Andrew Rowe v LPG QLD Pty Ltd T/A Progas [2023] FWC 947

1 Fair Work Act 2009 s.394—Unfair dismissal Andrew Rowe v LPG QLD Pty Ltd T/A Progas (U2022/12338) DEPUTY PRESIDENT LAKE BRISBANE, 21 APRIL 2023 Application for an unfair dismissal remedy – jurisdictional objection – minimum employment period – Small Business Fair Dismissal Code – application dismissed. [1] This decision concerns an application by Mr Andrew Rowe (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant seeks a remedy, claiming that his dismissal from his employment with LPG QLD T/A Progas (the Respondent) was harsh, unjust, and unreasonable. The Applicant asserts his employment with the Respondent commenced in June 2021, and his employment was terminated on 23 December 2022. [2] The Respondent raised jurisdictional objections on the following grounds: • the Applicant did not meet the minimum employment period as he had resigned from his role and was re-engaged; and • the Respondent is a small business employer and it complied with the Small Business Fair Dismissal Code. [3] The matter was allocated to my chambers and directions were set for the filing and service of material. The Applicant filed and served their material at 6:54pm on Monday, 25 January 2023. The Respondent filed and served their material at 4:12pm on Tuesday, 31 January 2023. The jurisdictional matter was heard at 10:00am on Thursday, 16 February 2023. [4] I held a hearing addressing the jurisdictional objections on the grounds that the Applicant has not met the minimum employment period and the Respondent’s contention that they are a small business employer and complied with the Small Business Fair Dismissal Code. This decision deals with those matters only. [5] The Applicant was self-represented, and the Respondent was represented by Mr Scott Hasted. [2023] FWC 947 DECISION -- 1 of 7 -- [2023] FWC 947 2 Legislation [6] The relevant sections of the Act are: “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.” [7] The meaning of “minimum employment period” is relevantly provided at s.383 of the Act as follows: “22 Meanings of service and continuous (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. (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. … -- 2 of 7 -- [2023] FWC 947 3 383 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 (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 a 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.” [8] Small business employer is defined in s.23 of the Act: “23 Meaning of small business employer (1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time. -- 3 of 7 -- [2023] FWC 947 4 (2) For the purpose of calculating the number of employees employed by the employer at a particular time: (a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and (b) a casual employee is not to be counted unless, the employee is a regular casual employee of the employer he or she has been employed by the employer on a regular and systematic basis. (3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity. (4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b): (a) the employee who is being dismissed or whose employment is being terminated; and (b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.” Summary of the evidence and submissions The Respondent’s submissions [9] The Respondent is a small business for the purposes of s.23 of the Act. It was provided by the Respondent that they have three employees. In a letter from the Respondent’s accountant, HPartners Accounting Pty Ltd, the company has not had more than fifteen employees for the entirety of their engagement. [10] The Respondent states the Applicant does not meet the minimum employment period as there was a period from 30 August 2022 to 17 September 2022 where he had resigned, he had been paid out all his accruals and then subsequently reemployed into the same role. However, he was hired as a new employee with no recognition of prior service. [11] The details are that prior to his resignation there had been a series of performance issues with the Applicant and the Respondent had raised concerns about mistakes that the Applicant had been making. After another error had been discovered by the Respondent, the Applicant resigned from his role on 30 August 2022 via text message. [12] The Respondent discovered that the Applicant did not make one of the mistakes in question and felt morally bound to reemploy the Applicant. [13] The Respondent offered the Applicant his old job but as all statutory accruals had been paid out. The Respondent had notified the Applicant regarding past performance issues that -- 4 of 7 -- [2023] FWC 947 5 were to be addressed in recommencing the same role, but as a new employee. The Respondent made it clear that he would not tolerate continued performance gaps as evident previously. . [14] The Respondent attests that he tried to assist the Applicant in his performance of his role following his re-employment however within a short period of time, the Applicant had made similar errors and the performance gap was again noticeable he left the business on the to 23 December 2022, a period of service of three months and six days. [15] Regarding the text message that the Applicant received from the Respondent, , states , “… as far as we are concerned you never left, and just had Holidays”. The Respondent contends that it was fraudulent as his records indicate they only texted the Applicant once. Further, there are issues with the message delivery being that the Applicant was messaging an Android device and the message delivery indicates that the Applicant was messaging using an iPhone. the Respondent indicates that the screen shot of the alleged text message was fake due to the inconsistency of the devices with the texts. The Applicant’s submissions [16] The Applicant’s submissions may be summarised as follows. (a) The Applicant does not dispute that the Respondent is a small business. (b) The Applicant does not dispute that he was paid his statutory entitlements. (c) The Applicant relies on a text message from Mrs Hasted where she states words to the effect of, “… as far as we are concerned you never left, and you just had Holidays”. He asserts this message is genuine and that the Respondent may have deleted the message on their device. (d) The resignation that occurred on 30 August 2022 was due to Mr Hasted mistakenly blaming the Applicant for an error that was made when dealing with an order from a client. The Applicant felt that he was incapable of performing his role, so he texted the Respondent tendering his resignation. Once it came to light that it was in fact another employee who made the error, Mr Hasted attempted to visit the Applicant three times to reemploy him. Once he was able to make contact with the Applicant, there were some negotiations, and the Applicant was reemployed with the Respondent at an increased rate. (e) On 15 December 2022, a meeting was held between the Applicant, Mr Hasted, and Mrs Hasted. Mr Hasted raised that another client error that had been made by the Applicant. This was below the expectations of the role. The Applicant got upset, got up and said “I quit” and then left the work premises. The Applicant then texted Mrs Hasted the next morning asking, “should I come in?” Mrs Hasted confirmed he should. The Applicant attended work that day. A meeting was held on that day where the Applicant apologised for his erratic behaviour. Mr Hasted once again established that there were expectations that he perform his role in a competent manner, to which the Applicant agreed. (f) On 23 December 2022, the Applicant was called to a meeting with the Respondent, where another error by the Applicant had occurred. The Applicant, after a short -- 5 of 7 -- [2023] FWC 947 6 discussion asked Mr Hasted, “are you sacking me?” He left the work premises and did not return. Mr Hasted has taken this to be termination on the initiative of the employee. Consideration [17] There is contention regarding the text message that asserts, “… as far as we are concerned you never left, and you just had Holidays” provided by the Applicant. The Respondent contends that they never sent this message to the Applicant. The Applicant asserts that this message is genuine. I am unable to make a finding on the validity of this message as there are concerns that the message was ever sent and all evidence, a screenshot, pertaining to this message was given by laypersons with no expertise in telecommunications. [18] Regarding the question on whether there was continuous service, I find that there is a break in continuous service in the role. The Applicant did resign from his role on 30 August 2022. The Applicant had resigned from his role on 17 August 2022. The Applicant was then rehired on 17 September 2022. During this period, I am not satisfied on the evidence provided that there was a continuation of employment. The Applicant’s notice was accepted through the payment of his remaining entitlements. [19] This is consistent with past decisions in the Commission. In Tebble v Rizmas Pty Ltd,1 Commissioner Roe found that an employee who resigned her employment and then returned to work broke continuous service when commencing her new period of employment. [20] The Applicant did struggle with his role, and this was not helped by another employee who delivered slurs towards the Applicant. I note that the Respondent provided correspondence that confirms they had attended to the issue raised by the Applicant and that employee had apologised for his behaviour and committed to make efforts to correct his behaviour in the future. [21] The Respondent provided in their submissions that they had a total of three employees at the time of the Applicant’s dismissal and a letter from their accountant stating that they are a small business. The Applicant did not contest this. Therefore, I find that the Respondent is a small business, and the minimum employment period is twelve months. Conclusion [22] Consequently, the Applicant had not completed the minimum employment period. [23] Accordingly, I find that the jurisdictional objection is upheld and order that the application be dismissed. -- 6 of 7 -- [2023] FWC 947 7 DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR761274> 1 [2011] FWA 6853 at [25]. -- 7 of 7 --