Michael Latham v Regis Aged Care T/A Regis Healthcare Limited

[2015] FWC 8949

[2015] FWC 8949

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Latham
v
Regis Aged Care T/A Regis Healthcare Limited
(U2015/8862)

COMMISSIONER RYAN MELBOURNE, 23 DECEMBER 2015

Application for relief from unfair dismissal.

[1] On 18 December 2015 I issued a decision in this matter, [2015] FWC 8802, in which I dismissed the application as the Applicant had not served the minimum employment period.

[2] I now issue reasons for that decision.

[3] The Applicant commenced employment with the Respondent on 12 January 2015. The Applicant contended that he was told on 5 June 2015 that he was to be terminated and that the termination date would be 14 June 2015. The Respondent contended that the actual date of dismissal was 5 June 2015 and that the Applicant had been paid in lieu of notice of termination.

[4] The Respondent is not a small business as it has vastly more than 15 employees. The minimum employment period required to be served by an employee before an employee is entitled to make an unfair dismissal application is six months. The six months minimum employment period, which starts from the commencement date of employment, ends at the earlier of the following times:

(i) the time when the person is given notice of the dismissal:
(ii) immediately before the dismissal.(s.383(a))

[5] In the present matter where the Applicant commenced employment on 12 January 2015 the Applicant will satisfy the minimum employment period if the Applicant is either given notice of termination on or after 12 June 2015 or is dismissed on or after 12 June 2015.

[6] The Applicant concedes that he was told on 5 June 2015 that he was being dismissed. The Applicant contends that the dismissal took effect on 14 June 2015 after the period of notice had expired. The Applicant admits that he was asked to finish work on 5 June 2015 and the Applicant admits that he left work on that day and has never returned to work.

[7] A significant aspect of the Applicant’s case is that since 5 June 2015 the conduct of the Respondent has been such that the Applicant considered that he was still an employee of the Respondent. The Applicant had been paid for a period after the date of dismissal and the Applicant retained access to online training modules which were only to be available to employees.

[8] The Respondent conceded that there had been a number of administrative errors in the handling of the dismissal of the Applicant but contended that the dismissal of the Applicant took effect on 5 June 2015.

[9] For the purpose of s.383 the facts in the present matter, as contended for by the Applicant, establish that the Applicant was given notice of his dismissal on 5 June 2015. Even if the dismissal did not take effect on 5 June 2015, as contended for by the Respondent, it is the giving of notice of dismissal which is critical for the purpose of s.383(a).

[10] For the purpose of s.383(a) the earlier of the times of when the Applicant is given notice of the dismissal or the time immediately before the dismissal of the Applicant will be 5 June 2015.

[11] As the Applicant commenced employment on 12 January 2015, the time between 12 January 2015 and 5 June 2015 is less than six months. The Applicant has not served the minimum employment period required by s.383 of the Act. The application in this matter is therefore dismissed.

COMMISSIONER

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