Benjamin Grant v DJ Casson Engineering Pty Ltd

[2014] FWC 6302

[2014] FWC 6302

FAIR WORK COMMISSION

DECISION

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

Benjamin Grant
v
DJ Casson Engineering Pty Ltd
(U2014/11532)

COMMISSIONER HAMPTON ADELAIDE, 12 SEPTEMBER 2014

Application for relief from unfair dismissal - whether protected from unfair dismissal - minimum employment period - insufficient service - no jurisdiction - application dismissed.

[1] On 27 June 2014, Mr Benjamin Grant made an application for a remedy in relation to an alleged unfair dismissal under s.394 of the Fair Work Act 2009 (the FW Act). Mr Grant’s employer was DJ Casson Engineering Pty Ltd (Casson Engineering).

[2] In Mr Grant’s application, 1 he states that he commenced employment with the Casson Engineering on 18 November 2013, that he was notified of his dismissal on 8 August 2014, and that it took effect on that day.

[3] Casson Engineering has raised a jurisdictional objection; being that Mr Grant’s employment does not meet the minimum employment period. The objection raises the question as to whether Mr Grant was protected from unfair dismissal within the meaning of the FW Act and whether as a result, he was eligible to have this application determined given the scope of the Commission’s unfair dismissal jurisdiction.

[4] On 4 September 2014, the matter was the subject of a directions conference in which both parties participated. Following the conference, directions were issued in order to confirm the apparently common facts and to invite submissions on the jurisdictional issue. 2 In particular, the parties were, by Wednesday 10 September 2014, to confirm that the following facts were not in dispute between them:

● DJ Casson Engineering Pty Ltd, at the time of the dismissal employed no more than five employees (including casual employees and employed directors) and does not have an associated entity employing staff; and
● Mr Grant was employed for a period commencing on 18 November 2013 and concluding on 8 August 2014, a period of 8 months and 21 days.

[5] The parties were notified that in the absence of a response by the above date, the Commission would assume that the facts set out above were not in dispute.

[6] Both Mr Grant and Casson Engineering subsequently confirmed the above facts; however Mr Grant has contended, in effect, that his unfair dismissal matter should proceed for reasons that I will come to.

[7] The importance of being protected from unfair dismissal is confirmed by s.390 and s.396 of the FW Act, which relevantly provide as follows:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

....”

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) ...

(b) whether the person was protected from unfair dismissal;

...”

[8] This means that the Commission must consider whether an applicant was protected from unfair dismissal prior to considering the merits of the application and cannot order a remedy in an unfair dismissal matter unless the applicant was so protected.

[9] Section 382 of the FW Act defines when a person is protected from unfair dismissal and relevantly provides as follows:

“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....”

[10] Section 383 of the FW Act provides 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.”

[11] The term Small business employer is defined in the FW Act in the following manner:

“23 Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated; and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”

[12] Given the agreed facts, there is no dispute that Casson Engineering was a small business employer within the meaning of the FW Act. Accordingly, the required minimum employment period in the circumstances of Mr Grant was one year at the time that he was given notice of his dismissal.

[13] It is also agreed that Mr Grant’s employment period was less than 12 months at the relevant time.

[14] On that basis, Mr Grant has not completed the required minimum employment period and he was not protected from unfair dismissal by the FW Act at the point of making this application.

[15] The capacity for Mr Grant to bring this application, and the Commission’s jurisdiction (power) to consider its merit and determine a remedy, is provided and limited by the FW Act. The Commission has no inherent jurisdiction and has only the powers and functions provided by legislation. In the agreed factual circumstances of this case, Mr Grant was not protected from unfair dismissal and there is no basis upon which the merit of his case, or a remedy, can be considered.

[16] In Mr Grant’s written submission he contends that even though he has not met the minimum employment period, his dismissal should still “be classed as unfair” on the basis that he alleges that he did not receive any written warnings and that the dismissal was handled in an unprofessional and demeaning manner. Given the nature the present proceedings, I am not in a position to determine the facts of the matter, including the denial of most of those allegations by Casson Engineering.

[17] It is clear that given the provisions of the FW Act, even if I were to accept the foundation of Mr Grant’s contentions in relation to fairness of the dismissal, there is no basis upon which the Commission can deal with his application given the express minimum service requirements established by the Act as a prerequisite for this matter.

[18] The unfair dismissal application is therefore beyond the jurisdiction of the Commission and must be dismissed. An order 3 to that end is being issued in conjunction with this decision.

Conference:

2014

September 4.

Final written submissions:

2014

September 9.

 1   Form F72.

 2   The directions were issued as Mr Grant, whilst acknowledging the jurisdictional issue, wished for the matter to be determined by the Commission given his position on the substantive application.

 3   PR555424.

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