Mr Kym Hamilton v Image Car Wash T/A IMO Carwash

[2016] FWC 2282

[2016] FWC 2282

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mr Kym Hamilton
v
Image Car Wash T/A IMO Carwash
(U2016/4946)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 14 APRIL 2016

Application for relief from unfair dismissal – small business employer - minimum period of employment satisfied.

[1] The respondent lodged an Employer Response to Mr Hamilton’s application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), in which it designated the legal name of the respondent as Image Car Wash Pty Ltd. In that Employer Response the respondent notified a jurisdictional objection to the application on the basis that Mr Hamilton had not completed the minimum employment period required by the Act.

[2] The Act designates 12 months as the period for which an employee must be employed by a small business if that employee is to be entitled to lodge an application for an unfair dismissal remedy. The relevant section of the Act is set out below:

“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.”

[3] The applicant appeared with a friend and advocate, Ms Hallahan. Mr Warburton represented the respondent.

[4] Mr Hamilton was employed by the respondent from 9 February 2015 until his termination of employment on 8 February 2016. Mr Warburton concentrated his submissions on the fact that Mr Hamilton was terminated before he was allowed to commence work on 8 February 2016.

[5] Mr Hamilton attended work on 8 February 2016 ready to commence his duties. His commencement time was 8 am. His evidence was that he frequently arrived at work early and always commenced work when he arrived.

“Yes, I was always half an hour early.” 1

[6] Mr Warburton’s evidence was that:

“The applicant commenced employment on 9 February 2015; his last day at work was 7 February 2016 and he was dismissed at 7.30 on 8 August 2016.” 2

[7] I was satisfied that the respondent is a small business as defined by the Act.

[8] The Act requires an examination and determination of the period of employment. Mr Warburton concentrated his submissions on the fact that Mr Hamilton was terminated before he was allowed to commence work on 8 February 2016. However, the time and date at which employment ends is the date when the employee is given notice of termination of employment. Mr Hamilton was given notice of termination of his employment on 8 February 2016.

[9] I was satisfied and found that Mr Hamilton was employed for the minimum employment period required by the Act, in this case for 12 months. In this case, it being a leap year, he was employed for 366 days.

[10] It was for these reasons that I issued my Order dated 5 April 2016.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms C. Hallahan on behalf of the applicant.

Mr D.Warburton on behalf of the respondent.

Hearing details:

Brisbane.

2016,

5 April.

 1   PN68

 2   PN47

Printed by authority of the Commonwealth Government Printer

<Price code C, PR578956>