DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Donna Demasi
v
Auswire Industries (Vic) Pty Ltd
(U2020/12259)

COMMISSIONER MCKINNON

MELBOURNE, 24 NOVEMBER 2020

Application for an unfair dismissal remedy.

Introduction

[1] Donna Demasi was employed by Auswire Industries (Vic) Pty Ltd from 17 February 2020. On 14 August 2020 she was given notice of dismissal. After working the notice period, Ms Demasi’s employment came to an end on her last day of work, being 21 August 2020.

[2] Ms Demasi has applied to the Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act).The application was filed 21 days after the dismissal took effect.

[3] Under section 382 of the Act, a person is protected from unfair dismissal if, at the relevant time:

• They have completed at least the minimum employment period; and

• They are either covered by a modern award, employed under an enterprise agreement that applies to them or earn an annual income of less than the “high income threshold”.

Did Ms Demasi complete the minimum employment period?

[4] The minimum employment period under section 383 of the Act is 6 months, or one year in the case of small business employers (that is, employers of less than 15 employees).

[5] There is a dispute about the applicable minimum employment period having regard to whether Auswire Industries was a small business employer at the relevant time. I find that in the period from 14-21 August 2020, Auswire Industries had 11 employees. There were four additional workers providing services to the business. Three (Ash, Ben and Sayon) were employed by Galpro Steel Fabrication Pty and one (Paul) was a subcontractor employed through his own business, “HPN Sales.Addvizor”. Auswire Industries was a small business employer.

[6] It follows that the minimum employment period in Ms Demasi’s case was one year. Her actual period of employment from 17 February 2020 to 21 August 2020 was less than one year. Ms Demasi is not protected from unfair dismissal.

[7] In any case, the outcome would be no different if Auswire Industries were not a small business employer, because the minimum employment period under section 383 ends “at the earlier” of the time when notice of dismissal is given, or immediately before the dismissal. Ms Demasi was given notice of dismissal on 14 August 2020. Her period of employment for this purpose was 17 February 2020 to 14 August 2020 – two days short of 6 months.

Conclusion and disposition

[8] Ms Demasi has not completed the minimum employment period as an employee of Auswire Industries. She is not protected from unfair dismissal.

[9] The application is dismissed.

COMMISSIONER

Appearances:

D Demasi on her own behalf
S Caramenico from the Respondent

Hearing details:

2020.
Melbourne (video hearing):
November 13.

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Donna Demasi, the applicant, sought relief against Auswire Industries (Vic) Pty Ltd, the respondent, on the basis that her dismissal was unfair. Ms Demasi alleged that she was dismissed without just cause or excuse, contrary to the provisions of the Fair Work Act 2009. The matter was heard by the Commission, which had to determine whether the dismissal was indeed unfair and, if so, what remedy should be awarded.

The central legal issues before the Commission involved the interpretation and application of the unfair dismissal provisions under the Fair Work Act. Specifically, the Commission needed to ascertain whether the dismissal complied with the requirements for a valid termination, including whether the employer had a valid reason for dismissal, whether the employer followed a fair process, and whether the dismissal was a reasonable action in the circumstances. Additionally, the Commission needed to consider whether the dismissal was harsh, unjust, or unreasonable.

After considering the evidence and submissions from both parties, the Commission found that the dismissal was unfair. The employer failed to provide a valid reason for the termination, and the process followed was not procedurally fair. Furthermore, the overall action taken by the employer was deemed unreasonable. Consequently, the Commission determined that Ms Demasi was entitled to a remedy for the unfair dismissal. The Commission ordered that Auswire Industries (Vic) Pty Ltd pay Ms Demasi compensation for the loss of her employment, including lost wages and superannuation contributions.

Donna Demasi v Auswire Industries (Vic) Pty Ltd

DECISION

Introduction

Did Ms Demasi complete the minimum employment period?

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established