Mr James Alexander v Alice & Alexander Pty Ltd

[2025] FWC 1287

[2025] FWC 1287

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr James Alexander
v

Alice & Alexander Pty Ltd

(U2025/3509)

COMMISSIONER PLATT ADELAIDE, 9 MAY 2025

Application for an unfair dismissal remedy – jurisdictional objection – small business – minimum employment period

1. On 23 March 2025, Mr James Alexander (the Applicant) lodged an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Alice & Alexander Pty Ltd (the Respondent) which occurred on 13 March 2025.

1. The matter was allocated to my Chambers on 24 April 2025.

1. On 29 April 2025, I conducted a Directions Conference to discuss the matter. Despite the Respondent’s Form F3, it became apparent that there were two jurisdictional objections, the first being whether or not the Applicant met the minimum employment period (MEP) and secondly, whether or not the dismissal was a case of genuine redundancy. This decision deals with the MEP ground.

1. On 29 April 2025, my Chambers issued a Notice of Listing to the parties advising a Jurisdictional Hearing was listed on 9 May 2025 and provided Directions for the filing of material.

1. The Respondent filed a witness statement from Mr Dean Devere and supporting material. The Applicant did not file any information other than his Form F2 application with supporting documents.

1. The material filed was collated into a Digital Court Book (DCB) and sent to the parties on 9 May 2025.

1. The Hearing was conducted via telephone at 2:00pm (SA) Friday, 9 May 2025. The Applicant represented himself, the Respondent was represented by Mr Dean Devere (General Manager). Both parties were sworn in and gave evidence. The DCB was received into evidence.

LEGISLATION

1. The relevant provisions of the Act are as follows:

“382      When a person is protected from unfair dismissal

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

(b)       one or more of the following apply:

(i)           a modern award covers the person;

(ii)          an enterprise agreement applies to the person in relation to the employment;

(iii)         the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

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.”

EVIDENCE

1. The relevant evidence is summarised below:

·  The Applicant was employed on 22 April 2024.

·  On 13 March 2025, the Applicant was dismissed with effect from 12 March 2025. One weeks notice was paid in lieu.

·  The Respondent gave evidence that he employed 7 people across his company at the time of the Applicant’s dismissal and provided supporting payslips. This evidence was not disputed by the Applicant.

CONSIDERATION

1. In the circumstances (where the Applicant had 10 months and 18 days employment), for the Respondent’s jurisdictional objection that the Applicant did not meet the minimum employment period of 12 months, the following needs to be established:

1)That the Respondent is a small business employer with less than 15 employees at the time of the Applicant’s dismissal within the meaning of s.23 of the Act.

2)The Applicant was employed for a period of less than 12 months prior to his dismissal.

1. From the information provided, I find that the Respondent had 7 employees at the time of the Applicant’s dismissal.

1. I find that the Applicant was employed by the Respondent for a period 10 months and 18 days.

1. I find that the Respondent was a small business as defined in s.23 of the Act at the time of the Applicant’s dismissal, that the Applicant had not completed the MEP as provided by s.383(b) of Act and accordingly, that the Applicant is not protected from unfair dismissal by operation of s.382(a) of the Act.

CONCLUSION

1. The Applicant has not met the minimum employment period and is not protected from unfair dismissal. The application must be dismissed and I so Order.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR787154>