Darren Whitney v Sahara Logistics

[2009] FWA 1211

[2009] FWA 1211

FAIR WORK AUSTRALIA

DECISION

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

Darren Whitney
v
Sahara Logistics
(U2009/12014)

COMMISSIONER SMITH MELBOURNE,23 NOVEMBER 2009

Jurisdiction objection – period of service – s.383 of Fair Work Act 2009.

[1] On 11 September 2009 an application was lodged by Mr Darren Whitney claiming that his employment by Sahara Logistics had been terminated unfairly.

[2] The termination of employment was stated as having taken effect on 31 August 2009.

[3] Sahara Logistics filed an objection to the application for an unfair dismissal remedy on 16 October 2009 on the basis that Mr Darren Whitney had not been employed for more than 6 months. Sections 383 to 384 of the Fair Work Act 2009 provide:

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.

384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.

[4] When the matter was listed for hearing Mr Whitney was advised of these sections and asked if he had any submission to make on their application to his matter. Mr Whitney submitted that the sections appeared to apply to him.

[5] I am of the same view and accordingly I find that there is no jurisdiction for Fair Work Australia to consider is application. Accordingly it is struck out.

COMMISSIONER

Appearances:

D Whitney on his own behalf.

J Schriber for Sahara Logistics.

Hearing details:

2009.

Melbourne;

November 20.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR990992>