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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

David Kent brought a claim against Southern Cross Electrical Engineering trading as FMC Pty Ltd for a remedy of unfair dismissal. The Federal Circuit and Family Court of Australia was tasked with determining the matter. The core issue before the Court was whether the applicant had satisfied the minimum employment period requirement under section 387 of the Fair Work Act 2009. This section stipulates that an employee must have been continuously employed by the same employer for at least six months to be eligible for an unfair dismissal claim.

The Court examined the applicant's employment history and concluded that Mr. Kent had not met the six-month employment period with FMC Pty Ltd. The evidence presented indicated that his employment was terminated after a shorter duration, thereby falling outside the statutory eligibility criteria. Consequently, the Court found that the application for a remedy of unfair dismissal was not tenable due to the ineligibility stemming from the insufficient employment period. The Court dismissed the application on the grounds that the statutory requirement was not fulfilled.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established