John Henry v EMT Recruit

[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

The case of John Henry against EMT Recruit involved a dispute over the termination of John Henry's employment. John Henry, an employee of EMT Recruit, was dismissed from his position, and he challenged the termination on the grounds that it did not comply with the minimum employment period stipulated in his employment contract. The matter was brought before the court to determine whether the termination was lawful.

The primary legal issue before the court was whether the dismissal of John Henry complied with the contractual requirement for a minimum employment period. The court needed to examine the terms of the employment contract, the circumstances surrounding the termination, and whether the employer had followed the correct procedures as outlined in the contract. Additionally, the court had to consider if the employer's actions were consistent with the common law principles regarding the termination of employment.

In reaching its decision, the court meticulously reviewed the terms of the employment contract and the evidence presented by both parties. It found that the employment contract did indeed stipulate a minimum employment period, which had not been met at the time of John Henry's dismissal. The court further considered the procedural fairness and the adherence to the contractual terms by the employer. After careful deliberation, the court determined that the employer had not followed the correct procedures as outlined in the contract, and therefore, the dismissal was unlawful. Consequently, the court ruled in favour of John Henry, finding that the termination of his employment was invalid due to the non-compliance with the specified minimum employment period.

The court ordered that John Henry's dismissal be deemed unlawful and that EMT Recruit must reinstate him to his former position, along with any accrued entitlements. Additionally, the court directed that EMT Recruit compensate John Henry for any loss of earnings and related expenses resulting from the unlawful termination. This decision underscored the importance of adhering to contractual terms and procedural fairness in employment terminations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established