Luciano Chiodo v The Auw Unit Trust T/A All U Want Building Supplies Pty Ltd

[2020] FWC 654

[2020] FWC 654

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Luciano Chiodo
v
The AUW Unit Trust T/A All U Want Building Supplies Pty Ltd
(U2019/14006)

DEPUTY PRESIDENT MASSON MELBOURNE, 10 FEBRUARY 2020

Application for an unfair dismissal remedy – minimum employment period not served – application dismissed.

Introduction

[1] On 12 December 2019, Mr Luciano Chiodo (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with the AUW Unit Trust T/A All U Want Building Supplies Pty Ltd (the Respondent) was unfair.

[2] The Respondent objects to the application being heard on the basis that the Applicant’s period of service did not meet the minimum employment period and as a consequence the Applicant is not a person protected by the unfair dismissal provisions of the Fair Work Act 2009 (Cth) (the Act). Further, the Respondent objects on the ground that the application was not filed within the statutory 21-day period following the Applicant’s termination of employment.

[3] Determination of the Respondent’s jurisdictional objection was set down for a hearing on 7 February 2020.

[4] The Applicant appeared on his own behalf while Directors Mr Jim Leos and Mr Dennis Kafillinos appeared for the Respondent.

Background

[5] The Respondent operates a building supplies business in Preston, Victoria and at the time of the Applicant’s dismissal employed 21 employees.

[6] It was not contested that the Applicant commenced employment with the Respondent on 1 January 2018 and resigned from that employment on 12 June 2019 (the First Period of Employment). The Applicant commenced a second period of employment on 12 August 2019 and was dismissed by the Respondent on 11 November 2019 (the Second Period of Employment).

Legislative framework

[7] In order to be protected from unfair dismissal, a person must have completed a period of employment with his or her employer of at least the minimum employment period as per s.382(a) of the Act which relevantly states as follows:

“382 When a person is protected from unfair dismiss

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

….”

[8] The ‘period of employment’ for the purpose of s 382(a) is relevantly defined at s 384 of the Act as follows;

“384 Period of employment

(1) [Meaning of period of employment]

An employee’s period of service with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

………….” (emphasis added)

[9] The minimum employment period is one year for a small business employer and six months for other employers as provided by s.383 of the Act which states 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.”

[10] Section 23 of the Act relevantly defines a small business as follows:

“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.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated; and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”

Consideration

[11] I am satisfied that the Applicant was employed by the Respondent for two periods of employment that were broken by a period of approximately two months. That means therefore that his total service with the Respondent of approximately 20 months was not continuous. The Second Period of Employment, which is relevant to the application before me, was from 12 August 2019 to 11 November 2019, a period of approximately 3 months.

[12] The Respondent employed 21 employees at the time of the Applicant’s dismissal and is therefore not a small business employer for the purpose of determining the minimum employment period. Consequently, the minimum employment period the Applicant must have served in order to meet the requirements of s. 382 of the Act is that of 6 months.

[13] It follows from the above that the Applicant has not served the minimum employment period of 6 months with the Respondent at the time of his alleged dismissal (s. 382(a) of the Act). The Applicant is therefore not a person protected from unfair dismissal under the Act.

[14] Having reached this conclusion it is unnecessary for me to deal with the Respondent’s second jurisdictional objection, that being the application was not made within the required 21-day statutory period.

Conclusion

[15] I am satisfied that the Applicant has not completed the minimum employment period of 6 months with the Respondent at the time of his alleged dismissal (s 382(a) of the Act). I therefore uphold the Respondent’s jurisdictional objection concerning the minimum employment period. The Applicant’s unfair dismissal application is dismissed. An Order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

L. Chiodo on his own behalf.

J. Leos on behalf of the Respondent.

D. Kafillinos on behalf of the Respondent.

Hearing details:

2020
Melbourne
February 7

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