AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.170CE application to the Commission re: termination of employment
and
COMMISSIONER EAMES MELBOURNE, 22 MAY 2001
Jurisdictional grounds.
DECISION
[1] This matter arises from an application made pursuant to s.170CE of the Workplace Relations Act 1996 (the Act) by Ms K. Merrett (the applicant) on 30 November 2000, where she sought relief following her termination of employment by The Gourmet Bakehouse (the Respondent) on 17 November 2000.
[2] The Respondent had indicated on the Form R21 returned to the Northern Territory Registry on 5 December 2000, that they objected to the application proceeding on jurisdictional grounds, in that it was alleged the Applicant was a trainee employed under a traineeship agreement for a specified period, and that at the conclusion of that period, further employment was not offered to the Applicant.
[3] The hearing of the jurisdictional question came on for hearing, in Alice Springs on 30 April 2001. The principal activity of the Respondent is the conduct and management of a retail bakery.
[4] Ms Mildred, who appeared for the Respondent tendered a statutory declaration of a Mr R Van Riet, the manager of the bakery (Exhibit M1), although due to ill health, confirmed by a doctors certificate, he was not able to attend the hearing in person.
[5] Ms Mildred submitted the following facts as perceived by the Respondent:
[6] The Applicant commenced employment as an apprentice baker with the Respondent on 16 March 1999 having completed two years of her apprenticeship with Woolworths prior to this.
[7] The Applicant had approached the Respondent regarding employment suggesting that if the Respondent was agreeable, employment would allow the Applicant to complete her trade qualification.
[8] There was no obligation given by the Respondent regarding on-going employment following completion of the traineeship.
[9] The traineeship was signed off as completed on 19 October 2000.
[10] A certificate of Completion of a Training Agreement was forwarded to the Respondent by the relevant Authority on 9 November 2000 and provided to the Applicant with a letter of the same date.
[11] The Respondent advised the Applicant in the letter of 9 November 2000, whilst enclosing the relevant Certificate of Completion of a Training Agreement that he was unable to offer ongoing employment as a Tradesperson and further advised, that as the contract of Training had been completed, that his obligation to provide employment whilst Training had ceased.
[12] It was put that the delay in giving this advice had been entirely couched in the Respondent's wish to ensure that the Certificate of Completion of Training was in order. Regulation 30B(1)(e) does not specify a definite period of time, much as a probation period is specified in advance and the parties know the duration of it. A traineeship cannot be specified as it is subject to completion of all modules. The Respondent had an obligation to provide 2 weeks' notice and did this. Therefore the receipt of notification of the completion of the Traineeship is also the date of the completion of that Traineeship. The decision contained in Wilson v Australian Taxation Office Print PR90112 - Giudice P, Williams SDP and Bacon C supports the notion that under the Evidence Act, if something is posted, it is deemed to be received four days later. The Respondent contends that a person cannot be terminated until they receive formal notification of it.
[13] The Respondent had no legal obligation to provide continuing employment once the contract for training was completed, that obligation to employ the Applicant being limited to the duration of the contract of training.
[14] The Applicant, represented by her father, Mr B Merrett submitted that the Applicant had contracted dermatitis on her hands around April of 2000, and she had provided a doctor's certificate to account for her condition, and absence from work.
[15] Mr Merrett tendered an exhibit K1 which was the notice of completion of a training agreement by the NT Employment and Training Authority. That document indicated the training period for the Applicant was completed on 19 October 2000. In addition, pay advices for the period 25 October 2000 until 15 November 2000 were handed to the bench, but not marked.
[16] Mr Merrett submitted that these pay slips indicate the Applicant was paid tradespersons rates for the above period, and accordingly the evidence that the Applicant was employed for a period following the completion of the traineeship, until she was terminated by the letter dated 9 November 2000 but not received until 17 November 2000.
Conclusion
[17] I am satisfied based on the submissions and evidence put forward in this matter, that following the completion of the traineeship, the Applicant continued on in employment, was paid adult wage rates, and this was only concluded upon her termination. The fact that this was sick payments does not indicate she had been terminated. In fact she had not been.
[18] Accordingly I do not accept the termination occurred during the period of the traineeship and the objection must be dismissed. The application is within jurisdiction.
[19] The matter should now proceed to arbitration in accordance with the provisions contained within the Act.
ORDER
[20] That the objection be dismissed.
BY THE COMMISSION:
COMMISSIONER
Appearances:
B. Merrett father of the applicant with K.A. Merrett the applicant.
B. Mildred from the Northern Territory Chamber of Commerce and Industry Incorporated representing the respondent.
Hearing details:
2001.
Alice Springs:
April 30.
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