Edward Irons v Medical Emergency Solutions / Link Health Pty Ltd T/A Medical Emergency Solutions

[2015] FWC 2146

[2015] FWC 2146

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Edward Irons
v
Medical Emergency Solutions / Link Health Pty Ltd T/A Medical Emergency Solutions
(U2014/13866)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 26 MARCH 2015

Application for relief from unfair dismissal.

[1] Mr Edward Irons alleged the termination of his employment by Medical Emergency Solutions (MES) was unfair. In his application, he advised that he commenced employment on 28 April 2014 and his employment ended on 10 November 2014.

[2] In the employer response, MES submitted that it had six full time employees and one part time employee and objected to Mr Irons’ application because Mr Irons had not served the minimum period of employment.

[3] The matter was listed for a telephone hearing on 26 March 2015.

[4] Mr Irons filed an outline of argument and listed 17 employees. He was unsure of the names of all of the employees.

[5] MES filed a response in which it listed seven employees. It advised that it had 10 subcontractors.

[6] Statutory declarations were filed by six persons that they were subcontractors.

[7] Mr Irons did not seek to challenge the evidence presented by MES.

[8] As at least six of the persons relied upon by Mr Irons to support his claim that MES employed 17 employees were subcontractors, MES had fewer than 15 employees at the time Mr Irons was dismissed.

[9] An employee is required to have served six months (one year if employed by a small business) employment to be protected from unfair dismissal. Section 383 of the Fair Work Act 2009 (the Act) provides as follows:

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.

[10] Mr Irons had been previously been employed with MES or its predecessor from October 2012 until he resigned in December 2013. That service does not count towards Mr Irons’ period of employment.

[11] Section 384(1) of the Act provides as follows:

384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

[12] There are some exceptions to the requirement that there be a continuous period of employment, but they do not apply to Mr Irons.

[13] In determining whether Mr Irons has served the minimum employment period, no assessment has been made about the merits of his case. The Fair Work Commission has no discretion to waive the requirements of the Act.

[14] On the evidence before the Commission, Mr Irons has not served the minimum employment period. As a consequence, at the time of his dismissal he was not protected from unfair dismissal and his application must be dismissed.

DEPUTY PRESIDENT

Appearances:

E Irons on his own behalf.

B Siviour for the Respondent.

Hearing details:

2015.

Melbourne and Perth by telephone link.

26 March.

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