Michael Roberts v JBS Australia Pty Ltd T/A Beef City Plant

[2015] FWC 1882

[2015] FWC 1882

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Roberts
v
JBS Australia Pty Ltd T/A Beef City Plant
(U2014/15862)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 MARCH 2015

Application for relief from unfair dismissal.

[1] Mr Michael Roberts alleged the termination of his employment by Beef City Plant was unfair. In his application he advised that he commenced employment on 29 May 2014 and his employment ended in 28 November 2014.

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

[3] 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 Roberts has served the minimum employment period, no assessment has been made about the merits of his case. The Fair Work Commission has no discretion to waive the requirements of the Act. Parliament has said that to be protected from unfair dismissal an employee must have served for six months (or one year if employed by a small business).

[5] On 12 December 2014, Mr Roberts was sent a letter advising him of the requirement to have been employed for the minimum period of employment and asked to advise if he wished to continue with his application.

[6] On 14 January 2015, a file note records that Mr Roberts advised by telephone that he wished to discontinue his application and on the same day a letter was sent to him confirming this and requesting he complete a notice of discontinuance. On 20 January 2015, Mr Roberts advised that he did not wish to discontinue his application. On 24 February 2015, Mr Roberts filed a form F1 seeking to have his unfair dismissal claim heard and determined.

[7] On 26 February 2015, Mr Roberts was asked to confirm whether the information provided in his original application about his starting date and termination date was correct. Contact was made with Mr Robert’s employer who confirmed that the dates provided by Mr Roberts were correct. On 11 March 2015 Mr Roberts advised he was seeking legal advice. On 12 March 2015, further correspondence was sent to Mr Roberts advising him that if he did not dispute the facts his application would be determined on the information currently before the Commission. Mr Roberts was given until 18 March 2015 to respond. No response was received from Mr Roberts.

[8] As there is no factual dispute about Mr Roberts’s period of employment it is not necessary to have a hearing/conference.

[9] 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".

[10] As Mr Roberts commenced employment on 29 May 2014, the six months ended at midnight on 28 November 2014. As Mr Roberts was not employed at this time he had not served the minimum employment period.

[11] As a consequence at the time of his dismissal, Mr Roberts 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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