DECISION

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

Mr Malcolm Watson
v
Oliver-Ramsay Group Pty Ltd
(U2014/14353)

VICE PRESIDENT WATSON

MELBOURNE, 12 JANUARY 2015

Application for relief from unfair dismissal - Threshold jurisdictional issue to be determined - Whether applicant has satisfied minimum employment period - Fair Work Act - ss. 394, 382, 383, 384, 309, 310, 311 and 22.

Introduction

[1] This decision concerns an application by Mr Malcolm Watson for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). The application arises from the termination of Mr Watson’s employment with Oliver-Ramsay Group Pty Ltd (Oliver-Ramsay Group) at a meeting on 25 September 2014 and a letter of the same date. Oliver-Ramsay Group has objected to the application on the basis that Mr Watson’s continuous service at the time of the termination of his employment was less than the minimum period prescribed by the Act.

[2] As there are no contested facts to determine the parties have agreed that the matter could be dealt with on the papers and were given an opportunity to file written submissions in relation to the jurisdictional issue.

[3] Throughout these proceedings, Mr Watson has represented himself and Oliver-Ramsay Group has been represented by the Australian Security Industry Association Limited.

Background

[4] Oliver-Ramsay Group was successful in tendering for the provision of security services at the Federation University in Ballarat with effect from 1 July 2014. Prior to that date Mr Watson was employed by the previous contractor as a security guard at the University.

[5] By letter dated 25 June 2014 Mr Watson was offered employment with Oliver-Ramsay Group as a full time Security Officer to commence work on 30 June 2014. His first day of rostered work was 1 July 2014.

[6] In a letter dated 25 September 2014 Oliver-Ramsay Group advised Mr Watson that it had decided not to continue his employment beyond the probationary period. On termination he was paid a week’s pay in lieu of notice and outstanding entitlements.

[7] These dates are not disputed. However Mr Watson also contends that he had worked at the University doing the same job since September 2006.

The Legislative Test

[8] In accordance with s.382 of the Act a person is protected from unfair dismissal if the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period.

[9] The terms “minimum employment period” and “period of employment” are defined in ss. 383 and 384 of the Act. These sections provide:

“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.

384…

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: [2015] FWC 221
Decision Date: 12 JANUARY 2015

CaseChat Overview and Summary

In the Fair Work Commission, Mr. Malcolm Watson, an employee, filed an application against his former employer, Oliver-Ramsay Group Pty Ltd, for relief from unfair dismissal. The dispute arose after Mr. Watson was dismissed from his position, and he sought relief under the Fair Work Act. The court had to determine whether Mr. Watson was eligible for relief from unfair dismissal, focusing on the threshold issue of whether he had satisfied the minimum employment period required by the Act.

The primary legal issue for the court to decide was whether Mr. Watson had fulfilled the minimum employment period stipulated in the Fair Work Act. The court needed to examine the provisions of sections 394, 382, 383, 384, 309, 310, 311, and 22 to ascertain the eligibility criteria for relief from unfair dismissal. The court also had to consider whether the dismissal was genuine and not due to any discriminatory or unjust reasons.

In examining the facts and the provisions of the Act, the court determined that Mr. Watson had not satisfied the minimum employment period required for relief from unfair dismissal. Consequently, the court found that the application for relief was not within its jurisdiction. The court's decision was based on the clear stipulations in the Fair Work Act regarding the eligibility criteria for relief from unfair dismissal. The court concluded that Mr. Watson's application did not meet the necessary threshold, and therefore, the application was dismissed.

Orders