Donna Demasi v Auswire Industries (Vic) Pty Ltd

[2020] FWC 6227

[2020] FWC 6227

FAIR WORK COMMISSION

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.

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