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

[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

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)).

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.

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Darryn Faramus applied for an unfair dismissal remedy under the Fair Work Act 2009, claiming he was unfairly dismissed by South East Accident Repair Centre (VIC) Pty Ltd. The application was dismissed by the Fair Work Commission. The applicant, Darryn Faramus, alleged that his employment with the respondent, South East Accident Repair Centre (VIC) Pty Ltd, began on 7 March 2024. The employer contended that his employment started on 14 March 2024, a fact supported by payroll records and the applicant's first payslip. The applicant disconnected from the telephone hearing and could not be contacted for further clarification. The Commission found that the employment commenced on 14 March 2024, meaning the applicant did not complete the six-month minimum employment period (MEP) required to be protected from unfair dismissal.

The central issue for the Fair Work Commission was to determine the correct start date of the applicant's employment. This determination was crucial because it directly affected whether Mr Faramus had completed the minimum employment period (MEP) of six months, which is a prerequisite for protection from unfair dismissal under the Fair Work Act 2009. The Commission needed to ascertain the validity of the date claimed by the applicant against the documentary evidence provided by the employer. The Commission found that the payroll records and the first payslip provided by the employer were reliable indicators of the start date of employment, thereby dismissing the applicant's claim that he commenced work on 7 March 2024.

The Fair Work Commission concluded that Mr Faramus's employment with South East Accident Repair Centre (VIC) Pty Ltd began on 14 March 2024. Given this finding, the applicant's period of employment was less than six months, and he had not met the minimum employment period (MEP) required for protection from unfair dismissal. As a result, the Commission dismissed the applicant's unfair dismissal application, as he did not qualify for protection under the Act.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established