Darryn Faramus v South East Accident Repair Centre (VIC) Pty Ltd

[2024] FWC 3044

[2024] FWC 3044

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Darryn Faramus
v

South East Accident Repair Centre (VIC) Pty Ltd

(U2024/10707)

DEPUTY PRESIDENT COLMAN MELBOURNE, 4 NOVEMBER 2024

Unfair dismissal application – minimum employment period not met – application dismissed

1. Darryn Faramus has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). The Commission can only issue an order for an unfair dismissal remedy to a person who is ‘protected from unfair dismissal’ (s 390). Such a person is one who, among other things, has completed a period of employment with the respondent of at least the ‘minimum employment period’ (MEP) of 6 months (12 months for small businesses) (see ss 382(a) and 383). An employee’s period of employment with an employer is the period of continuous service that he or she has completed with the employer (see 384(1)).

1. Mr Faramus’s F2 application stated that his employment commenced on 7 March 2024. The company’s F3 response stated that it began on 14 March 2024. The parties agreed that the employment ended on 9 September 2024 with immediate effect. A copy of the contract of employment was provided to the Commission. The contract is dated 7 March 2024. However, schedule 1 of the contract states that the commencement of employment is 14 March 2024. At the telephone hearing, Mr Faramus said that, despite the contract, his first day of work was in fact 7 March 2024. Kristel Durrant, the company’s people manager, said that this was wrong and that the first day of work was 14 March 2024. Ms Durrant pointed to extracts from the payroll record that confirmed this. She also cited, and later sent to the Commission, a copy of Mr Faramus’s first payslip, which was in respect of the period from 13 to 19 March 2024. I asked Mr Faramus whether he had any earlier payslip or other document to support his recollection that he commenced work on 7 March 2024. Mr Faramus disconnected from the hearing and could not be contacted. It is clear, and I find, that Mr Faramus’s first day of work was 14 March 2024. The employment commenced on that day.

1. Mr Faramus has not met the MEP. His service was 5 days short of 6 months. He was not a person protected from unfair dismissal. The application is dismissed.

DEPUTY PRESIDENT

Hearing details:

2024
Melbourne (by telephone)
4 November

Appearances:

D. Faramus for himself
K. Durrant for South East Accident Repair Centre (VIC) Pty Ltd

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