Mr Jonathan Wagner v Gate Gourmet trading as Inflight Logistic Services

[2010] FWA 8671

[2010] FWA 8671

FAIR WORK AUSTRALIA

DECISION

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

Mr Jonathan Wagner
v
Gate Gourmet trading as Inflight Logistic Services
(U2010/12003)

COMMISSIONER SMITH MELBOURNE, 15 NOVEMBER 2010

Jurisdiction—minimum employment period.

[1] This matter was listed for Jurisdiction Hearing on 29 October 2010. Further to the decision issued in transcript during proceedings the following are my reasons.

[2] Mr J Wagner has sought relief in relation to his termination of employment from Gate Gourmet Services Pty Ltd (Gate Gourmet). Gate Gourmet objects to the matter proceeding on the basis that jurisdiction does not exist for Mr Wagner to make the application.

[3] The parties were notified on 23 September 2010 that the matter would be heard on Friday, 29 October 2010. Directions were issued for documents to be filed no later than 21 October 2010.

[4] When the matter came on for hearing the applicant in this matter, Mr Wagner, did not appear.

[5] Gate Gourmet submitted that Mr Wagner commenced employment on 19 April 2010 and was subsequently dismissed on 25 August 2010. Accordingly, it was submitted, Mr Wagner had not completed a minimum period of employment.

[6] Section 382(a) of the Workplace Relations Act 2009 (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; and ...”

[7] 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.”

[8] Given that there was no appearance by Mr Wagner I accept the submission of Gate Gourmet and find that Mr Wagner is excluded from the jurisdiction on the basis that he has not served the relevant minimum employment period.

[9] Gate Gourmet then made an application for costs which will be separately considered.

COMMISSIONER

Appearances:

I Faulks on behalf of Gate Gourmet trading as Inflight Logistic Services.

Hearing details:

2010.

Melbourne:

October, 29.

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