Daniel Secker v Shepherd Ave Deli

[2017] FWC 177

[2017] FWC 177

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Secker
v
Shepherd Ave Deli
(U2016/13110)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 10 JANUARY 2017

Application for relief from unfair dismissal – minimum employment period not met.

[1] On 31 October 2016 Mr Secker lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in which he asserted that he had been unfairly dismissed by Shepherd Ave Deli. In the course of a determinative conference convened by telephone on 10 January 2017, I advised that I would dismiss Mr Secker’s application. These reasons for decision set out the basis upon which I reached that conclusion.

[2] Mr Secker’s application was the subject of a telephone directions conference on 9 December 2016. Mr Secker did not participate in that conference and could not be contacted. In the course of that conference I noted that Shepherd Ave Deli objected to the application on the basis that Mr Secker:

● had not completed the required minimum employment period so as to be a person protected from unfair dismissal,
● was engaged as a casual employee but did not work on a regular and systematic basis,
● was not dismissed at the initiative of the employer, and
● in the alternative, the Small Business Fair Dismissal Code had application and was complied with.
[3] Following that directions conference, I issued directions on 9 December 2016. Those directions required Shepherd Ave Deli to provide material in support of its position with respect to the minimum employment period issue, to Mr Secker and to the Commission, by close of business 16 December 2016. Mr Secker was required to provide any material in response by close of business 4 January 2017. My directions concluded on the basis that:

“[9] Compliance with these directions is mandatory and a failure to do so may disadvantage the party concerned. Additionally, because Mr Secker did not participate in the telephone directions conference convened today, I take this opportunity to confirm that, if he failed to comply with these directions and/or participate in the conference listed for a 10 January 2017, I may conclude that he no longer seeks to pursue this application and close the Fair Work Commission file accordingly.”

[4] Mr Secker did not participate in the telephone determinative conference on 10 January 2017 and could not be contacted by telephone. Notwithstanding that his failure to attend indicates that he no longer seeks to pursue this application, I considered the information provided to me by Shepherd Ave Deli.

[5] Ms Clark, the owner of Shepherd Ave Deli participated in the determinative conference and advised that she had forwarded the information requested by email. Discussions, in the course of that determinative conference indicated that she may have had difficulties in so doing but, in the course of the conference she sent a further email with the information which had previously been provided.

[6] That information was to the effect that, as at 10 October 2016 Shepherd Ave Deli had eight employees and that Ms Clark was involved in no other businesses. Accordingly, for the purposes of s.23 of the FW Act, Shepherd Ave Deli was, at the relevant time, a small business.

[7] Ms Clark confirmed that, on the basis of his time book entry, Mr Secker commenced employment on 30 December 2015. I note that, in his application, Mr Secker asserts that he commenced employment with Shepherd Ave Deli on 1 December 2015.

[8] Ms Clark confirmed that the termination of Mr Secker’s employment took effect on 10 October 2016 and that he last worked on 5 October 2016. In his application, Mr Secker asserts that he was notified of the termination of his employment on 10 October 2016 but that this dismissal took effect at an unspecified date before then. I have taken 10 October 2016 as the date upon which the termination of Mr Secker’s employment took effect.

[9] Section 382 of the FW Act states:

“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.”

[10] The minimum employment period is defined in s.383 on the basis that it is one year, ending at either the time Mr Secker was given notice of his dismissal or at the time of that dismissal, whichever was the earlier, if the employer is a small business. Consequently, irrespective of whether Mr Secker commenced working for Shepherd Ave Deli on 1 December 2016 or 31 December 2016, he had not completed the requisite one year minimum employment period by 10 October 2016. Consequently, Mr Secker had not completed the required minimum employment period so as to be a person protected from unfair dismissal. His application must be dismissed accordingly.

[11] An Order (PR589243) giving effect to this decision will be issued.

Appearances:

L Clark for the Respondent.

Hearing (Determinative Conference) details:

2017.

Adelaide (by telephone):

January 10.

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