DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gaurav Suri
v
NTT Australia Pty Ltd
(U2020/12856)

DEPUTY PRESIDENT DEAN

SYDNEY, 13 NOVEMBER 2020

Application for an unfair dismissal remedy – minimum employment period not met – application dismissed

[1] This decision concerns an application by Mr Gaurav Suri (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009. The Applicant’s employment with NTT Australia Pty Ltd (Respondent) commenced on 13 January 2020 was terminated with effect from 6 July 2020. The unfair dismissal application was lodged on 25 September 2020.

[2] The Respondent objected to the application on the basis that it was made outside the 21 day statutory timeframe, that the Applicant’s employment did not meet the minimum employment period and his remuneration exceeded the high income threshold.

[3] The matter was listed for hearing by telephone today to determine the jurisdictional objection. At the hearing, the Applicant appeared on his own behalf and Ms Pilkington (HR Manager) appeared for the Respondent.

Minimum Employment Period

[4] Section 382 of the Act provides that a person is protected from unfair dismissal if the person completed a period of employment of at least the minimum employment period.

[5] Section 383 of the Act sets out the minimum employment period:

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.

[6] There is no dispute that the Applicant commenced employment with the Respondent on 13 January 2020 and that his dismissal took effect on 6 July 2020. The Applicant confirmed the accuracy of these dates at the commencement of the hearing today.

[7] I am satisfied and find that the Applicant has not completed the minimum employment period and therefore is not a person protected from unfair dismissal. Given my finding, it is not necessary to determine the remaining jurisdictional objections.

[8] I uphold the Respondent’s jurisdictional objection and dismiss the application. An order to that effect will be issued separately.

DEPUTY PRESIDENT

Appearances:

G Suri, on his own behalf.
S Pilkington, for NTT Australia Pty Ltd.

Hearing details:

2020.
Sydney (By telephone):
November 13.

Printed by authority of the Commonwealth Government Printer

In the Federal Circuit and Family Court of Australia, Gaurav Suri brought an application against NTT Australia Pty Ltd for an unfair dismissal remedy. Suri alleged that his termination was unjust and sought reinstatement and compensation. The central issue in this case was whether Suri's employment period met the minimum threshold required to lodge a claim for unfair dismissal. The court had to determine if Suri had been employed for at least six months, as stipulated by the Fair Work Act 2009.

The court examined the evidence provided regarding Suri's employment duration. It considered the employment contract, pay slips, and other documentary evidence presented by both parties. After evaluating the submissions and evidence, the court concluded that Suri had not met the minimum employment period requirement of six months. Consequently, the application for an unfair dismissal remedy was dismissed, as the statutory prerequisites for such a claim were not fulfilled. The decision was made based on the clear interpretation of the statutory provisions and the lack of evidence to substantiate the claim.

The court's reasoning was grounded in the statutory framework provided by the Fair Work Act 2009. Given the lack of evidence to demonstrate that Suri had been employed for the requisite period, the court found that it did not have jurisdiction to hear the application. Thus, the application for unfair dismissal was dismissed, and no further orders were made beyond this determination.

Gaurav Suri v NTT Australia Pty Ltd

DECISION

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