David Whitaker v Linfox Australia Pty Ltd

[2012] FWA 4061

[2012] FWA 4061

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Whitaker
v
Linfox Australia Pty Ltd
(U2011/14812)

COMMISSIONER WILLIAMS PERTH, 16 MAY 2012

Termination of employment - extension of time - minimum employment period.

[1] This matter involves an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act) made by Mr David Whitaker (the Applicant) on 21 December 2011. The respondent is Linfox Australia Pty Ltd (Linfox).

[2] The application was listed for a conciliation conference before a Fair Work Australia Conciliator however at the appointed date and time Mr Whitaker did not attend. Mr Whitaker’s application has consequently been referred to myself for determination.

Background

[3] The information provided by Mr Whitaker on his application is that he was first employed in December 2010 and was dismissed on 22 November 2011.

[4] Linfox in their response to the application say the Applicant was first employed by them on 15 August 2011 and he was dismissed and notified of his dismissal on 22 November 2011.

[5] Consequently I wrote to both parties and requested they provide information as to whether or not Mr Whitaker has completed the minimum employment period of six months as is required by section 382 of the Act for him to be a person protected from unfair dismissal.

[6] Linfox provided information as requested on this point. This information was also provided to the Applicant. The Applicant was directed to provide his response to this by 7 March 2012 however he did not do so by this date. Consequently my associate sent a further email to the Applicant reminding him of this and requesting that he urgently provide his response. To date nothing has been provided by the Applicant and there has been no contact from him.

[7] In the circumstances I will now proceed to determine this matter on the basis of the information before me.

Consideration

[8] Section 394 of the Act requires that a person who has been dismissed and is applying for an unfair dismissal remedy, such as Mr Whitaker, must make their application within 14 days after the dismissal took effect. This section further allows Fair Work Australia to extend the time of the making of such an application where the Tribunal is satisfied that there are exceptional circumstances warranting such a further period being allowed.

[9] Both parties agree that Mr Whitaker was dismissed on 22 November 2011. Mr Whitaker’s application was made on 21 December 2011 and so was not made within 14 days after his dismissal took effect.

[10] Mr Whitaker has not requested that Fair Work Australia allow a further period for his application to be made. Consequently there is nothing before me that would allow me to form the view that there are exceptional circumstances such that I should exercise my discretion under section 394 (3) of the Act to allow a further period for Mr Whitaker’s application to be made.

[11] This application has been made after the 14 day time limit specified in the legislation has passed and because of this will now be dismissed.

[12] It is also appropriate for completeness to consider whether or not Mr Whitaker was a person protected from unfair dismissal as defined in section 382 of the Act. Section 396 of the Act requires that Fair Work Australia must decide this matter before considering the merits of any application.

[13] Section 382 of the Act provides amongst other things that a person is protected from unfair dismissal only if at that time the person is an employee who has completed a period of employment with his employer of at least the minimum employment period.

[14] Section 383 of the Act prescribes that the minimum employment period where the employer is not a small business is six months.

[15] Linfox is not a small business employer and so Mr Whitaker must have been employed by them for at least six months to be a person who is protected from unfair dismissal.

[16] On the information provided by Linfox, which is uncontested and I accept, Mr Whitaker commenced employment with a labour hire agency in December 2010 but did not commence employment with Linfox until 15 August 2011.

[17] Linfox have provided a letter that shows an offer of employment that was made to Mr Whitaker in May 2011 and appears to have been signed by him on 9 June 2011 which confirms that his employment will commence with Linfox on 15 August 2011.

[18] The timing of the employment commencement is confirmed by Mr Whitaker’s payslips that were also provided to the Tribunal by Linfox.

[19] I find therefore that at the time Mr Whitaker was dismissed he had not completed a period of six months employment with Linfox. Consequently the Applicant was not protected from unfair dismissal at the time of his dismissal.

[20] Becuase the Applicant is not a person protected from unfair dismissal under section 390 (1) of the Act even if he had been unfairly dismissed there is no remedy, either of reinstatement or the payment of compensation, that Fair Work Australia could order.

[21] Accordingly because Mr Whitaker’s application was made outside the 14 day time limit set by the legislation and in any event because he was not protected from unfair dismissal his application must be dismissed.

[22] An order to that effect will issue in conjunction with this decision.

COMMISSIONER

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