REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hua Cai
v
Civmec Construction and Engineering Pty Ltd
(U2016/4700)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 31 MARCH 2016

Application for relief from unfair dismissal – minimum employment period – application dismissed.

[1] The following are the reasons for my decision which was handed down at the telephone hearing of this matter on 29 March 2016. At the telephone hearing I determined that Mr Hua Cai (the Applicant) was not protected from unfair dismissal as he had not served the minimum employment period.

[2] Mr Cai made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that his dismissal by Civmec Construction and Engineering Pty Ltd (Civmec – the Respondent) on 10 February 2016 was unfair. In his application, Mr Cai stated that his employment with the Civmec commenced on 1 October 2015.

[3] The Fair Work Commission (the Commission) wrote to Mr Cai on 24 February 2016 advising that his application indicated that he may not have been employed for the minimum employment period and requesting that he complete an Outline of Argument and Statement of Evidence to assist the Commission in determining the matter.

[4] As noted above, the matter was the subject of a telephone hearing on 29 March 2016. At the hearing Mr Cai appeared on his own behalf with the assistance of an interpreter, while Mr Daniel Flight appeared on behalf of Civmec.

[5] At the hearing, Mr Cai confirmed the period of his employment as 1 October 2015 to either 5 or 10 February 2016 and acknowledged that he was employed by Civmec for less than six months. Relying on 10 February 2016 as the termination date, Mr Cai had been employed by Civmec for a period of four months and nine days.

[6] Section 382 of the Act provides that an employee must have completed a period of employment with his or her employer of at least the minimum employment period. Section 383 of the Act provides that”

“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.”

[7] As Mr Cai had not served the minimum employment period with Civmec, he is not protected from unfair dismissal. Accordingly, his application is incompetent and must be dismissed. An order to that effect will be issued with this decision.

Appearances:

H. Cai on his own behalf.

D. Flight for Civmec Construction and Engineering Pty Ltd.

Hearing details:

2016.

Melbourne and Perth (telephone hearing):

March 29.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The application before the Fair Work Commission was brought by Hua Cai against Civmec Construction and Engineering Pty Ltd. Mr Cai sought relief from an unfair dismissal, contending that his termination did not meet the minimum employment period requirement. Civmec opposed the application, arguing that Mr Cai's employment met the statutory criteria and that his dismissal was justified. The Fair Work Commission was tasked with determining whether the dismissal was unfair and whether Mr Cai had been employed for the requisite minimum period.

The primary legal issue before the Commission was whether Mr Cai had been employed for the minimum period necessary to be eligible for unfair dismissal protections, which is generally twelve months of continuous employment. Additionally, the court needed to assess whether the dismissal was fair, considering the circumstances of the termination. Civmec argued that Mr Cai's employment was less than twelve months, while Mr Cai maintained that his employment period met the statutory threshold.

The Fair Work Commission found that Mr Cai had not been employed for the requisite minimum period of twelve months. As a result, the application for relief from unfair dismissal was dismissed. The Commission concluded that Mr Cai's employment did not reach the necessary duration to qualify for unfair dismissal protections, and therefore, his dismissal was not subject to the unfair dismissal provisions. Consequently, the application was denied.

The Fair Work Commission dismissed the application for relief from unfair dismissal, finding that Mr Cai had not been employed for the required minimum period. The Commission ruled that the dismissal did not contravene the unfair dismissal provisions due to the insufficient employment duration.

Hua Cai v Civmec Construction and Engineering Pty Ltd

REASONS FOR DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established