Doo Hong v Downer EDI Services P/L T/A Downer EDI

[2016] FWC 7138

[2016] FWC 7138

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Doo Hong
v
Downer EDI Services P/L T/A Downer EDI
(U2016/8610)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 5 OCTOBER 2016

Application for relief from unfair dismissal.

[1] Mr Hong filed an application pursuant to s.394 of the Fair Work Act 2009 (the Act) on 28 July 2016 seeking an unfair dismissal remedy. The application was allocated to me.

[2] I have set out below paragraphs 1.1, 1.2 and 1.3 of the application.

“1.1 What date you begin working for your employer?
1 February 2016

1.2 What date were you notified of your dismissal?
8 July 2016

1.3 What date did your dismissal take effect?
8 July 2016”

[3] In paragraph 2.1 of his application Mr Hong stated that he had been dismissed immediately.

[4] It was apparent to me from these paragraphs of Mr Hong’s application that there was an issue regarding his period of employment.

[5] On 17 August 2016 I wrote to Mr Hong as follows:

“Dear Mr Hong,

Re: U2016/8610 – Hong v EDI Services Pty Ltd

It is apparent from your application that you may not have met the minimum employment period requirements prescribed by the Fair Work Act 2009. An application for an unfair dismissal remedy cannot succeed unless the period of employment is greater than 6 months or, if your employer was a small business employer, a period greater than 12 months.

Please provide a statement regarding the period of your employment with the respondent.

On the basis of the application filed by yourself, any response filed by the respondent and your statement, I will decide if your application can proceed to arbitration.
Please provide your statement within 14 days of the date of this letter. If no statement is received I will consider your application on the material before me without further notice to you.

Yours faithfully,”

[6] Mr Hong provided a detailed statement on 28 August 2016. Mr Hong submitted that payment for time in lieu for the week following his termination of employment and annual leave which had accrued should count towards his period of employment.

[7] Whilst the respondent might owe Mr Hong monies for outstanding entitlements, on the material before me, I was satisfied that Mr Hong did not complete the minimum period of employment required by the Act.

[8] On 28 September 2016 I dismissed Mr Hong’s application.

SENIOR DEPUTY PRESIDENT

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