Hasan Cimenkaya v Polynt Composites Australia Pty Ltd

[2015] FWC 3487

[2015] FWC 3487

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hasan Cimenkaya
v
Polynt Composites Australia Pty Ltd
(U2015/7200)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 21 MAY 2015

Application for relief from unfair dismissal.

[1] Mr Hasan Cimenkaya alleged the termination of his employment by Polynt Composites Australia Pty Ltd was unfair. In his application, he advised that he commenced employment on 13 October 2014 and he was given notice of termination on 9 April 2015 and his employment ended on 17 April 2015.

[2] An employee is required to have served six months (one year if employed by a small business) employment to be protected from unfair dismissal. Section 383 of the Fair Work Act 2009 provides as follows:

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.

[3] In determining whether Mr Cimenkaya has served the minimum employment period, I must have regard to his starting date and the date when he was given notice of termination.

[4] There is no factual dispute about the dates of Mr Cimenkaya’s employment and in those circumstances I am not required to conduct a hearing/conference.

[5] Mr Cimenkaya calculated that he had worked 26 weeks when he was given notice of termination and that he in fact worked 27 weeks. However, the requirement is not that Mr Cimenkaya has worked 26 weeks, but that at the date Mr Cimenkaya was given notice of termination, he had worked six months.

[6] Section 22 of the Acts Interpretation Act 1901, as it existed at 25 June 2009, 1 provides as follows:

“In any Act, unless the contrary intention appears:

...

(b) `Month' shall mean calendar month;

...

(g) `Calendar month' means a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month".

[7] Given Mr Cimenkaya commenced employment on 13 October 2014, the six month period ended at midnight on 12 April 2015. By that time, Mr Cimenkaya had been given notice of termination and hence he had not served the minimum employment period and therefore he is not protected from unfair dismissal. Mr Cimenkaya’s application must therefore be dismissed.

DEPUTY PRESIDENT

 1 See s.40A of the Fair Work Act 2009.

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