Frederick Mackenzie v John Carey T/A Passionate Baker

[2013] FWC 5755

[2013] FWC 5755

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Frederick Mackenzie
v
John Carey T/A Passionate Baker
(U2013/10004)

COMMISSIONER WILLIAMS PERTH, 16 AUGUST 2013

Termination of employment - jurisdiction - minimum employment period.

[1] Mr Frederick Mackenzie (Mr Mackenzie or the applicant) has made an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act).

[2] Section 390 of the Act prescribes that the Commission can only order a remedy for an employee’s unfair dismissal if the Commission is satisfied that the person was protected from unfair dismissal at the time of being dismissed.

[3] Further section 382 of the Act prescribes one condition for an employee to have been protected from unfair dismissal is that they had completed a period of employment of at least the minimum employment period. Section 383 of the Act prescribes that minimum employment period is one year for an employee of a small business employer and six months for an employee of a larger employer.

[4] Accordingly an employee who has not completed an employment period of at least six months is not protected from unfair dismissal regardless of whether their employer was or was not a small business. These sections of the legislation are set out below.

“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;

(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.

Note: High income threshold indexed to $123,300 from 1 July 2012”

“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.”

[5] In his application in answer to the question of what was his period of employment Mr Mackenzie stated that he was employed on 7 January 2013 and he was notified of his dismissal on 13 May 2013 and his dismissal took effect that same day. This information provided by Mr Mackenzie means that he was employed for less than six months at the time of dismissal.

[6] On receipt of Mr Mackenzie’s application registry staff from the Commission discussed with him on the telephone and then wrote to him on 31 May 2013 explaining that because he was employed for less than six months at the time of his dismissal he has not completed the required minimum period of employment and consequently the Commission has no jurisdiction to deal with his application. The correspondence requested that he advise whether he wished to proceed with his application.

[7] On 11 June 2013 Mr Mackenzie rang and advised that he did wish to continue with his application.

[8] On 24 July 2013 I wrote to Mr Mackenzie explaining that the Act only provides that certain employees are able to make applications for a remedy on the grounds that they have been unfairly dismissed, referring him to sections 382 and 383 of the Act and advising him that if the dates regarding his employment and his dismissal were correct as provided on his application then his application could not proceed and will be dismissed.

[9] My letter to Mr Mackenzie invited him to provide any information relating to his period of employment by 8 August 2013. That letter was both posted and emailed to Mr Mackenzie.

[10] As at the date of this decision there has been no further contact from Mr Mackenzie.

Conclusion

[11] Based on the information provided in Mr Mackenzie’s application, and in the absence of any further information having been provided by him, I find that Mr Mackenzie has completed a period of employment with the respondent of less than six months.

[12] Consequently I am satisfied that Mr Mackenzie has not completed the minimum employment period required by the Act to make this application. This application therefore is beyond jurisdiction and will be dismissed. An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

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