Jane Mansell v Fujifilm Australia Pty Ltd

[2015] FWC 8049

[2015] FWC 8049

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jane Mansell
v
Fujifilm Australia Pty Ltd
(U2015/13991)

DEPUTY PRESIDENT GOOLEY PERTH, 23 NOVEMBER 2015

Application for relief from unfair dismissal.

[1] Ms Jane Mansell alleged the termination of her employment by Fujifilm Australia was unfair. In her application she advised that she commenced employment on 1 May 2015 and she was given notice of termination of her employment on 8 October 2015.

[2] In the employer response Fujifilm stated that Ms Mansell’s employment commenced on 30 April 2015 and she was given notice of termination on 8 October 2015 and the dismissal took effect on 30 October 2015.

[3] Ms Mansell attached to her application a contract of employment which stated that the commencement date of her employment was 30April 2015. Ms Mansell also attached a letter dated 8 October 2015 which provides that her employment was terminated effective on 8 October 2015. She was required by 30 October 2015 to return property.

[4] Ms Mansell filed material in support of her application in which she advised that the dismissal took effect on 31 October 2015 because she was paid for the month of October. Fujifilm accepted that Ms Mansell’s final pay was processed on 30 October 2015 and that she returned the property. There is a dispute about the date on which the property was returned but that is not relevant to the matter to be determined.

[5] The Fair Work Commission is not required to hold a hearing unless there are disputed facts. I accept that Ms Mansell was employed from 30 April 2015 and was given notice of termination on 8 October 2015. While Ms Mansell said she did not commence until 1 May 2015 a finding that her employment commenced on 30 April 2015 is a finding in Ms Mansell’s favour.

[6] An employee is required to have served 6 months (1 year if employed by a small business) employment to be protected from unfair dismissal. s.383 of the Fair Work Act 2009 (the Act) 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.

[7] In determining whether Ms Mansell has served the minimum employment period, no assessment has been made about the merits of her case. The Commission has no discretion to waive the requirements of the Act.

[8] On the evidence before the Commission Ms Mansell has not served the minimum employment period and therefore she is not protected from unfair dismissal.

[9] 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.

[10] As a consequence the six months ended at midnight on 29 October 2015. As Ms Mansell was given notice of the termination of her employment on 8 October 2015 she was not protected from unfair dismissal and his application must be dismissed.

[11] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

 1 See s.40A of the Fair Work Act2009

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