Mr Nicholas Kay v Cdl Projects Qld Pty Ltd

[2024] FWC 2660

[2024] FWC 2660

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Nicholas Kay
v

Cdl Projects Qld Pty Ltd

(U2024/7945)

COMMISSIONER SCHNEIDER PERTH, 25 SEPTEMBER 2024

Application for an unfair dismissal remedy

1. On 9 July 2024, an application was made by Mr Nicholas Kay (the Applicant) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against Cdl Projects QLD Pty Ltd (the Respondent).

1. In the F3 Employer Response Form, the Respondent raises a jurisdictional objection to the application, namely that the Applicant has not served the minimum employment period as required under section 382(a) of the Act.

Legislation

1. The initial matter to be dealt with in this application is whether the Applicant is a person who is protected from unfair dismissal, having regard to the minimum employment period under the Act. The relevant statutory provisions are sections 382, 383, and 384 of the Act. Those sections, in part, read:

“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

(b) …”

“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 Period of employment

(1)   An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee. …”

Submissions & Evidence

1. The parties agree that the Applicant commenced employment on 31 July 2023 with Respondent.

1. The parties also agree that the Applicant’s employment was terminated on 13 June 2024.

1. The Respondent submits that the Applicant has not met the minimum employment period as required by the Act for a Small Business Employer.

1. The Respondent submits that, at the time of the Applicant’s termination, it employed a total of nine (9) employees. 

1. A statutory declaration by Mr Graeme Croft (Mr Croft), Director of the Respondent, was provided by the Respondent. Mr Croft gave evidence before the Commission, stating that the Respondent is a small business employer for the purpose of the Act.

1. Mr Croft confirms that he is a director and shareholder in additional business. However, Mr Croft states these other businesses are not related entities of the Respondent.

1. The Applicant was directed to file submissions in relation to the minimum employment period jurisdictional objection.

1. The Applicant disputes the accuracy and authenticity of the Respondent’s submissions and evidence; however, the Applicant could did provide evidence which challenges the validity of the Respondent’s assertion.

Consideration

1. I am satisfied that the declaration and testimony of Mr Croft regarding the size of the Respondent is reliable. Mr Croft is clearly an experienced businessperson and there is nothing before the Commission which suggests this individual would not appreciate the seriousness of making a statutory declaration. Aside from the Applicant’s mere assertion that he believes the Respondent is not a small business, there is no evidence as to why the Commission should not accept the evidence of Mr Croft.

1. Having heard from Mr Croft, it is apparent that he is also a director and shareholder of other businesses. However, I accept the evidence of Mr Croft that other business he is involved in are not associated entities of the Respondent.

1. Therefore, in consideration of the evidence before the Commission, I am satisfied that the Respondent is a small business for the purpose of the Act. And, as noted earlier, it is not disputed that the Applicant was employed by the Respondent for a period of under 12 months. Accordingly, I am not satisfied that the minimum employment period has been satisfied.

Conclusion

1. The Act provides that a person is protected from unfair dismissal if, at the time of the dismissal, the person has completed at least a minimum employment period.[1] In the case of employers who are a small business, the minimum employment period is set at twelve months.[2] The twelve-month period is a threshold requirement for making this application under section 394 of the Act and there is no discretion under the Act for this to be varied.

1. Having found that Respondent is a small business employer and the Applicant being employed for less than 12 months, I have no alternative but to dismiss the application. An Order to this effect has been issued.[3]

COMMISSIONER

Appearances:

N Kay, Applicant.

S Kenyon of Signature Care Operations WA Pty Ltd for the respondent.

Hearing details:

2024.

Perth (by video):
September 24.

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

[2] Fair Work Act 2009 (Cth), s 383(b).

[3] [PR779615].

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