Kevin Chandler v Meridian Services Pty Ltd

[2015] FWC 6844

[2015] FWC 6844

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kevin Chandler
v
Meridian Services Pty Ltd
(U2015/4726)

COMMISSIONER WILLIAMS PERTH, 8 OCTOBER 2015

Termination of employment - jurisdiction - minimum employment period.

[1] This decision concerns an unfair dismissal remedy application by Mr Kevin Chandler (Mr Chandler or the applicant) made under section 394 of the Fair Work Act 2009 (the Act). The respondent is Meridian Services Pty Ltd (Meridian Services or the respondent).

[2] The form F2 - Unfair Dismissal Application completed by Mr Chandler stated that the date he began working for Meridian Services was 14 May 2013, that he was notified of his dismissal on 9 April 2015 and that his dismissal took effect on 10 April 2015.

[3] During the hearing of this matter it became apparent that Mr Chandler may not have completed the minimum employment period because prior to October 2014 he had been employed by a labour hire company not the respondent.

[4] Section the 382 of the Act, which is set out below, explains that a person is protected from unfair dismissal only if they have completed the required minimum employment period.

“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.”

[5] If a person has not completed the relevant minimum employment period they are unable to make an unfair dismissal remedy application.

[6] Section 383 of the Act, which is set out below, provides there are different minimum employment periods dependent upon whether or not the employer is a small business employer.

“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.”

[7] Section 23 of the Act, which is set out below, says that a small business employer is one that employs fewer than 15 employees at the time of a person’s dismissal.

“23 Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time. …”

The evidence

[8] At the hearing of this matter Mr Chandler gave evidence and he also called Ms Jodie Sheppard (Ms Sheppard), the Operations Manager for Meridian Services, to give evidence. Mr Tom Fontaine (Mr Fontaine) a Director of Meridian Services gave evidence for the respondent.

[9] Mr Chandler also tendered a witness statement from Mr Kevin Minchinton, the previous owner of Meridian Services. Mr Minchinton did not attend the hearing however Mr Fontaine did not object to his statement forming part of the evidence before the Commission.

[10] Mr Fontaine and Mr Chandler both stated from the bar table that at the time Mr Chandler was notified he was dismissed, 9 April 2015, the respondent employed fewer than 15 employees. Given there is no dispute between the parties I accept that at the time Mr Chandler was notified of his dismissal the respondent employed fewer than 15 employees and so was a small business employer within the meaning of section 23 of the Act.

[11] The evidence of Ms Sheppard 1 is that Mr Chandler was employed through a labour hire company from the middle of June 2013 but he did not become a direct employee of Meridian Services until 13 October 2014.

[12] Mr Fontaine’s evidence confirmed this starting date of 13 October 2014. Mr Chandler in his evidence confirmed that he understood when he was dismissed that he was a few days short of having completed six months employment with Meridian Services.

[13] I find on the evidence above that Mr Chandler was first employed by Meridian Services on 13 October 2014, he was notified of his dismissal on 9 April 2015 and his dismissal took effect on 10 April 2015.

Consideration

[14] Meridian Services was a small business employer at the relevant time and therefore the minimum employment period that Mr Chandler must have served to be protected from unfair dismissal was one year. The evidence is that Mr Chandler had not been employed by Meridian Services for one year at the time he was dismissed. I note that even if Meridian Services had been a large employer Mr Chandler had not completed six months employment and so would still not have completed the requisite minimum employment period.

[15] Because Mr Chandler had not completed the required minimum employment period he was not protected from unfair dismissal. As a consequence Mr Chandler was not able to make this application for an unfair dismissal remedy and this application must be dismissed. An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

K. Chandler on his own behalf.

T. Fontaine on behalf of the respondent.

Hearing details:

2015.

Perth:

September 30.

 1   Exhibit A2.

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