Arpita Das v Technosoft (Australia) Pty Ltd t/a Technosoft

[2017] FWC 4564

[2017] FWC 4564

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Arpita Das
v
Technosoft (Australia) Pty Ltd t/a Technosoft
(U2017/8677)

VICE PRESIDENT HATCHER SYDNEY, 1 SEPTEMBER 2017

Application for a remedy for unfair dismissal – minimum employment period not met.

[1] This decision concerns an application by Ms Arpita Das made pursuant to s.394 of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy in respect of the termination of her employment with Technosoft (Australia) Pty Ltd t/a Technosoft (Technosoft). Ms Das lodged her application on 11 August 2017. In that application (Form F2 – Unfair dismissal application), she stated that she began working for Technosoft on 27 February 2017 and was notified of her dismissal on 24 July 2017, with the dismissal taking effect the same day.

[2] On 16 August 2017 Technosoft filed its response to the application (Form F3 – Employer Response to Unfair Dismissal Application). In its response, Technosoft disputed the date on which Ms Das was dismissed, and contended that her dismissal took effect from March 17 2017. Technosoft also advanced a jurisdictional objection to the application on several grounds, most relevantly, that Ms Das’ employment did not meet the minimum employment period, and that Technosoft was a small business and the dismissal was consistent with the Small Business Fair Dismissal Code.

[3] Section 382(a) of the FW 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. 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.

[4] In support of its contention that it was a small business employer, Technosoft stated that it employed only two persons, and provided a list of its employees. In accordance with s.23 of the FW Act an employer is a small business employer if it employs fewer than 15 employees. Ms Das disputed that Technosoft only employed two employees, and provided a pay slip on which her employee number is 7 in support of her contention.

[5] It is not currently necessary for me to determine if Technosoft is a small business employer, nor is it necessary for me to determine the correct date of dismissal. The reason for this is that in Ms Das’ own application she states that her period of employment with Technosoft was less than six months, being from 27 February 2017 to 24 July 2017. Even if Technosoft were not a small business employer, thus making the minimum employment period only six months, Ms Das, on her version of the facts, could not be said to have completed the minimum employment period required for her to be a person protected from unfair dismissal.

[6] Ms Das’s unfair dismissal application is plainly incompetent and must therefore be dismissed.

VICE PRESIDENT

Appearances:

A. Das on her own behalf.

V. Sarada on behalf of Technosoft (Australia) Pty Ltd t/a Technosoft.

Hearing details:

2017.

Sydney:

1 September.

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