Daniel Tregaskes v Advance Cutting Pty Ltd

[2025] FWC 696

[2025] FWC 696

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Daniel Tregaskes
v

Advance Cutting Pty Ltd

(U2025/557)

DEPUTY PRESIDENT ROBERTS SYDNEY, 11 MARCH 2025

Application for an unfair dismissal remedy - whether application out of time - whether respondent a small business - minimum employment period

1. On 16 January 2025 Mr. Daniel Tregaskes (Applicant) filed an application for a remedy under Part 3-2 of the Fair Work Act 2009 (Cth)(Act) relating to his alleged unfair dismissal by his former employer, Advance Cutting Pty Ltd (Respondent).

1. Two preliminary objections were taken to the application by the Respondent. First, the Respondent objected to the application on the basis that the Applicant was not a person protected from unfair dismissal within the meaning of s.382 of the Act because the Applicant had not completed a period of employment with his employer of at least the minimum employment period[1]. Second, the Respondent submitted that it was a small business employer[2] and the dismissal was consistent with the Small Business Fair Dismissal Code[3].

1. Because the application filed by the Applicant indicated that the date the dismissal took effect was 23 December 2024 it also appeared on the face of the application that the application had not been made within the 21-day time period prescribed by s.394(2) (out of time issue).

1. Directions were made for the filing of evidence and submissions in relation to the out of time issue only. The Applicant was directed to file and serve material on or before 18 February 2025 and the matter was listed for hearing on 28 February 2025 to deal with that issue. The Applicant did not file any material in accordance with those directions.

1. On 18 February 2025, the Respondent applied to have the application dismissed on the basis that the Applicant was not protected from unfair dismissal because he had not been employed for a period exceeding the minimum employment period. The Applicant was asked to file and serve any material in response to that application by 4pm on 19 February 2025 along with the other material that the directions had required by 18 February, but which remained outstanding. The Applicant failed to file any material or provide any other response.

1. Section 396 of the Act requires that the Fair Work Commission decide certain matters in applications of this kind before determining the merits of the application. Amongst those matters are the issue of whether the application was made within the time period required in s.394(2) and further, whether the applicant was protected from unfair dismissal. Having regard to the information before me and need for the efficient conduct of the matter, I determined that if I were satisfied that the application had been made within time or within such further time as I determined should be allowed under s.394(3), it would be appropriate to deal with the question of whether the Applicant was protected from unfair dismissal at the hearing on 28 February 2025.

1. On 26 February 2025 I wrote to the parties in the following terms:

   Parties are advised that in the event the Commission is satisfied that the application was filed within time or that there are exceptional circumstances justifying an extension of time, the Commission may, at the hearing on Friday 28 February 2025, proceed to deal with the Respondent’s objection that the Applicant is not protected from unfair dismissal because the Applicant did not meet the minimum employment period as described in s.383 of the Act. To this end, the Respondent is directed to file and serve any evidence on which it intends to rely in support of that objection, included sworn witness statement/s, by 2pm tomorrow Thursday 27 February 2025.

2. On 27 February 2025 the Respondent filed and served a statutory declaration attesting to the number of employees engaged by the Respondent in January 2025.

1. The Applicant did not attend the hearing of the application on 28 February 2025 or provide any explanation for his non-attendance.

1. At that hearing, the Respondent conceded that the date the dismissal took effect was 6 January 2025 and advised that it did not take issue with the application on the basis of it being filed outside the statutory time period. Given the information provided by the Respondent as to the dismissal I determined that the application had been made within time and it was appropriate to then deal with the issue of whether the Applicant was protected from unfair dismissal as foreshadowed in my correspondence of 26 February 2025. Thereafter, the declaration of 27 February 2025 was received into evidence in support of the Respondent’s minimum employment period objection. In response to further questions from me as to the number of casual employees employed by the Respondent, the Respondent was given a further period of time, until 3 March 2025, to file further evidence going to that issue.

1. The Respondent filed and served a further statutory declaration on 3 March 2025. The Applicant was given until 5 March 2025 to file any material in response and was put on notice that if the Respondent’s objection were to succeed the application may be dismissed without further notice. Nothing was received from the Applicant by 5 March 2025.

1. On the basis of the Statutory Declarations of Mr. Anthony Bou Francis of 27 February 2025 and 3 March 2025, and noting the Applicant’s information in the application to the effect that the Applicant commenced employment with the Respondent on 23 May 2024, I am satisfied that the Respondent was at the relevant time, a small business employer and that the Applicant had not completed a period of employment of at least the minimum employment period of 12 months[4] with the Respondent. The Applicant is therefore not a person protected from unfair dismissal under Part 3-2 of the Act and no remedy is available to him under that Part[5].

1. The application is dismissed.

DEPUTY PRESIDENT

Appearances:

No appearance for Applicant
Mr G Baldwin for the Respondent

Hearing details:

By Video using Microsoft Teams at 9:00 AM AEDT on Friday, 28 February 2025.

[1] See s.382(a) and s.383.

[2] See s.23.

[3] See s. 385 and s.388.

[4] Section 383(b).

[5] Section 390.

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