Jaymes Lench-McHenry v Traffic Management Solutions Victoria Pty Ltd

[2025] FWC 600

[2025] FWC 600

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jaymes Lench-McHenry
v

Traffic Management Solutions Victoria Pty Ltd

(U2024/15735)

DEPUTY PRESIDENT COLMAN MELBOURNE, 27 FEBRUARY 2025

Unfair dismissal application – minimum employment period not met – application dismissed

1. At a jurisdictional hearing earlier today, I dismissed an application made by Jaymes Lench-McHenry under s 394 of the Fair Work Act 2009 (Act) because he had not served the minimum employment period. The applicant’s employment with the respondent began on 30 April 2024. He was dismissed on 11 December 2024. Heath Erwin, the respondent’s director, submitted to the Commission a list of persons whom the company employed at the time of the applicant’s dismissal. He said that the list was compiled based on company records as at the date of the dismissal. It included casuals, except for one who Mr Erwin said had been unresponsive for several weeks. I concluded that this person was not a regular and systematic casual at the time of the dismissal.

1. Unlike the respondent, the applicant did not file submissions and materials. At the hearing, the applicant said that he believed that the respondent had employed three other casuals who were not on the company’s list, Olivia, Tom and Emily. In response, Mr Erwin said that these people had been employed during Mr Lench-McHenry’s employment, but that they were not employed at the time of his dismissal. He said that there was a high turnover of casuals in his business. The applicant then said that he had actually seen these three people at the depot in the week of his dismissal. I do not accept this. In my assessment it was an unconvincing afterthought to bolster the applicant’s case. But even if the applicant did see them at the depot that week, that would not mean that they were employed at the time of his dismissal. Mr Erwin was very clear that the only persons he employed at the time of the dismissal were those on his list. He included casuals, save for the one casual who had been unresponsive for weeks. I accepted Mr Erwin’s information. It was detailed, specific and credible.

1. I concluded that the respondent was a small business employer (s 23). I found that the respondent had 14 employees at the time of the dismissal, inclusive of the applicant, other regular and systematic casuals, and employees of associated entities. As the respondent was a small business employer, the minimum employment period was one year (s 383(b)). The applicant’s period of service was less than one year. He was therefore not a person protected from unfair dismissal (s 382(a)).

1. For the above reasons, the application was dismissed.

DEPUTY PRESIDENT

Hearing details:

2025
Melbourne (by telephone)
27 February

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