Janya Eighani v Myer Pty Ltd

[2010] FWA 2270

[2010] FWA 2270
[Note: a correction has been issued to this document - see 2010FWA2270_PR995244 signed 18 March 2010]

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Janya Eighani
v
Myer Pty Ltd
(U2010/5930)

COMMISSIONER DEEGAN CANBERRA, 17 MARCH 2010

Termination of Employment – minimum employment period.

[1] This matter arises from an application for unfair dismissal remedy filed on 12 February 2010 pursuant to s.394 of the Fair Work Act 2009 (“the Act”) by Ms Janya Eighani (“the Applicant”) in relation to the termination of her employment by Myer Pty Ltd (“the Respondent”)

[2] On 17 February 2010, the respondent filed an objection to the application which stated:

1. The Respondent objects to the application for unfair dismissal under section 382 and 394 of the Fair Work Act 2009 (“Act”).

2. The Respondent submits that in accordance with section 382 of the Act, the Respondent is protected from unfair dismissal, as the Applicant had not completed the minimum employment period in accordance with section 383 of the Act at the date of termination.

3. The Applicant's employment commenced on 28 May 2009 (refer attachment 1 “contract of employment”) and ceased on 1 November 2010 (refer attachment 2 “extract from the Myer Payroll System”) and attachment 3 (date and signatures on discussion record.)

4. The Respondent further submits that the application should be rejected as out of time in accordance with section 393. The Applicant has lodged her application 86 days out of time and the Respondent submits that she has not provided exceptional circumstances for the delay under s.393 (3) of the Act, (refer also Mr Robert Lim v Downer EDI Mining U2009/10560).

[3] On 26 February 2010 I wrote to the applicant seeking further information by 15 March 2010 in response to the question of whether the applicant had completed the relevant statutory qualifying period pursuant to s.383 of the Act to be protected from unfair dismissal.

[4] To date, no submissions have been received from the applicant.

The Legislation

[5] Section 382 and 383 relevantly state:

Section 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.”

Section 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.

Conclusion

[6] On the basis of the unchallenged information supplied by the respondent when making the objection to the application for unfair dismissal remedy, I accept that the Applicant commenced employment with the respondent on 28 May 2009. I am also satisfied that the applicant’s employment was terminated on 1 November 2010. The Applicant was employed by the Respondent for a period of less than 6 months.

[7] Pursuant to s.382 of the Act, the applicant is not protected from unfair dismissal and the application for relief under s.394 must therefore be dismissed. An order to this effect will be issued separately.

COMMISSIONER

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