Joshua Mackay v ControlFab Pty Ltd
[2021] FWC 5989
| [2021] FWC 5989 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Joshua Mackay
v
ControlFab Pty Ltd
(U2021/6548)
| Deputy President Hamilton | MELBOURNE, 29 SEPTEMBER 2021 |
Application for relief from unfair dismissal - minimum employment period not met - application dismissed.
Introduction and background
On 25 July 2021, Mr Joshua Mackay (Applicant) made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). ControlFab Pty Ltd (Respondent) objected to the application on the basis that the Applicant had not completed the minimum employment period required by the FW Act.
The matter was allocated to my Chambers on 11 August 2021. Directions were issued requiring the parties to file any submissions or evidence they wished to rely on in the matter. The matter listed for Jurisdictional Determinative Conference and heard on 24 September 2021.
The FW Act
Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.
Section 383 of the FW Act sets out the minimum employment period as follows:
“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.”
Consideration
The Applicant indicated that his employment commenced on 1 February 2021 and ceased on 15 July 2021.[1] The Respondent did not dispute these dates.[2] The Respondent confirmed that it was not a small business employer which was not disputed by the Applicant.[3]
On the material before me, and this is not in dispute, it appears that the Applicant was employed for a period of 5 months and 15 days. This period of employment is less than the required statutory minimum employment period required to be served by a person seeking to apply for an unfair dismissal remedy under the FW Act.
Conclusion
In the circumstances of this matter, I am satisfied the Applicant has not completed the required minimum employment period and the application must be dismissed because the period of employment required to be served under ss.382-383 has not been served. The applicant is not a person protected from unfair dismissal by s.382. I am therefore required to dismiss his application. An Order to this effect is contained in PR734312.
DEPUTY PRESIDENT
[1] Applicant’s outline of argument: objections, q.2(a).
[2] Respondent’s outline of argument: objections, q.2(a).
[3] Audio recording of Jurisdictional Determinative Conference, 24 September 2021, 00:04:52-00:05:06.
Printed by authority of the Commonwealth Government Printer
Appearances:
Mr J Mackay the Applicant
Mr T Fuimaono-Page, Ms S Kirton, Ms J Howard for the Respondent
Hearing details:
2021
Melbourne (via teleconference)
24 September
<PR734310>
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