John Henry v EMT Recruit

[2014] FWC 2

[2014] FWC 2

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Henry
v
EMT Recruit
(U2013/14543)

COMMISSIONER WILLIAMS PERTH, 3 JANUARY 2014

Termination of employment - minimum employment period.

[1] This matter involves an application made by Mr John Henry (Mr Henry or the applicant) under section 394 of the Fair Work Act 2009 (the Act). The respondent to this application is EMT Recruit (the respondent).

[2] Mr Henry’s application says he was employed on 28 December 2012 and his dismissal took effect on 28 February 2013. The period of employment of Mr Henry was only two months.

[3] Section 390 of the Act says if a person has been unfairly dismissed the Commission may only order a remedy where the Commission is satisfied that the person was protected from unfair dismissal.

[4] Section 382 of the Act defines when a person is protected from unfair dismissal as below:

“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 $129,300 from 1 July 2013”

[5] Section 383 of the Act defines the meaning of “minimum employment period” as below:

“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.”

[6] The effect of these provisions is that an employee is only protected from unfair dismissal if they have completed the minimum employment period of:

• six months—where the employer employs 15 or more employees; or



• one year—where the employer employs fewer than 15 employees (a small business employer).

[7] An employee who has not completed an employment period of six months with their employer is not protected from unfair dismissal.

[8] Given these limitations in the legislation the Commission wrote to Mr Henry explaining the situation and advising him that it appeared he was not able to make this application and that the Commission intended to dismiss his application for want of jurisdiction however if he had any evidence or submissions he wished to make regarding this he should provide these to the Commission.

[9] Subsequently Mr Henry provided some materials to the Commission however nothing in those materials suggests other than that Mr Henry was employed for less than six months at the time he was dismissed.

[10] Based on the information before the Commission I find that Mr Henry was employed for less than six months at the time his dismissal took effect.

[11] Consequently Mr Henry is not a person who is protected from unfair dismissal and so the Commission has no jurisdiction to order a remedy even if it could be demonstrated that Mr Henry was unfairly dismissed.

[12] Unfortunately Mr Henry is not able to pursue an unfair dismissal application and his application must now be dismissed for want of jurisdiction. An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR546348>