Anthony Krisohos v Ultrafix Commercial Pty Ltd

[2025] FWC 104

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Anthony Krisohos
v

Ultrafix Commercial Pty Ltd

(U2024/14097)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 13 JANUARY 2025

Unfair dismissal application – MEP not met – application dismissed

The following is an edited version of a decision given on transcript earlier this morning. Anthony Krisohos (applicant) has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). Ultra Commercial Pty Ltd (respondent) objects to the application on the grounds that it did not dismiss the applicant and that he did not complete the ‘minimum employment period’ (MEP), which for small businesses is one year (see ss 382(a) and 383). The respondent also contends that the application was lodged out of time and that there are no exceptional circumstances to warrant an extension (s 394(2) and (3)). The applicant has not attended the determinative conference. The notice of listing required the parties to attend and advised them that s 600 allows the Commission to determine a matter in the absence of a person who has been required to attend before it. I proceed to do so.

The application was filed within time. The alleged dismissal occurred on Saturday, 2 November 2024. The 21-day period ended on Saturday, 23 November 2024. The application was lodged on Monday, 25 November 2024. Section 36(2) of the Acts Interpretation Act 1901 (as in force on 25 June 2009 - see s 40A of the Act) has the effect that, where the 21-day period ends on a weekend, the application can be lodged on the first business day after the end of the period. No extension of time is necessary.

I doubt that the applicant was dismissed. He tendered a written resignation. It does not appear to me that this was forced on him by the respondent. But I do not need to determine this question because even if the applicant was dismissed, it is clear that he has not met the MEP. I find that at the time of the alleged dismissal, the respondent was a small business employer as defined in s 23, as it employed 14 persons including the applicant. It had no associated entities. I accept the respondent’s evidence about these matters. The applicant was employed by the respondent for only nine months. He has not served the MEP, which is one year. The application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

No appearance for the applicant
J. Male and J. Cantwell for the respondent

Hearing details:

2025
Melbourne (by telephone)
13 January

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Anthony Krisohos, lodged an unfair dismissal application against Ultrafix Commercial Pty Ltd, his former employer. The matter was heard by Deputy President Colman in the Fair Work Commission. Krisohos claimed that he was unfairly dismissed by the respondent, which he alleged occurred on 2 November 2024. Ultrafix Commercial Pty Ltd argued that Krisohos had not been dismissed but had instead resigned, and that he had not completed the required minimum employment period (MEP) of one year for small business employers. The respondent also contended that the application was filed out of time and that there were no exceptional circumstances warranting an extension.

The primary legal issue before the court was whether Krisohos had been unfairly dismissed and whether he met the MEP requirement. The court considered whether the application was lodged within the stipulated 21-day period and whether there were any exceptional circumstances for an extension. It also examined the evidence to determine whether Krisohos had indeed resigned or if he was dismissed by the employer. The court concluded that even if Krisohos had been dismissed, he had not completed the required one-year employment period. As such, the court dismissed the unfair dismissal application.

In its reasoning, the court found that the application was filed within the required timeframe, as the 21-day period ended on a weekend, and the application was lodged on the first business day thereafter. However, the court found that the applicant had not met the MEP. Given the employer's status as a small business and its size, the court determined that the applicant had not served the required one-year employment period. Consequently, the application was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established