Mr Andrew Zveglic v Djs Qualicoaters Pty Ltd

[2017] FWC 6520

[2017] FWC 6520

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Andrew Zveglic
v
DJS Qualicoaters Pty Ltd
(U2017/11289)

DEPUTY PRESIDENT DEAN SYDNEY, 7 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] This decision concerns an application by Mr Andrew Zveglic made pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of the termination of his employment with DJS Qualicoaters Pty Ltd (the Respondent).

[2] Mr Zveglic lodged his application on 23 October 2017. In that application he stated that he began working for the Respondent on 5 April 2017 and was notified of his dismissal on 4 October 2017, with the dismissal taking effect the same day.

[3] The Respondent raised a jurisdictional objection to Mr Zveglic’s application submitting that Mr Zveglic had not met the minimum employment period. The Respondent stated that Mr Zveglic commenced employment on 6 April 2017 with the dismissal taking effect on 4 October 2017, a period of less than six months.

[4] Section 382(a) of the Act states that a person is protected from unfair dismissal if at the time of dismissal that person has completed a period of employment with his or her employer of at least the minimum employment period.

[5] Section 383 explicates the meaning of the minimum employment period 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.

[6] On 17 November 2017, the parties were directed to file any documentary evidence to support what they say were the correct dates Mr Zveglic commenced and ceased working for the Respondent.

[7] In response, on 17 November 2017, Mr Zveglic filed a copy of his first payslip.

[8] On 21 November 2017 and 23 November 2017, the Respondent filed a number of documents it wished to rely upon, including copies of Mr Zveglic’s payment summaries, first and final payslips, ‘clockings’ details and a Worker Induction Form.

[9] The documents filed indicated that Mr Zveglic commenced employment with the Respondent on 6 April 2017 and ceased employment on 4 October 2017.

[10] The application was listed for conference by telephone on 6 December 2017 to discuss Mr Zveglic’s dates of employment. At the conference Mrs Tracy Zveglic, Mr Zveglic’s mother, appeared on his behalf and Mr Roger Farrar appeared on behalf of the Respondent.

[11] During the conference, Mrs Zveglic agreed that Mr Zveglic commenced employment with the Respondent on 6 April 2017 and that his dismissal took effect on 4 October 2017.

Conclusion

[12] Based on the evidence and submissions made in this matter, I am satisfied that Mr Zveglic commenced employment with the Respondent on 6 April 2017 and that his dismissal took effect on 4 October 2017. As the period of employment was less than six months, it is not necessary for me to determine if the Respondent is a small business employer.

[13] I find that Mr Zveglic 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.

[14] An order to that effect will be issued separately.

DEPUTY PRESIDENT

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