Grant Murdoch v Retro Blast Pty Ltd

[2015] FWC 534

[2015] FWC 534

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Grant Murdoch
v
Retro Blast Pty Ltd
(U2014/10765)

COMMISSIONER WILLIAMS PERTH, 20 JANUARY 2015

Termination of employment - minimum employment period.

[1] This matter involves an application made by Mr Grant Murdoch (Mr Murdoch or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Retro Blast Pty Ltd (the respondent).

[2] It was apparent from the materials filed in the application and the respondent’s reply that the applicant may not have completed the minimum employment period required by the legislation.

[3] Consequently a notice of listing setting a date for hearing was sent to the parties in October 2014 with directions for the respondent to provide any materials dealing with this issue and the applicant to provide any materials in reply following that. The notice of listing was both emailed and posted to Mr Murdoch.

[4] The respondent in compliance with the Commission’s directions provided written materials regarding the minimum employment period and these were emailed to Mr Murdoch on 7 November 2014.

[5] Mr Murdoch has not provided any materials in response to the materials filed by the respondent.

[6] The hearing of this matter proceeded on 20 January 2015. Mr Murdoch did not attend the hearing nor was there any representative in attendance on his behalf. The Commission proceeded to hear and determine the matter in the applicant’s absence.

Decision

[7] The uncontested evidence provided for the respondent at the hearing, which I accept, is that Mr Murdoch commenced working for the respondent on 3 October 2013 and his employment ceased on 30 June 2014 and that at this time the respondent employed four employees, including the applicant.

[8] I note the respondent asserts that Mr Murdoch was not dismissed.

[9] The Act in sections 382 and 383 provides that an employee is only eligible to make an application for an unfair dismissal remedy if they have completed the minimum employment period of:

• one year—where the employer employs fewer than 15 employees (a small business employer) or



• six months—where the employer employs 15 or more employees.

[10] The evidence demonstrates that the respondent employed fewer than 15 employees at the time Mr Murdoch’s employment ended and at that time he had worked for less than one year.

[11] Mr Murdoch at the time of his employment ending had not completed the applicable minimum employment period and so is not entitled under the legislation to make this application for an unfair dismissal remedy.

[12] This application will now be dismissed for want of jurisdiction and an order to that effect will be issued.

COMMISSIONER

Appearances:

A Williams on behalf of the respondent.

Hearing details:

2015.

Perth:

January 20.

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