Danielle Willox v The trustee for the Edsberg Trust, t/a Novus Dermatology

[2024] FWC 1197

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Danielle Willox
v

The trustee for the Edsberg Trust, t/a Novus Dermatology

(U2024/2053)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 8 MAY 2024

Minimum employment period not met – application dismissed

Danielle Willox has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). The respondent is the trustee for the Edsberg Trust, which trades as Novus Dermatology. Section 396 of the Act states that the Commission must decide certain matters relating to an unfair dismissal application before considering the merits of the application. One of these is whether the person was ‘protected from unfair dismissal’. Section 382 states that a person is protected from unfair dismissal if the person has completed a period of employment with the employer of at least the ‘minimum employment period’ and meets certain other conditions.

Section 383 states that the ‘minimum employment period’ that a person must have served with an employer in order to be able to bring an unfair dismissal application is six months, or, where the employer is a small business employer, one year. Importantly, the section states that the minimum employment period ends at the earlier of the following times: (i) the time when the person is given notice of the dismissal; or (ii) immediately before the dismissal.

Section 23 of the Act defines a small business employer as one which, at the relevant time, employs fewer than 15 employees. This number includes casual employees employed on a regular and systematic basis. It also includes the person who has been dismissed, as well as the employees of any associated entity of the employer.

Ms Willox submitted, and the respondent accepted, that she commenced her employment on 27 February 2023, pursuant to a contract of employment that identified this as the start date. Almost a year later, on 23 February 2024, Ms Willox was given a letter which notified her that her employment would end on 8 March 2024. The employment terminated on that date.

At the time of the dismissal the respondent employed fewer than 15 employees and had no associated entities. It was therefore a small business employer within the meaning of the Act. This means that in order for Ms Willox to have been a person protected from unfair dismissal, she needed to have served a minimum employment period of one year, as defined in s 383. It will be recalled that this definition is not one full calendar year, but a year of continuous employment ending at the earlier of the time when notice of dismissal is given, or immediately before the dismissal. Ms Willox’s employment started on 27 February 2023. She was given notice of termination on 23 February 2024. This date is earlier than the time immediately before the dismissal, and therefore, pursuant to s 383, this is the date on which the minimum employment period ends. Although Ms Willox’s period of actual employment is more than one year, she did not meet the minimum employment period as defined in s 383. She had not served one year of continuous employment as at the time when she was notified of her dismissal. At that time, she had served just short of one year (27 February 2023 to 23 February 2024). The Commission has no power under the Act to extend or to waive this period.

Ms Willox has not satisfied the minimum employment period. She was therefore not a person protected from unfair dismissal. Accordingly, the Commission has no power to determine the merits of her claim. The application is dismissed.

Finally, I noted at the hearing that Ms Willox appeared to be entitled under her contract of employment to an additional payment of 2 weeks in lieu of notice and that although I had no power in respect of this matter, I considered that this amount ought to be paid. The respondent advised that it would do so.

DEPUTY PRESIDENT

Appearances:

D. Willox for herself
P. Sadeghinad for the respondent

Hearing details:

2024
Melbourne
8 May

Printed by authority of the Commonwealth Government Printer

Danielle Willox lodged an application for an unfair dismissal remedy with the Fair Work Commission, under section 394 of the Fair Work Act 2009. The respondent, the trustee for the Edsberg Trust trading as Novus Dermatology, acknowledged that Ms Willox began employment on 27 February 2023, and that she was dismissed on 8 March 2024. The Commission must determine specific matters before considering the merits of the application, including whether Ms Willox was protected from unfair dismissal. A person is protected from unfair dismissal if they have completed a minimum employment period and meet other conditions, with the minimum employment period being six months for general employers and one year for small business employers, as defined in section 383 of the Act.

The Commission found that at the time of dismissal, Novus Dermatology employed fewer than 15 employees and had no associated entities, thereby classifying it as a small business employer. Therefore, Ms Willox would need to have served one year of continuous employment to be protected from unfair dismissal. Ms Willox's employment began on 27 February 2023 and she was notified of her dismissal on 23 February 2024, which is the earlier date according to section 383, and therefore the end of the minimum employment period. Ms Willox had not served one full year of continuous employment as at the time of notification, and therefore did not satisfy the minimum employment period. Consequently, the Commission found it had no power to determine the merits of the claim, and dismissed the application. The Deputy President noted that Ms Willox may be entitled to an additional payment under her contract of employment, and that this amount should be paid. The respondent agreed to make this payment.

The Fair Work Commission dismissed the unfair dismissal application brought by Danielle Willox against the trustee for the Edsberg Trust trading as Novus Dermatology. The Deputy President found that Ms Willox had not satisfied the minimum employment period to be protected from unfair dismissal, and therefore the Commission had no power to determine the merits of the claim. As Novus Dermatology was a small business employer at the time of dismissal, Ms Willox needed to have served one year of continuous employment to be protected from unfair dismissal. She was given notice of dismissal on 23 February 2024, which was earlier than the time immediately before the dismissal, and therefore the end of the minimum employment period. Although Ms Willox's actual period of employment was more than one year, she had not served one year of continuous employment at the time of notification, and therefore did not satisfy the minimum employment period. The application was dismissed.

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