[2011] FWA 8087 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Matthew Turner
v
Mindar Holdings Pty Ltd T/A JTS Ladies & Mens Hairstylists
(U2011/9428)
COMMISSIONER WILLIAMS |
PERTH, 29 NOVEMBER 2011 |
Termination of employment - jurisdiction.
[1] Mr Matthew Turner, the Applicant in this matter has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The Respondent is Mindar Holdings Pty Ltd T/A JTS Ladies & Mens Hairstylists.
[2] The Applicant in this matter was an apprentice hairdresser. The parties have entered into a training contract under the Vocational Education and Training Act 1996 (WA) (the VET Act).
[3] The Respondent contends that the employment of the Applicant was limited to the duration of the training arrangement which came to an end on the cancellation of the training contract on 20 June 2011 and that the termination of the Applicant's employment was not a dismissal within the meaning of the Act. Specifically it is submitted that the Applicant's employment was not terminated on the initiative of the employer.
Background
[4] The history of the matter is largely undisputed between the parties.
[5] The training arrangement the parties entered into was registered with and administered by the Apprenticentre, which is the shop front identity of the Government of Western Australia's Department of Training and Workforce Development.
[6] The Apprenticentre was contacted by both parties over their difficulties and a log of their discussions and meetings with both parties has been provided to the Tribunal.
[7] From this log and the other information provided by the parties it is clear that on 20 June 2011 there was a disagreement at the premises of the Respondent were the Applicant worked in Midland between the Applicant and the representative of the employer, Marjorie.
[8] The detail of that disagreement and the relative merits of the respective parties’ position are not significant in determining the jurisdiction to hear this application which is all that this decision deals with. It is enough to say there was a debate as to whether or not the Applicant could cut men's hair while sitting on a stool.
[9] Marjorie rang the Apprenticentre and advised that the Applicant had walked out of the salon and had said that he was going to call WorkSafe. Marjorie was advised that she would be sent out a cancellation form, due to abandonment.
[10] Mr Turner also called the Apprenticentre that day and advised that he had been sacked by Marjorie. A cancellation, out of contract and mandatory credit was discussed with Mr Turner. Mr Turner indicated he would contact WorkSafe regarding this matter. A meeting was arranged with the apprentice to resolve this matter.
[11] On the following day, 21 June 2011, a representative of the Apprenticentre went to Mr Turner's home to discuss the matter in an attempt to resolve the issues. Following a discussion about the detail of the disagreement the options discussed were the cancellation or continuing with his apprenticeship with his employer.
[12] Mr Turner was advised that if he continued with the Respondent he may be placed at another location. Mr Turner indicated if he were to go back to the Respondent he would give two weeks notice and leave. It was noted that the only way to resolve the issue was to have a meeting with both parties.
[13] The Apprenticentre then set about arranging a mutually acceptable meeting date.
[14] On the 24 June 2011 Mr Turner contacted the Apprenticentre and asked if he could look for another job whilst the matter was being decided upon. The Apprenticentre advised him that he would be on suspension whilst the matter was being decided upon and that he would not be able to look for another employer to sign into a training contract because he would still be signed into a contract with the Respondent. Mr Turner was advised about the Out of Contract Register which he agreed he would like to be placed on. A cancellation form was completed to this effect.
[15] On 27 June 2011 representatives of the Apprenticentre visited the Respondent's head office and met with Marjorie and Clint, representatives of the Respondent and Mr Turner and his mother.
[16] The details of the events of 20 June 2011 were discussed. The Apprenticentre representatives advised all parties that the only outcome to the meeting was to either cancel the training contract or reinstate the apprentice with the employer. Mr Turner advised that he would like to return to the salon. Marjorie advised that she does not want Mr Turner to return to the salon.
[17] The Apprenticentre advised all parties that Marjorie can apply to have the contract cancelled by the Chief Executive, and that the matter may go to a hearing and will be decided by the evidence put before them. All parties were advised that the only outcomes are to either cancel the contract or reinstate Mr Turner with the Respondent.
[18] The documents provided by the Apprenticentre include a document headed “Application to Cancel Apprenticeship/traineeship” which has a hand written addition on the header which reads “Out of Contract Register”. This application to cancel includes the details of the respective parties and in a box headed “Reasons for Cancellation” shows the word “Mutual”.
[19] This application to cancel is signed by both parties and dated 24 June 2011, although the cancellation date entered is 20 June 2011.
[20] A subsequent letter provided to the Tribunal dated 13 July 2011 to the Respondent from Ms Stannard, Coordinator at Apprenticentre, advises that the Applicant’s training contract has been cancelled effective from 20 June 2011.
[21] Finally a document headed “Extract of Apprenticeship/traineeship Training Contract” was provided that identifies the parties and says that the normal term of the training contract is 36 months, that the commencement date was 31 August 2009 and the “Expected Completion Date” was 20 June 2011.
[22] The parties provided a copy of the training contract. I note that the document includes a number of training contract obligations. One of these reads as follows:
“e) we will try to resolve any dispute we have between us, and if we can't, we will contact our State/Territory training authority to request assistance or to access the appropriate dispute resolution processes”
[23] Considering all this evidence my findings are as follows.
[24] There was a dispute between the parties on 20 June 2011.
[25] For approximately one week from this date the training arrangement between the parties was suspended.
[26] On 24 June 2011 by mutual agreement Mr Turner was placed on the Out of Contract Register, but his training arrangement was not at this time cancelled.
[27] Some time after 27 June 2011 the Respondent sought to have the training arrangement cancelled.
[28] On 13 July 2011 the Apprenticentre approved the cancellation of the training arrangement with the effective date of cancellation being 20 June 2011.
The legislation
[29] The relevant section of the Act that prescribes when a person has been dismissed for the purposes of section 385 is section 386 which is set out below:
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.
Consideration
[30] The questions in terms of jurisdiction to be considered here are firstly whether the Applicant's employment was terminated on the Respondent’s initiative - section 386(1)(a) and then if it was whether the Applicant was an employee to whom a training arrangement applied whose employment was for a specified period of time or was, for any reason limited to the duration of the training agreement, and his employment was terminated at the end of that training arrangement - section 386(2)(b).
[31] On behalf of the Respondent it is argued that the Applicant had consented to the cancellation of the training arrangement and so the employment was not terminated on the initiative of the Respondent.
[32] Considering the evidence above and the series of events I do not accept that is the case.
[33] Initially the training arrangement was suspended and the information provided by the Apprenticentre is that Mr Turner was generally indicating it was his preference to return to work, although perhaps after this he may himself have intended to give notice. It is quite clear from the Apprenticentre's notes that this was the case at the meeting of the parties on 27 June 2011 and that it was Marjorie, the Respondent's representative, who stated that she did not want Mr Turner to return to work.
[34] I do not accept that the application to Cancel the Apprenticeship/traineeship form signed and dated 24 June 2011 by both parties was anything other than a confirmation that Mr Turner wanted to be placed on the Out of Contract Register. The parties were still working through with the Apprenticentre to resolve the dispute between them and as at 24 June 2011 the dispute had not been finally concluded.
[35] In my view the cancellation of the training arrangement occurred some time after 27 June 2011. There is no evidence that the cancellation of the training arrangement was done with the consent of Mr Turner rather I am satisfied that the training arrangement was terminated by the Respondent. The termination of the training arrangement was subsequently approved by the Chief Executive as is required by section 60 G of the VET Act. This legislative requirement for the termination of the training arrangement to be approved by the Chief Executive before it has effect in no way changes the conclusion that the training arrangement was brought to an end on the Respondent’s initiative. Consequently I find that the Applicant’s employment was terminated on the employer's initiative.
[36] I will turn now to consider whether or not the Applicant is covered by the exclusion in section 386(2)(b). The Respondent readily concedes and I accept that the Applicant was an employee to whom a training arrangement, as defined in section 12, applied.
[37] Section 60 H of the VET Act provides as follows:
“(1) if a training contract ceases to have effect, whether under section 60 F(6) or because it is terminated or expires or for any other reason, the employment of the apprentice by the employer under the contract ceases.”
[38] Section 60 F(6) of the VET Act provides as follows:
“(6) if the chief executive cancels the registration of a training contract, the contract ceases to have effect.”
[39] Section 60 G of the VET Act provides as follows:
“(2) an employer who was party to a training contract and probation period of which (if any) has expired must not terminate the contract unless
(a) the apprentice has consented to the termination; or
(b) the chief executive has approved the termination.”
[40] I am satisfied then that the Applicant’s employment was for a specified period of time because the training contract specifies a nominal term of 36 months from the commencement date of 31 August 2009.
[41] The effect of section 60 H(1) is that the Applicant’s employment was limited to the duration of the training arrangement.
[42] I do not accept however that the final requirement of section 386(2)(b) that “... the employment has terminated at the end of the training arrangement;” (underlining added) is the case here.
[43] The training arrangement began on 31 August 2009. It had a nominal term of 36 months and so would end in late 2012.
[44] The training arrangement was cancelled in July 2011 and the effect of the cancellation was backdated to 20 June 2011. By virtue of section 60 H(1) the Applicant’s employment with the Respondent ceased when the training arrangement ceased to have effect.
[45] Self evidently the employment ceased well before late 2012 so it cannot be said that the employment has terminated at the end of the training arrangement. Rather what occurred here is that the training arrangement has not been allowed to run its full term but instead has been cut short.
[46] I note that this outcome is consistent with the Explanatory Memorandum to the Fair Work Bill 2008 which at item 1538 states that:
“Paragraph 386(2)(b) does not prevent trainees and apprentices from seeking a remedy if they are dismissed during the life of the traineeship or apprenticeship.”
[47] Accordingly in my view the Applicant in the particular circumstances of this matter is not covered by the exclusion in section 386(2).
[48] In summary then I am satisfied that the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative and that the exclusion in section 386(2)(b) is not applicable to the circumstances of this case. I find then that the Applicant has been dismissed by the Respondent. The Respondent’s jurisdictional objection to this matter is dismissed.
[49] The parties will be contacted in due course and advised of a date for hearing of the substantive application for an unfair dismissal remedy.
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