Michael Murphy v GKR Transport

[2014] FWC 7431

[2014] FWC 7431

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Murphy
v
GKR Transport
(U2014/3716)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 OCTOBER 2014

Application for relief from unfair dismissal.

[1] Mr Michael Murphy alleged the termination of his employment by Fleming Fields Pty Ltd trading as GKR Transport was unfair. In his application Mr Murphy advised that he commenced employment on 21 November 2012 and his employment ended in May 2013 or 23 May 2013. Mr Murphy stated that the dismissal took effect on 15 May 2013. Mr Murphy lodged his application on 9 January 2014 which was more than 21 days after the dismissal took effect.

[2] In the employer response GKR Transport advised that Mr Murphy’s employment commenced on 26 November 2012 and he was notified of his dismissal on 20 May 2013 and that the dismissal took effect on 15 May 2013. Further in the document GKR Transport stated that the period of employment was 26 November 2012 to 15 May 2013.

[3] As an employee is required to have served six months employment to be protected from unfair dismissal. 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.

[4] In determining whether Mr Murphy has served the minimum employment period, no assessment has been made about the merits of Mr Murphy’s case. The Commission has no discretion to waive the requirements of the Act. While Mr Murphy may be aggrieved, the Parliament has set clear rules about who is protected from unfair dismissal. In this case, the Parliament has said that to be protected from unfair dismissal an employee must have been employed for six months. The Parliament has equally made it clear, that a period of notice whether paid in lieu or worked, does not count for the purpose of calculating the six months.

[5] Mr Murphy does not dispute that his employment ended on 15 May 2013 and he was paid in lieu of notice.

[6] On 18 March 2014, Mr Murphy was sent correspondence advising him that he may not have served the minimum employment period.

[7] On 19 March 2014, Mr Murphy wrote to the Commission complaining that Centrelink counted the notice period when assessing his entitlement to benefits. He also complained that he was only a few days short of the required period and that this was unfair.

[8] On 18 March 2014, a further letter was sent to Mr Murphy which again advised that he may not have served the minimum employment period and asked him if he wished to continue with his application or discontinue his application.

[9] On 25 March 2014, Mr Murphy responded but that email did not address the matters raised in the Commission’s correspondence. The file note taken by a Commission staff member on this date states that Mr Murphy confirmed that the dates were correct.

[10] On 26 March 2014, the file was closed but there was no indication on the file that Mr Murphy discontinued his application by telephone.

[11] On 12 September 2014, Mr Murphy again wrote to the Commission stating that the Australian Taxation Office considered that he had been employed from 28 November 2012 to 23 May 2013 which is over six months.

[12] I reviewed the file and on 22 September 2014 caused an email to be sent to Mr Murphy seeking clarification about the dates of his employment. As no response was received, a further email was sent to Mr Murphy on 29 September 2014 advising him that if he did not reply by close of business on 1 October 2014 a decision would be made on the information on the file.

[13] On 2 October 2014, I wrote to GKR Transport seeking documentary evidence to confirm Mr Murphy’s period of employment. That information was provided to Mr Murphy.

[14] On 17 October 2014, an email was sent to Mr Murphy seeking confirmation of his advice that he was employed from 26 November 2012 until 23 May 2013.

[15] On 18 October 2014, Mr Murphy responded. He did not in that email contest the dates. He complained that the notice period did not count.

[16] GKR Transport submitted that Mr Murphy was terminated on 20 May 2013 and Mr Murphy signed a document acknowledging that was the termination date. It is not disputed that Mr Murphy was paid in lieu of notice, but even if he were not, the minimum employment period is calculated from the earlier date of the notice of termination or the date of dismissal. GKR Transport said that Mr Murphy commenced employment on 26 November 2012 and an employment declaration signed by Mr Murphy supports this.

[17] On the evidence of Mr Murphy, if he commenced work on 28 November 2012 and ceased work on 23 May 2013, he had not served the minimum employment period.

[18] On the evidence of GKR Transport, if Mr Murphy commenced employment on 26 November 2012 and ceased employment on 20 May 2013, he had not served the minimum employment period.

[19] On the evidence before the Commission, most favourable to Mr Murphy if he commenced employment on 26 November 2012 and his employment was terminated on 23 May 2013, he had not served the minimum employment period.

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

DEPUTY PRESIDENT

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