DECISION

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

Mr Lee Sherman
v
NYK Forklift Services
(U2021/1749)

DEPUTY PRESIDENT LAKE

BRISBANE, 14 JULY 2021

Application for an unfair dismissal remedy –Small Business Fair Dismissal Code – minimum employment period not met

[1] On 3 March 2021, Mr Lee Sherman (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) alleging that he had been unfairly dismissed from his employment with NYK Forklift Services (the Respondent). The Applicant seeks compensation rather than reinstatement.

[2] The parties agreed that the Applicant was notified on 1 March 2021 that he was being dismissed and that he lodged his application with the Commission on 3 March 2021, within the 21-day time limit prescribed by the Act. However, the Respondent objected to the application on the basis that the employer was a small business employer and had complied with the Small Business Fair Dismissal Code. The Respondent further claimed that the Applicant did not meet the minimum employment period.

[3] Pursuant to s.390 of the Act, the Commission can only order an unfair dismissal remedy if the Applicant was a person “protected from unfair dismissal”. This requires the person to have completed a period of employment that is at least the minimum period of employment. 1 If the employer is a “small business employer”, that period is one year ending at the time when the person is given notice of dismissal, or immediately before the dismissal, whichever is earlier. 2

[4] Directions were issued in respect of the filing of evidence and submissions by each party and set down for a hearing the jurisdictional objection and merits. The parties’ material took the form of various emails and other documentation. The Respondent also filed witness statements. Both attended the virtual hearing held on 8 June 2021. At the hearing, it became clear that some of the witnesses relevant to the merits of the case may not be available. It was stated that if the jurisdictional matter failed and a decision on the merits required, then a further hearing date may be set if those witnesses were required for cross-examination.

Small business

[5] A small business employer is one with less than 15 employees. 3 Mr Phillip John Singleton gave evidence on the Respondent’s behalf to the effect that they had eight employees. This was not disputed by the Applicant. I am therefore satisfied that the Respondent was a small business employer and that the Small Business Fair Dismissal Code applied.

[6] It was uncontroversial that the minimum employment period was therefore 12 months. 4 What remains in dispute is whether the Applicant had in fact served the requisite period.

Minimum Employment Period

[7] The correct approach to the calculation of the minimum period of employment is to ascertain the actual period of employment between the commencement date of employment and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 4148
Decision Date: 14 JULY 2021

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Mr Lee Sherman, who sought an unfair dismissal remedy against NYK Forklift Services. Mr Sherman had been employed by NYK Forklift Services for a period of 10 months and 3 days when he was dismissed. The company argued that the dismissal was not unfair because Mr Sherman did not satisfy the minimum employment period required under the Small Business Fair Dismissal Code, which is 12 months.

The central legal issue the Commission needed to decide was whether the Small Business Fair Dismissal Code applied to NYK Forklift Services and if Mr Sherman's period of employment met the requisite minimum employment period of 12 months. Additionally, the Commission had to consider whether the dismissal was justified under the circumstances.

The Fair Work Commission found that NYK Forklift Services was indeed a small business as defined by the Fair Work Act, and thus the Small Business Fair Dismissal Code applied. However, the Commission also determined that Mr Sherman had not met the minimum employment period of 12 months, as he had been employed for only 10 months and 3 days. Consequently, the dismissal did not contravene the Code, and Mr Sherman's application for an unfair dismissal remedy was dismissed. The Commission found that the dismissal was justified, as it did not contravene the relevant provisions of the Fair Work Act.

Orders