Michael Lees v Ribshire Pty Ltd T/A Goodline

[2015] FWC 1892

[2015] FWC 1892

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Lees
v
Ribshire Pty Ltd T/A Goodline
(U2014/15049)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 MARCH 2015

Application for relief from unfair dismissal.

[1] Mr Michael Lees alleged the termination of his employment by Ribshire Pty Ltd was unfair. In his application, Mr Lees advised that he commenced employment in March 2014 and his employment ended on 22 October 2014.

[2] In the employer response form, Ribshire stated that Mr Lees commenced employment on 28 April 2014.

[3] On 8 December 2014, a letter was sent by the Fair Work Commission confirming that the matter had been settled at conciliation. On 24 December 2014, Mr Lees' legal representative advised that Ribshire had changed its mind about the settlement. A further conciliation was requested. On 7 January 2015, Ribshire advised that the terms of settlement proposed by Mr Lees included matters that did not form part of the terms of the settlement.

[4] On 16 February 2015, I caused to be sent to the parties an email seeking clarification of Mr Lees' commencement date. On 18 February 2015, Ribshire forwarded documents which showed that Mr Lees' commencement date was 28 April 2014. Mr Lees' legal representative advised that Mr Lees did not have a copy of his contract and could not advise what his starting date was. On 27 February 2015, Mr Lees was asked to provide a witness statement to support his claim that he commenced employment in March 2014. On 4 March 2015, his legal representatives ceased to act for Mr Lees. Mr Lees was then advised that he was still required to file evidence by 6 March 2015. Mr Lees did not file any material and on 11 March 2015 he was advised that if he did not respond I would determine the matter on the basis of the material currently before the Commission. On 13 March 2015, his union advised that it no longer acted for Mr Lees. Telephone messages were left for Mr Lees on 17 and 18 March 2015 and on 18 March 2015 Mr Lees advised that his union had put March 2014 on his application but he started work on 28 April 2014.

[5] An employee is required to have served six months employment (twelve months if employed by a small business) to be protected from unfair dismissal.

[6] Section 383 of the Fair Work Act 2009 provides 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.

[7] In determining whether Mr Lees has served the minimum employment period, no assessment has been made about the merits of his case. The Commission has no discretion to waive the requirements of the Act.

[8] Section 22 of the Acts Interpretation Act 1901 as it existed at 25 June 2009 1 provides as follows:

In any Act, unless the contrary intention appears:
...
(b) `Month' shall mean calendar month;
...
(g) `Calendar month' means a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month".

[9] Mr Lees commenced employment on 28 April 2014 so the six month period ended at midnight on 27 October 2014. As Mr Lees was no longer employed at that time he was not employed for the minimum period of employment.

[10] As a consequence at the time of his dismissal Mr Lees was not protected from unfair dismissal and his application must be dismissed.

DEPUTY PRESIDENT

 1 See s.40A of the Fair Work Act 2009

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