service with the old employer would not be recognised. The Respondent argued this was implied by the signing of the interview and tax file forms and that it was made clear to the Applicant that he was on three month’s probation. However, none of these documents states that previous service will not be recognised. It appears likely that the conditions in 384(b)(iii) have not been met. The Respondent indicated that it might wish to bring more evidence in respect of this matter so I did not make any final decision about this matter.
[12] There was no evidence that the Respondent and Protect Security were associated entities and so the conditions of 384(b)(ii) are met and the condition of Section 311(6) is not met.
[13] The agreed facts make it clear and I am satisfied that this is not a case of contracting out or contracting in and the conditions in Section 311(4) and (5) are therefore not met.
[14] The provisions of Section 311(a), (b), and (c) have been met. Therefore the Applicant is a transferring employee as specified by Section 311(2). There will be a transfer of business for the purpose of Section 384 only in the event that there is a connection between the old employer and the new employer as set out in any one of Sections 311(3) to (6). I have already found that the provisions of Section 311(4), (5) and (6) are not satisfied. Hence it is only if I am satisfied that condition 311(3) is met that there will be a transfer of business and the earlier service with Protect can be considered for the purpose of establishing the minimum employment period.
[15] In light of the recent decision of the Full Bench in Shortland v The Smiths Snackfood Co Ltd (Shortland v The Smiths Snackfood Co Ltd - [2010] FWAFB 5709 - 16 September 2010 - Lawler VP, Drake SDP, Lewin C), with which I concur, it is clear that if the condition in Section 311(3) is met, that is if there is a transfer of business, then the Applicant would have the minimum employment period. The fact that the last two months of the employment period were as a casual employee with the Respondent could not in these circumstances detract from the fact that the required minimum employment period had already been achieved due to the employment period with Protect Security.
[16] A consequence of this would be that, subject to determining the matter in respect of Section 384(b)(iii) set out in paragraph 11 above, if the conditions set out in Section 311(3) are met then the Applicant’s claim has jurisdiction and if it is not met then it does not. If the condition in 311(3) is not met then the Applicant had less than the minimum employment period. The Respondent may have wished to make further submissions about this matter. For reasons set out later it is not necessary for me to make a final determination on this matter.
[17] I find that the conditions of Section 311(3) of the Act are not met in this case. The Respondent submitted that there was no transfer of or beneficial use of the tangible or intangible assets of Protect Security. The statement of Mr Goudsblom confirmed this. The Applicant accepted that he had no evidence to contradict this.
[18] The Applicant argued in his written submission that Section 384(2)(a) and Section 384(2)(b) should be read as alternatives. The Applicant argued that the legislation provides that if you have six months employment as a casual on a regular and systematic basis with a reasonable expectation of continuing employment on a regular and systematic basis it does not matter that there is more than one employer. The Applicant argued that the legislative intent of 384(2)(a) was to protect casuals generally and the legislative intent of 384(2)(b) was to protect permanent employees in the case of business transfer.
[19] In my view the Applicant’s reading of the intent of the legislation is not consistent with the actual words of the legislation. The legislation in Section 382, 383 and 384 refers to an employer or the employer and cannot be read as allowing for more than one employer except where specifically provided for as a result of Section 22 of the Act. Section 22 of the Act provides that the definition of continuous service includes a period as result of a transfer of employment. Section 384(2)(b) provides an exception to this in the case of non-associated entities where there has been advice in writing prior to the commencement of the new employment.
[20] It is understandable that the Applicant believed that the legislation protected him in a circumstance where he could see nothing had really changed. As far as he was concerned he was doing the same work in the same place as he had done for many years. The change in corporate arrangements was not something he believed would or should alter his rights.
[21] Following the proceedings in conference the Applicant accepted that his submissions could not be successful and that given that he could not challenge the evidence of the Respondent that there had been no transfer of or beneficial use of assets there was no transfer of business in this case. As a consequence the Applicant was forced to accept that there was less than six months period of continuous employment with the Respondent employer for the purposes of eligibility for protection from unfair dismissal.
[22] I therefore at the conclusion of the hearing dismissed the Application due to my finding that the employee did not have the required minimum period of employment to attract unfair dismissal jurisdiction.
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