Findley v Diamond Protection Pty Ltd

[2016] FWC 551

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Joshua Findley
v
Diamond Protection Pty Ltd T/A Diamond Protection
(U2015/12391)
COMMISSIONER RYAN	MELBOURNE, 1 FEBRUARY 2016

Application for relief from unfair dismissal - minimum employment period served.

[1]        The Applicant filed an application for an unfair dismissal remedy with the Fair Work

Commission on 21 October 2015. The Applicant alleged that he had been terminated at the

initiative of the employer on or about 19 October 2015.

[2]        The Respondent denied that the Applicant had been dismissed and further objected to

the application on the grounds that Applicant’s employment period did not meet the minimum

employment period.

[3]        The application was listed for a hearing on 16 December 2015 in relation to the

jurisdictional challenge that the Applicant had not been employed for the minimum

employment period.

The relevant legislation

[4]        The relevant provisions of the Act for the purposes of the present matter are as

follows:

“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;

[2016] FWC 551

(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.

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.

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.

(2)	However:
(a) a period of service as a casual employee does not count towards the
employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and

systematic basis; and

(ii) during the period of service as a casual employee, the employee had

a reasonable expectation of continuing employment by the employer on

a regular and systematic basis; …”

[5]        As s.384 refers to the period of continuous service with the employer it is necessary to

have regard to the definition of continuous service in s.22 of the Act:

“22 Meanings of service and continuous service

General meaning

(1) A period of service by a national system employee with his or her national

system employer is a period during which the employee is…