David Kent v Southern Cross Electrical Engineering T/A FMC Pty Ltd

[2017] FWC 4786

[2017] FWC 4786

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Kent
v
Southern Cross Electrical Engineering T/A FMC Pty Ltd
(U2017/9059)

DEPUTY PRESIDENT DEAN SYDNEY, 13 SEPTEMBER 2017

Application for a remedy for unfair dismissal – minimum employment period not met.

[1] This decision concerns an application by Mr David Kent made pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of the termination of his employment with Southern Cross Electrical Engineering T/A FMC Pty Ltd (the respondent).

[2] Mr Kent lodged his application on 21 August 2017. In that application he stated that he began working for the respondent on 5 July 2017 and was notified of his dismissal on 5 August 2017, with the dismissal taking effect the same day.

[3] Section 382(a) of the Act states that a person is protected from unfair dismissal if at the time of dismissal that person has completed a period of employment with his or her employer of at least the minimum employment period. Section 383 explicates the meaning of the minimum employment period as follows:

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.

[4] It is not currently necessary for me to determine if the respondent is a small business employer. The reason for this is that in Mr Kent’s own application he states that his period of employment with the respondent was approximately one month, being from 5 July 2017 to 5 August 2017. Even if the respondent were not a small business employer, thus making the minimum employment period only six months, Mr Kent, on his version of the facts, could not be said to have completed the minimum employment period required for him to be a person protected from unfair dismissal.

[5] I find that Mr Kent was not employed for the minimum employment period required by the Act.

[6] I Order that this application be dismissed.

DEPUTY PRESIDENT

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