Anita Ricupero v Important Items Pty Ltd T/A Balloon World

[2020] FWC 6144

[2020] FWC 6144

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anita Ricupero
v
Important Items Pty Ltd T/A Balloon World
(U2020/12255)

COMMISSIONER WILLIAMS PERTH, 17 NOVEMBER 2020

Termination of employment - jurisdiction - minimum employment period.

[1] This decision concerns an application made by Ms Anita Ricupero (Ms Ricupero or the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The application was lodged on 11 September 2020. The respondent is Important Items Pty Ltd T/A Balloon World (the Respondent).

[2] The Respondent in its Form F3 – Employer’s Response states at the time of dismissal it had a total of 11 employees and the Applicant had not served the minimum employment period of one year required to make this application.

[3] The application was the subject of a conference with a Fair Work Commission conciliator however the matter was not resolved and so was referred for arbitration.

[4] In light of the Respondent’s objection the Commission wrote to the Applicant and her legal representative by email on 29 October 2020 explaining that the Respondent had moved for the dismissal of the application because Ms Ricupero had not completed the minimum employment period of one year and directing them to provide information in response to the jurisdictional objection raised by the Respondent in their Form F3 – Employer’s Response by 12 November 2020.

[5] On 12 November 2020 the Applicant’s legal representative advised that the Applicant has no submission to make with respect to the jurisdictional objection.

Consideration

[6] Section 382 of the Act, set out below, requires that for a person to be protected from unfair dismissal they have completed a period of employment with their employer of at least the minimum employment period.

“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] Section 383 of the Act, set out below, prescribes that if the employee’s employer is a small business the minimum employment period is one year.

“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.”

[8] In this case the Applicant has not contested the Respondent’s assertion that it is a small business and so I am satisfied the Respondent is a small business employer. Consequently, the minimum employment period applicable to Ms Ricupero is one year.

[9] Both parties agree the date the Applicant began working for the Respondent was 5 October 2019.

[10] The date of dismissal is unclear however, both parties state it was in August 2020. Whatever date in that month was the effective date of dismissal the Applicant has not completed the minimum employment period of one year.

[11] Ms Ricupero has not completed the prerequisite minimum employment period and so is not able to make this application.

[12] I uphold the Respondent’s objection and dismiss this application for want of jurisdiction.

[13] An order [PR724597] to that effect will now be issued.

Printed by authority of the Commonwealth Government Printer

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