Mirko Nikolic v MCHP Architects Pty Ltd

[2017] FWC 4179

[2017] FWC 4179

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mirko Nikolic
v
MCHP Architects Pty Ltd
(U2017/7514)

DEPUTY PRESIDENT DEAN SYDNEY, 16 AUGUST 2017

Application for an unfair dismissal remedy.

[1] On 12 July 2017 Mr Mirko Nikolic made an application to the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his alleged unfair dismissal by MCHP Architects Pty Ltd(MCHP Architects).

[2] On 20 July 2017, MCHP Architects filed a Form F3 (Employer Response to Unfair Dismissal Application) objecting to the application on the grounds that it is a small business employer and that the Applicant had not completed a minimum employment period.

[3] Section 382(a) of the Act provides:

“A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and ...”

[4] The definition of a minimum employment period is defined in s.383 of the Act:

“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.”

[5] Section 23 sets out the meaning of ‘small business employer’. It states:

“(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated; and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”

[6] Mr Nikolic advised that he commenced employment with MCHP Architects on 24 October 2016 and that his dismissal took effect on 21 June 2017.

[7] On 26 July 2017, correspondence was sent to Mr Nikolic indicating that based on the information contained in his application and the employers response, it appeared he had not served the minimum employment period. The correspondence required Mr Nikolic to file in the Fair Work Commission a statement to support his claim of having served the minimum employment period within 14 days. Mr Nikolic was advised that in the absence of any material being received, his application may be dismissed.

[8] Mr Nikolic provided a statement on 1 August 2017. His statement did not assert that he had been employed for the minimum employment period. I responded to that correspondence on 2 August 2017 as follows:

“For a person to be able to lodge an application for an unfair dismissal remedy pursuant to the Fair Work Act 2009 (the Act) that person must be employed for the minimum employment period prescribed by the Act. For a small business employer that period is twelve months.

Unfortunately I have no discretion to extend jurisdiction to any employee who was employed for less than twelve months.

The dates on your application indicate that you started working for the respondent on 24 October 2016 and finished working there on 21 June 2017. Thus, a period approximately 8 months.

If you wish to withdraw your application please file a Notice of Discontinuance within 7 days (copy attached) or otherwise if you wish to proceed with your application please provide further submissions as to why you believe there is jurisdiction for the Commission to hear your claim.

If I do not hear from you within 7 days, your application will be dismissed based on the material already provided to the Commission.”

[9] On 2 August 2017 Mr Nikolic was given a further seven days to provide an explanation as to why the Commission may have jurisdiction to hear his application. No response was received by the stipulated date.

[10] Mr Nikolic was, on the facts of his own application, employed for less than the minimum employment period.

[11] The Commission does not have discretion to hear an unfair dismissal application made by an employee employed for less than the minimum employment period.

[12] I find that the Applicant had not completed the minimum employment period and is not a person protected from unfair dismissal. Accordingly, I uphold the Respondent’s jurisdictional objection and dismiss the application. An order to that effect will be issued separately.

DEPUTY PRESIDENT

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