Mr Jonathan Francis v Concrete Employment Services T/A Mansell Bulk Haulage

[2014] FWC 1330

[2014] FWC 1330

FAIR WORK COMMISSION

DECISION

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

Mr Jonathan Francis
v
Concrete Employment Services T/A Mansell Bulk Haulage
(U2014/4102)

COMMISSIONER SPENCER BRISBANE, 21 FEBRUARY 2014

Application for relief from unfair dismissal.

[1] This decision relates to an application made by Mr Jonathan Francis (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy alleging that the termination of his employment from Concrete Employment Services (the Respondent) was harsh, unjust or unreasonable.

[2] The Form F2 Application for Unfair Dismissal Remedy stated that the Applicant commenced employment on 27 September 2013 and further, that the Applicant was notified of the dismissal on 12 January 2014; a period of some three and a half months.

[3] Section 382 of the Act provides:

“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....”

[4] Section 383 of the Act provides:

“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] It is not in dispute that the Respondent is not a small business employer. There are no issues concerning employment with another employer or a transfer of business.

[6] The matter was before the Commission for Conference today. The Applicant did not dispute that his period of employment was less than the minimum employment period. On that basis I am satisfied that the Applicant was not a person protected from unfair dismissal. A number of other jurisdictional matters were raised at the time of the conference, however, given this preliminary jurisdictional matter, it is unnecessary to consider those further jurisdictional matters.

[7] The Commission does not have jurisdiction. The application filed pursuant to s.394 of the Act must be dismissed.

[8] I Order accordingly.

COMMISSIONER

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