Julio Moreno Yactayo Cesar v WTS Recruitment

[2023] FWC 1812

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Julio Moreno Yactayo Cesar
v

WTS Recruitment

(U2023/5352)

COMMISSIONER SIMPSON

BRISBANE, 26 JULY 2023

Application for an unfair dismissal remedy – Jurisdictional objection that the Applicant does not satisfy the minimum employment period – Application dismissed.

During a directions hearing on 24 July 2023 I dismissed application U2023/5352 on the basis that the application did not fall within the jurisdiction of the Fair Work Commission (the Commission). I indicated to the parties I would publish written reasons. Below are those reasons.

On 16 June 2023, Mr Julio Moreno Yactayo Cesar (Mr Cesar /the Applicant) applied to the Fair Work Commission under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging he was unfairly dismissed from his employment with WTS Recruitment (the Respondent).

The Respondent declined to participate in conciliation. The Respondent filed a Form F3 Response to the application raising a jurisdictional objection that the Applicant was not an employee. After the filing of its Form F3 the Respondent raised a further objection that the Applicant had not satisfied the minimum employment period.

A directions hearing was listed for Monday 24 July 2023. The Applicant appeared on his own behalf by telephone from Peru where he is a resident, and he was assisted by an interpreter. The Respondent was represented by Ms Janet Moreno also appearing by telephone. The Applicant’s Form F2 application stated that he was employed from 26 July 2022 until 6 June 2023, and on the Form F2 where a question is asked about the number of employees employed in the workplace at the time of termination the Applicant indicated it was between 1 and 14. The Respondent Form F3 Response stated that it has 3 employees.

At the directions hearing I asked the Applicant to confirm the dates he maintained that he was employed, and he confirmed through the interpreter that they were the dates that he had stated on his Form F2 application. It was put to the Applicant that the Respondent maintained that it had three employees, and he did not dispute that number.

It is common ground that the Respondent is a small business employer. It is apparent that the Applicant has been employed for less than 12 months. The Applicant does not meet the minimum employment period as defined in section 383 of the Act, and is therefore not a person protected from unfair dismissal as defined in section 382. As the Applicant is not protected from unfair dismissal the Commission has no power to deal with his application and on that basis the application is dismissed. An order to that effect will be issued separately and concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Julio Moreno Yactayo Cesar, has filed an application for an unfair dismissal remedy against WTS Recruitment. The application was dismissed by Commissioner Simpson on 26 July 2023, on the basis that the application did not fall within the jurisdiction of the Fair Work Commission (FWC). The applicant, who was a resident of Peru, alleged that he was unfairly dismissed from his employment with WTS Recruitment. The respondent objected to the FWC's jurisdiction, arguing that the applicant was not an employee and had not satisfied the minimum employment period.

The legal issues that the court had to decide in this case were whether the applicant was an employee and whether he had satisfied the minimum employment period. The applicant claimed to have been employed from 26 July 2022 until 6 June 2023, while the respondent stated that it had three employees. The applicant did not dispute the number of employees at the respondent's workplace. The court noted that the applicant had been employed for less than 12 months, which is the minimum employment period as defined in section 383 of the Fair Work Act 2009.

The court found that the applicant did not meet the minimum employment period, and therefore, was not protected from unfair dismissal as defined in section 382 of the Fair Work Act 2009. As the applicant was not protected from unfair dismissal, the FWC had no power to deal with the application. The court dismissed the application on this basis. The court also noted that an order to that effect would be issued separately and concurrently with this decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established