Kyla Jane French v Buderim Menopause Clinic

[2023] FWC 1237

[2023] FWC 1237

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kyla Jane French

v

Buderim Menopause Clinic

(U2023/3269)

COMMISSIONER SIMPSON BRISBANE, 26 MAY 2023

Application for an unfair dismissal remedy

1. On 12 April 2023, Ms Kyla Jane French (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against Buderim Menopause Clinic.

1. The matter was listed for a conciliation before a Commission Conciliator on 18 May 2023 but the conciliation did not proceed. The matter was then allocated to me, and I listed the matter for a Directions Hearing on 12 June 2023. However, prior to this listing, the parties both filed written material.

1. The Respondent has raised a jurisdictional objection that the Applicant does not satisfy the minimum employment period, which in this case is a period of 12 months, as the Respondent is a small business employer with less than 15 employees. The Respondent has also raised an objection that the Applicant has not correctly identified the Respondent. Both parties have filed written material in support of their respective positions concerning whether the minimum employment period has been met in this case.

LEGISLATION

Minimum Employment Period

1. The Act provides the following:

“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.”

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

1. Having considered the material filed it is now apparent that the employment commenced on 2 April 2022 and the Applicant was summarily dismissed on 30 March 2023. The Applicant contests that the minimum employment period is satisfied as the Respondent did not pay outstanding entitlements until a date after the expiration of a period of 12 months. While this appears to be correct, it does not alter the fact that the employment relationship was brought to an end at the initiative of the Respondent on 30 March 2023 with immediate effect. The matter of whether the Respondent did or did not comply with a separate obligation to make good any outstanding entitlement is not to the point.

CONCLUSION

1. As it is now clear from the further material filed that the application is outside the jurisdiction of the Commission because the minimum employment period has not been met, the Commission has no power to deal with the matter any further and it is dismissed. An Order to this effect is contained in PR762532.

1. 
   The scheduled directions hearing on 12 June 2023 is vacated.

COMMISSIONER

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