Andrew Rennie v Degani Bowen Hills T/A Degani

[2017] FWC 4906

[2017] FWC 4906

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Andrew Rennie

v

Degani Bowen Hills T/A Degani

(U2017/7944)

DEPUTY PRESIDENT DEAN SYDNEY, 3 OCTOBER 2017

Application for an unfair dismissal remedy – minimum employment period.

1. This decision concerns an application by Mr Andrew Rennie made pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of the termination of his employment with Degani Bowen Hills T/A Degani (the Respondent).

1. Mr Rennie lodged his application on 24 July 2017. In that application he stated that he began working for the Respondent on 18 January 2017 and was notified of his dismissal on 21 July 2017, with the dismissal taking effect the same day.

1. The Respondent raised a jurisdictional objection to Mr Rennie’s application submitting that Mr Rennie had not met the minimum employment period. The Respondent stated that Mr Rennie commenced employment on 24 January 2017 with the dismissal taking effect on 21 July 2017, a period of less than six months.

1. Section 382(a) of the Act states that a person is protected from unfair dismissal if at the time of dismissal that person has completed a period of employment with his or her employer of at least the minimum employment period.

1. Section 383 explicates the meaning of the minimum employment period as follows:

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.

1. The application was listed for hearing on 22 September 2017 to determine the date that Mr Rennie commenced and ceased working for the Respondent. At the hearing Mr Rennie appeared on his own behalf and Mr Kelvin Jakes with Mr Darren Lane appeared on behalf of the Respondent.

Evidence and Submissions

1. Mr Rennie gave evidence that he attended an interview and commenced work the following day. He could not recall if the interview was on 18 January 2017 with work commencing on 19 January 2017, or 23 January 2017 with work commencing on 24 January 2017.

1. Mr Rennie submitted that his employment ended on 28 July 2017 beause he was paid one week’s pay in lieu of notice. During the hearing Mr Rennie stated that he was given a letter of termination on 21 July 2017 and confirmed he did not perform work for the Respondent after that date. He accepted that his employment ended on 21 July 2017.

1. The Respondent submitted that Mr Rennie commenced employment on 24 January 2017 and that the dismissal took effect on 21 July 2017.

1. Clause 3 of Mr Rennie’s Contract of Employment states:

‘Commencement date

3.1 Your employment commences on 24^th January 2017.’[1]

1. The Respondent relied on a PAYG payment summary for the year ending 30 June 2017 which provided a period of payment commencing from 24 January 2017. The Respondent also relied upon email correspondence from Mr Richard Smith noting a start date of 24 January 2017.[2]

1. Mr Lane, CEO of the Respondent, gave evidence that Mr Rennie’s employment commenced on 24 January 2017 and ceased on 21 July 2017. He said:

‘I approved the appointment of Mr Rennie as Chef at Bowen Hills Corporate store commencing employment January 24th 2017.

…
I gave Mr Rennie the opportunity to improve the working situation, but failed to see evidence of a positive change. This lead to me terminating Mr Rennie’s employment in person at Bowen Hills Degani on the 21st of July 2017, with Eloise Scott, my EA as witness.’[3]

Conclusion

1. Based on the evidence and submissions made in this matter, I am satisfied that Mr Rennie commenced employment on 24 January 2017 and that his dismissal took effect on 21 July 2017. As the period of employment was less than six months, it is not necessary for me to determine if the Respondent is a small business employer.

1. I find that the Mr Rennie had not completed the minimum employment period and is not a person protected from unfair dismissal. Accordingly, I uphold the Respondent’s jurisdictional objection and dismiss the application. An order to that effect will be issued separately.

DEPUTY PRESIDENT

Appearances:

A Rennie on his own behalf.

K Jakes with D Lane on behalf of Degani Bowen Hills T/A Degani.

Hearing details:

2017.
Sydney (by telephone):
September 22.

[1] Exhibit 2.

[2] Ibid.

[3] Exhibit 3 at paragraphs 2 and 10.

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