Hany Attia v Dr Nader Khodragha Pty Ltd T/A Back and Foot Clinics (Australia)

[2019] FWC 385

[2019] FWC 385

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hany Attia
v
Dr Nader Khodragha Pty Ltd T/A Back and Foot Clinics (Australia)
(U2018/9421)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 23 JANUARY 2019

Application for an unfair dismissal remedy – no jurisdiction – application dismissed.

[1] Hany Attia (the applicant) has filed an application for an unfair dismissal remedy in relation to the termination of his employment by Dr Nader Khodragha Pty Ltd T/A Back and Foot Clinics (the respondent).

[2] The application was heard yesterday, 22 January 2019. The applicant appeared for himself and Mr Michael Burns, solicitor, appeared for the respondent.

[3] I gave my decision on transcript at the conclusion of the hearing. This is an edited version of that decision.

[4] The respondent has made two jurisdictional objections:

a. that the applicant was not an employee but a contractor; and
b. that the applicant did not complete the minimum employment period necessary to be protected from unfair dismissal.

[5] Based on the evidence it is at least strongly arguable that the applicant was an employee. However I need not determine this issue as I am satisfied that he has not completed the minimum employment period necessary to be protected from unfair dismissal.

[6] I am satisfied, based on the evidence, that the applicant commenced work for the respondent in October 2017 and ceased to do so on 25 August 2018 – that is a period of less than 12 months.

[7] I am also satisfied based on the statements of Dr Khodragha, Andrianna Benjamin and Michael Corben that the respondent had less than 15 employees at the time the applicant ceased to work for the respondent.

[8] Of the 17 alleged employees named by the applicant, I am satisfied that Dr Khodragha, and Mr Corben were not employees of the respondent, and Jacquie Rayeroux and Haijer Al-Jumaily had left the respondent before 25 August 2018.

[9] Under the Fair Work Act 2009 (Cth) it follows:

a. The respondent was a small business employer at the relevant time; and
b. The relevant minimum period of employment necessary for the applicant to be protected from unfair dismissal was 12 months.

[10] As the applicant had not worked for the respondent for 12 months he was not protected from unfair dismissal at the time he ceased to work for the applicant.

[11] Accordingly there is no jurisdiction to grant the applicant an unfair dismissal remedy.

[12] The application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Applicant for himself.

Mr M Burns for the respondent.

Hearing details:

2019.

Sydney:

January 22.

Printed by authority of the Commonwealth Government Printer

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