| [2015] FWC 2720 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Pierina McInnes
v
North Perth Vet Centre
(U2015/2008)
DEPUTY PRESIDENT GOOLEY |
MELBOURNE, 21 APRIL 2015 |
Application for relief from unfair dismissal.
[1] Ms Pierina McInnes alleged the termination of her employment by North Perth Vet Centre (NPVC) was unfair. In her application, she advised that she commenced employment on 1 November 2014 and her employment ended on 8 December 2014.
[2] Ms McInnes said that she had worked for the previous owner from 29 June 2009.
[3] P.B. Hodgen and Medivet Trust and the Murray Family Trust lodged an employer response and objected to the application on the basis that Ms McInnes had not served the minimum period of employment and that Ms McInnes had not lodged her application within 21 days of her dismissal.
[4] A conference was conducted by video and telephone on 26 February 2015.
[5] There are three issues to be decided:
1. Was Ms McInnes’s application lodged within time?
2. Is P.B. Hodgen and Medivet Trust and the Murray Family Trust a national system employer?
3. At the time of her dismissal, had Ms McInnes served the minimum employment period?
[6] Ms McInnes was given notice of termination on 8 December 2014 and her letter of termination advised that the dismissal took effect on 15 December 2014.
[7] The NPVC submitted that Ms McInnes’s last day of employment was 8 December 2014. This may have been the last day that Ms McInnes performed work, however, the letter of termination made it clear that the termination did not take effect until 15 December 2014.
[8] Ms McInnes lodged an application by telephone on 5 January 2015 and on 8 January 2015 she filed a completed application and paid the fee.
[9] The Fair Work Act 2009 (the Act) requires an unfair dismissal application to be lodged within 21 days of the dismissal taking effect.
[10] Section 585 of the Act provides that an application to the Fair Work Commission must be made in accordance with the procedural rules.
[11] The Fair Work Commission Rules 2013 provide at rule nine that an unfair dismissal application may be made by telephone.
(1) This rule applies to a person wanting to:
(a) make an application under section 365 of the Act to the Commission; or
(b) make an unfair dismissal application to the Commission.
(2) The person may, as an alternative to lodging the application in the approved form, make the application by telephone to a telephone number approved for that purpose by the General Manager.
Note: The telephone numbers approved by the General Manager for making a telephone application are available at www.fwc.gov.au.
(3) The Commission must prepare a written application for the person, based on the telephone application, and give the written application to the person.
(4) The person must, within 14 calendar days after the day on which the Commission gives the written application to the person, complete and sign the written application and lodge it with the Commission and:
(a) pay:
(i) for an application under section 365 of the Act—the fee mentioned in regulation 3.02 of the Regulations; or
(ii) for an application under section 394 of the Act—the fee mentioned in regulation 3.07 of the Regulations; or
(b) apply for a waiver of the fee.
(5) If the person applies for a waiver, and the Commission refuses that application, the person must pay the application fee within 7 calendar days of being notified of the refusal by the Commission.
(6) If:
(a) either:
(i) the person pays the application fee; or
(ii) the Commission approves a fee waiver; and
(b) the person completes and signs the written application and lodges it with the Commission;
the application is taken to have been made on the day that the person telephones the Commission to make the application in accordance with subrule (2).
(7) The process of telephoning the Commission in accordance with subrule (2), and lodging the completed and signed written application, are taken to be the application.
[12] As Ms McInnes made a telephone application on 5 January 2015 and completed the form and paid the fees within the prescribed time, she is taken to have made her application on 5 January 2015. As the letter of termination provided that her employment ended on 15 December 2015, her application was made within the 21 days provided by the Act.
[13] P.B. Hodgen, Medivet Trust and the Murray Family Trust are a partnership. A partnership is not a separate entity from its constituent parts. Each partner is jointly and severally liable for the partnership’s obligations. In this case, the partnership carries on the business of the NPVC.
[14] The Trustee of the Medivet Trust is Medivet (WA) Pty Ltd. A trust is not a separate legal entity and in this matter, one of the trusts has a corporate trustee.
[15] Medivet (WA) Pty Ltd, as trustee for the Medivet Trust, carries on a business in partnership with P.B. Hodgen and the Murray Family Trust.
[16] As one of the partners is a trading corporation, because of its role as a partner in the NPVC, I find that the employer in this case is a national system employer.
[17] Ms McInnes gave evidence that from June 2009 she was employed by Chivas Pty Ltd (Chivas) who had previously run the NPVC and that the new employer took over the business on 1 November 2014. She was not informed in writing prior to commencing employment that her period of service with her old employer would not be recognised. Chivas was a national system employer.
[18] Dr Hodgen accepted that she did not provide any such written advice to Ms McInnes. She relied upon the contract of sale which obliged Chivas to terminate the employment of employees and pay out their entitlements. Dr Hodgen said that Ms McInnes was told that there would be a three month probationary period under the new contract and that was signed on 18 November 2014. Dr Hodgen advised that Ms McInnes commenced employment with the NPVC on 3 November 2014.
[19] I accept that the NPVC is a small business and therefore Ms McInnes required one year’s service to be protected from unfair dismissal.
[20] As Ms McInnes was a transferring employee and as she was not given written notice prior to commencing employment that her service would not be recognised and given her previous employer was a national system employer, her service with Chivas counted as service with the NPVC for the purpose of determining whether she had served the minimum period of employment.
[21] Consequently, as Ms McInnes had over one year’s service, she was protected from unfair dismissal. This application will now be referred to conciliation.
DEPUTY PRESIDENT
Appearances:
Ms P McInnes on her own behalf.
Dr P Hodgen on behalf of the Respondent.
Hearing details:
2015.
Melbourne and Perth via video and telephone:
26 February.
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