Jamie Ferguson v Moran Earthworks Pty Ltd
[2012] FWA 9299
•31 OCTOBER 2012
[2012] FWA 9299 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jamie Ferguson
v
Moran Earthworks Pty Ltd
(U2012/13126)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN | ADELAIDE, 31 OCTOBER 2012 |
Termination of employment - failure to attend - extension of time - small business - minimum period of employment - application dismissed.
[1] On 11 September 2012 Mr Ferguson lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which he sought relief with respect to the termination of his employment with Moran Earthworks Pty Ltd (Moran). Mr Ferguson’s application was not settled through the conciliation process and was referred to me for determination.
[2] The application was the subject of a hearing on 30 October 2012. These reasons for decision confirm the conclusions I detailed during the hearing. Mr Ferguson did not attend this hearing and provided no reason for his non-attendance. Moran was represented by Mr Putland of the Master Builders Association of SA. Notwithstanding that I am inclined to the view that Mr Ferguson’s non-attendance indicates that he no longer seeks to pursue the application, I have nevertheless considered the matter on the material before me.
[3] In Directions which I issued on 5 October 2012, I specified the purpose of this hearing in so far as it related to the preliminary issues specified in s.396 of the FW Act. This section states:
“396 Initial matters to be considered before merits
FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[4] The termination of Mr Ferguson’s employment took effect on 21 August 2012. As a consequence, his application was lodged some seven days outside of the time limit specified in s.394. Section 394(3) states:
“394 Application for unfair dismissal remedy
....
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[5] No explanation of the reasons for the delay in lodgement of the application has been provided to me.
[6] On the material before me I am not satisfied that Mr Ferguson took any action other than the late lodgement of this application to dispute the termination of his employment.
[7] I consider that the only prejudice to the employer is the prejudice caused by the delay.
[8] In terms of the merits of the application, Mr Ferguson’s application confirms that he commenced employment on 31 January 2012. Hence, at the time of the termination of his employment he had been employed for approximate 6½ months.
[9] Sections 382 and 383 state:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
Note: High income threshold indexed to $123,300 from 1 July 2012
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.”
[10] A small business employer is defined in s.23 of the FW Act. Mr Alexander Moran has provided an affidavit which confirms that, as at 21 August 2012, Moran employed 13 people. As a consequence I consider that Moran is a small business employer and accordingly, Mr Ferguson had to have worked for Moran for 12 months immediately before his dismissal in order to have achieved the requisite minimum employment period so as to be protected from unfair dismissal. He has not done so and is therefore unable to pursue this application.
[11] On this basis there is simply no basis upon which an extension of time could be granted.
[12] Mr Ferguson’s application for an extension of time is refused and the application is dismissed. An Order [PR530872] to this effect will be issued.
SENIOR DEPUTY PRESIDENT
Appearances:
D Putland on behalf of the Respondent.
Hearing details:
2012.
Adelaide:
October 30.
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