Dean Allmark v Environmental Industries Pty Ltd

[2012] FWA 6570

[2012] FWA 6570

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dean Allmark
v
Environmental Industries Pty Ltd
(U2012/7402)

COMMISSIONER WILLIAMS PERTH, 7 AUGUST 2012

Termination of employment - minimum employment period.

[1] This matter concerns an application made by Mr Dean Allmark for a remedy under section 394 of the Fair Work Act 2009 (the Act). The respondent is Environmental Industries Pty Ltd.

[2] The application states that Mr Allmark was employed on 24 October 2011 and that he was notified of his dismissal on 12 April 2012 and the dismissal took effect the same day.

[3] Section 382 of the Act prescribes that a person is protected from unfair dismissal if they have completed a prescribed minimum employment period. Section 383 of the Act prescribes that for a business which is not a small business the minimum employment period is six months. These provisions of the legislation are set out below.

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Note: High income threshold indexed to $118,100 from 1 July 2011

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] Consequently I wrote to the applicant advising him of this and invited him to provide any further information regarding the fact that it appeared that he had not completed the required minimum period of employment.

[5] In response to that invitation the applicant has provided a submission which includes the following statement:

“As noted I have not met the requirement under the act to have been employed for a period of six months to be heard by the commission.”

[6] The applicant’s submission addressed a number of other issues and matters none of which however change the fact that the applicant when dismissed had not completed the minimum employment period of six months which is a statutory prerequisite for an applicant, whom was employed by an employer that is not a small business employer, to be protected from unfair dismissal.

[7] Section 390(1)(a) of the Act provides that Fair Work Australia may order a remedy, be that reinstatement or the payment of compensation, where a person has been unfairly dismissed but only if that person was protected from unfair dismissal at the time of being dismissed.

[8] Given that the applicant in this case does not meet the statutory prerequisites this application cannot proceed and must now be dismissed. An order to that effect will be issued in conjunction with this decision.

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