Juanita Rutherford v Cigarette & Gift Warehousing (Franchising) Pty Ltd T/A Freechoice Australia

[2014] FWC 3077

[2014] FWC 3077

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Juanita Rutherford
v
Cigarette & Gift Warehousing (Franchising) Pty Ltd T/A Freechoice Australia
(U2014/4794)

COMMISSIONER WILLIAMS PERTH, 12 MAY 2014

Termination of employment.

[1] Ms Juanita Rutherford (the Applicant), has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The respondent is Cigarette & Gift Warehousing (Franchising) Pty Ltd trading as Freechoice Australia (the Respondent).

[2] The parties agree that the Applicant was first employed on 12 August 2013 and was dismissed 12 February 2014 and that the dismissal took effect on that same date.

[3] Sections 382 and 383 of the Act provide that an employee is only eligible to make an application for an unfair dismissal remedy if they have completed the minimum employment period of:

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

● six months—where the employer employs 15 or more employees.

[4] The applicable minimum employment period in this instance for the Applicant is six months.

[5] The Respondent has objected to the Applicant’s application on the grounds that she has not completed the six-month minimum employment period.

[6] The question to be determined by the Commission is given the Applicant’s employment commenced on 12 August 2013, had she completed the six-month minimum employment period when she was dismissed on 12 February 2014?

[7] In the case of Mr Ryan Prigge v Manheim Fowles Pty Ltd 1 Senior Deputy President Richards dealt with a similar situation and considered prior authority on the calculation of a “month”. Senior Deputy President Richards explained that:

“[8] In the current circumstances, however, there is no dispute between the parties as to the relevant dates: the Applicant’s employment commenced on 26 February 2009 and was terminated by notice and given effect at the same time on 25 August 2009.

WAS THE APPLICANT TERMINATED WITHIN THE MINIMUM PERIOD OF EMPLOYMENT?

[9] The Applicant contends that the minimum period of employment was completed on 25 August 2009 (when he was terminated at 9.00am that day and paid 1 week’s salary in lieu of notice).

[10] The Full Bench in Wilkinson v Skippers Aviation Pty Ltd considered (amongst other matters) the calculation of the 3 month probationary period under the Workplace Relations Act 1996. In so considering how 3 months was to be interpreted, the Full Bench found as follows:

‘[30] Regulation 30B(1)(c)(i) says “3 months or less”. This is to be interpreted by reference to the relevant provisions of the Acts Interpretation Act 1901.

[31] Section 22(1) of the Acts Interpretation Act includes:

“In any Act, unless the contrary intention appears:

...

(b) `Month’ shall mean calendar month;

...

(g) `Calendar month’ means a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month”.

[32] Section 46(1) of the Acts Interpretation Act includes:

“Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then:

(a) unless the contrary intention appears, expressions used in any instrument so made, granted or issued shall have the same meanings as in the Act conferring the power, and this Act shall apply to any instrument so made, granted or issued as if it were an Act and as if each such rule, regulation or by-law were a section of an Act”.

[33] Accordingly, no contrary intention in our view appearing, “3 months” in reg.30B(1)(c)(i) means 3 calendar months; that is, a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the third month following.

[34] If, therefore, a period of probation which commenced on 7 January 2000 was to be of 3 months or less it had, in our view, to end no later than immediately before the beginning of 7 April 2000. If it ended later than this, it was a period of more than 3 months and, pursuant to reg.30B(1)(c)(ii), a determination would have to be made whether the period was reasonable, having regard to the nature and circumstances of the employment.’

[11] I see no reason why the reasoning of the Full Bench should not apply to a minimum period of employment as stipulated at s.383 of the FW Act. Section 22(1)(b) and (g) of the Acts Interpretation Act 1901 applies to the calculation of the minimum period of employment as it applies to any other similar such statutory time period, where no contrary intention is evidence.

[12] On the Full Bench’s reasoning, the minimum period of employment must be completed “immediately before the beginning of” 26 August 2009, which is “immediately before the beginning of the corresponding day of the sixth month following the date on which the Applicant’s employment commenced.

[13] In the case before me, the Applicant’s employment was terminated at 9.00am on 25 August 2009.

[14] It cannot be found, therefore, that the Applicant had completed the minimum period of employment. This is because the Applicant, until midnight on 25 August 2009, was still within, or was still to complete the minimum period of employment, which must be taken to be the point in time which is “immediately before the beginning of” 26 August 2009.” [footnote deleted]

[8] In that case the employment began on 26 August 2009 and the six-month minimum employment period was completed at midnight on 25 August 2009. Because in that case the dismissal occurred before midnight on that last day of the minimum employment period the minimum employment period had not been completed.

[9] In this case the employment began on 12 August 2013 and the six-month minimum employment period was completed at midnight on 11 February 2013.

[10] The Applicant was not dismissed until 12 February 2013 which was the day after she had completed the six-month minimum employment period.

[11] Consequently the Respondent’s objection is incorrect and is dismissed. There is no impediment to the Applicant’s application proceeding.

[12] This application will now be passed to a Fair Work Commission Conciliator who will contact the parties in due course to list a conciliation conference.

COMMISSIONER

 1   [2010] FWA 28

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