Mr Lee Sherman v NYK Forklift Services

[2021] FWC 4148

[2021] FWC 4148

FAIR WORK COMMISSION

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 the time when the person is given notice or immediately before dismissal. 5

[8] In Wilkinson v Skippers Aviation Pty Ltd, the Full Bench stated the interpretation of the meaning of “month” is a calendar month. That is a period commencing at the beginning of a day of a month of the year and ending immediately before the beginning of the corresponding day of the month following. 6 This interpretation was applied in the decision of Prigg v Manheim.7I see no reason why the Full Bench’s reasoning should not apply to a minimum period of employment as stipulated at s.383 of the Act. Section 22(1)(b) and (g) of the Acts Interpretation Act 1901 (Cth), as was in force on the day on which the Act commenced, being 26 June 2009, applies to the calculation of the minimum period of employment as it applies to any other similar such statutory time period, provided no contrary intention is demonstrated.

[9] It is uncontentious that the Applicant’s period of employment with the Respondent began on 2 March 2020. On the Full Bench’s reasoning, the minimum period of employment must be completed “immediately before the beginning of” 2 March 2021, which is immediately before the beginning of the corresponding day of the twelfth month following the date on which the Applicant’s employment commenced.

[10] The Respondent maintains that the Applicant was dismissed on 1 March 2021 at 1.45pm, effective immediately. The Respondent’s evidence was that the Applicant was home at 2:29pm and that his payslip reflects that he did not work a full 7.6-hour workday, but rather only 6 hours of work on 1 March 2021. On that basis, the Respondent contends the Applicant cannot make a claim for unfair dismissal as he had fallen short of the 12-month employment period. The Respondent further submits that the Applicant took the sick leave and time off without pay that should be considered. Without specific evidence of this, I cannot take it into account in the calculations.

[11] The Respondent provided evidence that the Applicant’s employment had ceased as of 1 March 2021 as is recorded on the final payslip for the period 1 March 2021 to 1 March 2021, the PAYG payment summary for the period 1 July 2020 to 1 March 2021 and Centrelink Employment Separation Certificate indicating that employment had ceased on 1 March 2021.

[12] The Applicant contends that he completed a full day’s work on 1 March 2021. He accepted that he went home at least half an hour early but maintained that was irrelevant because he had been sent home (as opposed to having elected to leave) so his employment was covered. Further, he states that his employment period extended until 8 March 2021, because he was paid one week in lieu of notice. On that basis, he submits that he met the minimum period of employment and therefore is entitled to make the unfair dismissal application.

[13] I am satisfied that the difference between the date the Applicant commenced employment with the Respondent (2 March 2020) and the date he was notified of his dismissal (1 March 2021) is 364 days and approximately 6 hours. Nothing turns on whether the Applicant was paid one week’s salary in lieu of notice, because it was just that, payment in lieu of notice. Had the Applicant worked out the notice period he would have met the minimum statutory requirement.

[14] While it seems unjust to preclude someone the opportunity to bring an unfair dismissal application because their employment was terminated mere hours before they served 12 months, I am afraid that I am bound by the Full Bench’s reasoning in the authorities mentioned above and the strict timelines imposed by the Act.

[15] Consequently, I am required to conclude that the Applicant had not completed the minimum period of employment. This is because the Applicant, until midnight on 1 March 2021, was still within, or was still to complete the minimum period of employment, which must be taken to be the point in time which is “immediately before the beginning of” 2 March 2021.

[16] Accordingly, I find that the jurisdictional objection is upheld. Accordingly, I order that the Application be dismissed.

DEPUTY PRESIDENT

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 1   Fair Work Act 2009 (Cth) s.382(a).

 2   Fair Work Act 2009 (Cth) s.383.

 3   Fair Work Act 2009 (Cth) s.23.

 4   Fair Work Act 2009 (Cth) s.383.

 5   Wales v 3 Point Motors Pty Ltd T/A 3 Point Motors[2012] FWA 3817.

 6   Wilkinson v Skippers Aviation Pty Ltd, PR903635 (AIRCFB, McIntyre VP, Cartwright SDP, Harrison C, 30 April 2001) at [31].

 7   Prigge v Manheim Fowles Pty Ltd[2010] FWA 28.