Mr Ulas Demiroz v Ashop Commerce Pty Ltd
[2011] FWA 6722
•4 OCTOBER 2011
[2011] FWA 6722 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Ulas Demiroz
v
Ashop Commerce Pty Ltd
(U2011/9172)
COMMISSIONER LEE | MELBOURNE, 4 OCTOBER 2011 |
Jurisdiction; minimum period of employment; application dismissed.
[1] This matter involves an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) by Mr. Ulas Demiroz (the Applicant). The respondent employer is Ashop Commerce Pty Ltd (the Respondent). The application was lodged on 24 June 2011.
[2] Section 396 of the Fair Work Act 2009 (the Act) provides that Fair Work Australia must decide on various initial matters before considering the merits of an application. One of the matters Fair Work Australia must consider initially is whether the person was protected from unfair dismissal (section 396(b)).
[3] Section 382 of the Act sets out when a person is protected from unfair dismissal. Section 382 states;
“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) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
[4] Section 383 of the Act defines “minimum employment period”. Section 383 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.”
[5] In the Form F2 Application for Unfair Dismissal Remedy, the Applicant provided the following in answer to question 1 - “what was the period of your employment”;
“Date employed: 06 January 2011
Date notified of dismissal: 02 May 2011
Date Dismissal took effect: 02 May 2011”
[6] In the Form F3 Employers Response to Application for Unfair Dismissal Remedy, the Respondent at question 4 - “Do you have any jurisdictional or other objection(s) to the application” provided;
“The applicant had not worked 6 months with Ashop Commerce.”
[7] Based on the material filed by the Applicant in the Form F2 and the Respondent in the Form F3, it appeared that the applicant did not meet the requirements of the minimum employment period as set out in the Act. This jurisdictional issue was raised with the Applicant in correspondence from Fair Work Australia on 11 July 2011. In an email response, the Applicant raised a number of other issues not relevant here and concluded, “I kindly request you evaluate my situation again”.
[8] Section 397 of the Act stipulates the following;
“397 Matters involving contested facts
FWA must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.”
[9] Before deciding whether the conduct a conference or hearing in this matter, I wrote to both the Applicant and Respondent, requesting that they advise me in writing as to whether the period of employment or engagement of the Applicant was for a period of greater than 6 months.
[10] I received responses from the Applicant and Respondent on 27 September 2011. Both responses confirmed that the Applicant had not been employed for a period of greater than 6 months.
[11] Based on all of the information provided to Fair Work Australia it is clear that the minimum employment period requirement of the Act has not been met. Fair Work Australia has no jurisdiction to determine the application given the operation of s390(1)(a). As such it is not necessary for me to consider matters which go to the merits of the application.
[12] The application is dismissed. An order to this effect will be issued in conjunction with this decision. 1
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