Jeremy Marsh v Fulton Hogan Construction Pty Ltd & Fulton Hogan Industries Pty Ltd T/A Fulton Hogan

[2017] FWC 3294

[2017] FWC 3294

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeremy Marsh
v
Fulton Hogan Construction Pty Ltd & Fulton Hogan Industries Pty Ltd T/A Fulton Hogan
(U2017/4836)

COMMISSIONER GREGORY MELBOURNE, 19 JUNE 2017

Application for relief from unfair dismissal - termination of employment - jurisdictional objection - minimum employment period not served - application dismissed

Introduction

[1] Mr Jeremy Marsh commenced employment with Fulton Hogan Construction Pty Ltd & Fulton Hogan Industries Pty Ltd T/A Fulton Hogan Services (“Fulton Hogan”) on 7 November 2016 and worked with the business until he was dismissed on 28 April 2017. He has now lodged an unfair dismissal application.

[2] Fulton Hogan objects to the application on the basis that Mr Marsh is not a person protected from unfair dismissal because he has not completed the 6 month minimum employment period required under s.382 of the Fair Work Act 2009 (Cth) (“the Act”). This decision accordingly deals with the issue of Mr Marsh’s length of service with Fulton Hogan and whether he is a person who has completed the required “minimum employment period”. In the event the Commission finds he has not completed the minimum employment period, then his application must be dismissed. However, if it finds he has completed the relevant period, then the application will be relisted to enable his substantive application to be dealt with.

[3] Mr Marsh appeared on his own behalf. Ms Sandra Whitham, who is the Payroll and HR Coordinator at Fulton Hogan, appeared on its behalf.

The Legislation

[4] Section 382 of the Act provides that 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.” 1

[5] Section 383 of the Act continues to provide that 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 …” 2

The Evidence and Submissions

[6] Mr Marsh states that he was employed by WorkPac Bunbury from November 2015 until November 2016, and during this time he was located at the Fulton Hogan site at Busselton. WorkPac provides a range of services to business including a labour hire service. Mr Marsh said he was provided with keys and a swipe card to access the site during this time, but was paid by and continued to be employed by WorkPac Bunbury during this period. He then commenced as a permanent employee with Fulton Hogan on 7 November 2016.

[7] Mr Marsh also provided a witness statement, although the content of that statement deals primarily with the circumstances involving his termination, and refers particularly to what occurred on 24, 26, and 28 April 2017.

[8] Ms Sandra Whitham is the Payroll and HR Coordinator at Fulton Hogan. Her witness statement indicates that Mr Jeremy Marsh was first employed by Fulton Hogan on 7 November 2016, but was then dismissed on 28 April 2017. He was initially employed on a limited tenure basis from 7 November 2016 to 31 December 2017. In addition, prior to being employed by Fulton Hogan he completed the required employment medical examination on 21 October 2016, which is obligatory for all new employees. After successfully completing that process he was then provided with a formal letter of offer of employment, which he accepted on 3 November 2016. On 7 November 2017 he received a new employee pack, including his limited tenure employment contract, which he signed and returned on 9 November 2016. He then attended the company induction on his first day of employment. Copies of this documentation were provided to the Commission by Fulton Hogan.

[9] Fulton Hogan indicates, in conclusion, in its written submissions that given his period of employment of 5 months and 15 days Mr Marsh has not completed the “minimum employment period” of 6 months which is required before he can be considered to be to be a person that is protected from unfair dismissal.

Consideration

[10] Mr Marsh considers that he has been unfairly dismissed and indicates, in particular, that he did not receive appropriate training in order to enable him to carry out his responsibilities at work.

[11] However, sections 382 and 383 of the Act make clear that an employee is only protected from unfair dismissal if they have completed the 6 months minimum employment period in the case of a business with more than 15 employees.

[12] Mr Marsh has clearly worked at the Busselton site for a period of more than 6 months. However, based on the submissions and evidence provided by Fulton Hogan, and on the basis of Mr Marsh’s own acknowledgement, he has only been a direct employee of Fulton Hogan since 7 November 2016. Prior to that time he was employed by WorkPac Bunbury while working at the Fulton Hogan site. It follows from this that his total period of employment as a direct employee with Fulton Hogan only amounts to 5 months and 15 days.

Conclusion

[13] Given these circumstances, I am not satisfied that Mr Marsh has completed the requisite 6 month minimum employment period required by ss.382 and 383 of the Act. It follows from this that he is not a person who is protected from unfair dismissal and therefore his unfair dismissal application must be dismissed.

COMMISSIONER

Appearances:

J. Marsh appeared on his own behalf.

S. Whitham appeared on behalf of the Respondent.

Hearing details:

2017.

Melbourne (via telephone):

June 9.

 1   Fair Work Act 2009 (Cth) s 382.

 2   Fair Work Act 2009 (Cth) s 383.

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