Millicent Verduyn v JSC Montessori Pre-Schools T/A Rosemount House Montessori

[2016] FWC 1969

[2016] FWC 1969

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Millicent Verduyn
v
JSC Montessori Pre-Schools T/A Rosemount House Montessori
(U2016/53)

COMMISSIONER PLATT ADELAIDE, 30 MARCH 2016

Application for relief from unfair dismissal – jurisdiction – minimum employment period not completed.

[1] Ms Verduyn has lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth)(the Act) in relation to the termination of her employment with the JSC Montessori Pre-Schools T/A Rosemount House Montessori (Rosemount).

[2] Rosemount asserts that Ms Verduyn has not completed the minimum employment period required by s.382(a) of the Act.

[3] Rosemount and Ms Verduyn agree that the employment commenced on 6 July 2015, and ceased on 18 December 2015.

[4] On 22 February 2016, Ms Verduyn and Ms Langford (on behalf of Rosemount) participated in a Directions Hearing. Directions were issued requiring Rosemount to file an outline of the basis of the jurisdictional objection and any supporting documents by 26 February 2016 and for Ms Verduyn to respond by 11 March 2016.

[5] On 23 February 2016, the Respondent provided their material which contended that:

• Ms Verduyn was sent an offer of employment on 15 December 2014;

• the commencement of Ms Verduyn’s employment was subject to a number of regulatory preconditions relating to the opening of a new childcare centre;

• the offer of employment was accepted by Ms Verduyn on 16 December 2014;

• on 21 May 2015, Rosemount advised Ms Verduyn by letter that the that her employment would commence on 6 July 2016;

• Ms Verduyn accepted the amended offer on 6 June 2015. That contract provided for a 3 month probationary period;

• on 14 December 2015, Rosemount dismissed Ms Verduyn with effect from 18 December 2015.

[6] Ms Verduyn failed to lodge any submission by 11 March 2016.

[7] On 26 March 2016, my Associate emailed Ms Verduyn and advised her that if she wished to make a submission it must be provided to the Commission by close of business 29 March 2016.

[8] No submission was received from Ms Verduyn.

[9] In her application, Ms Verduyn asserts that she was subject to a 3 month probationary period which is confirmed by a review of the contract of employment.

[10] There is no factual dispute in this matter and a hearing is not necessary. The matter can be determined based on the papers.

[11] Ms Verduyn’s application can only be made by a person who is protected from unfair dismissal. In this case the question is whether Ms Verduyn has completed the minimum employment period.

[12] The concept of a minimum employment period is addressed in the following extract from ss.383 and 384:

“SECTION 383 MEANING OF MINIMUM EMPLOYMENT PERIOD

383 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.

SECTION 384 PERIOD OF EMPLOYMENT

384(1) An employee’s period of employment 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.

[13] Rosemount employs more than 15 employees and thus the applicable minimum employment period is 6 months. The inclusion of a lesser probationary period in the contract of employment does alter this requirement.

[14] I find that Ms Verduyn had not completed the minimum employment period and was not a person protected from unfair dismissal with respect to her employment at Rosemount and is therefore not able to make an application pursuant to s.394 of the Act. The application must be dismissed accordingly An Order (PR578487) to this effect will be issued.

COMMISSIONER

Appearances (by telephone):

M Verduyn on her own behalf.

B Langford for the respondent.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR578482>