DECISION

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

Ms Debra Ferguson
v
The Westhaven Association Ltd T/A Westhaven Association
(U2017/10670)

DEPUTY PRESIDENT DEAN

SYDNEY, 22 NOVEMBER 2017

Application for an unfair dismissal remedy – minimum employment period not met.

[1] This decision concerns an application by Ms Debra Ferguson made pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of the termination of her employment with The Westhaven Association Ltd T/A Westhaven Association (the respondent).

[2] Ms Ferguson lodged her application on 3 October 2017. In that application she stated that she began working for the respondent on 2 August 2017 and was notified of her dismissal on 14 September 2017, with the dismissal taking effect the same day.

[3] Section 382(a) of the Act states that a person is protected from unfair dismissal if at the time of dismissal that person has completed a period of employment with his or her employer of at least the minimum employment period. Section 383 explicates the meaning of the minimum employment period as follows:

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.

[4] It is not currently necessary for me to determine if the respondent is a small business employer. The reason for this is that in Ms Ferguson’s own application she states that her period of employment with the respondent was approximately six weeks, being from 2 August 2017 to 14 September 2017. Even if the respondent were not a small business employer, thus making the minimum employment period only six months, Ms Ferguson, on her version of the facts, could not be said to have completed the minimum employment period required for her to be a person protected from unfair dismissal.

[5] I find that Ms Ferguson was not employed for the minimum employment period required by the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Ms Debra Ferguson, who sought relief for unfair dismissal against The Westhaven Association Ltd, trading as Westhaven Association. The crux of the dispute was whether Ms Ferguson's dismissal was unfair and warranted a remedy under the Fair Work Act 2009. Ms Ferguson alleged that her employment was terminated without just cause or reason, while the Association contended that the dismissal was fair due to her employment period not meeting the requisite minimum to qualify for unfair dismissal protections.

The primary legal issue for the Commission to decide was whether the minimum employment period requirement had been fulfilled to entitle Ms Ferguson to protection against unfair dismissal. Under section 384 of the Fair Work Act, an employee must have been continuously employed by the same employer for a period of at least six months to be eligible for unfair dismissal remedies. The Commission needed to ascertain whether Ms Ferguson had reached this threshold at the time of her dismissal.

The Commission examined the evidence presented regarding the duration of Ms Ferguson's employment. It was determined that she had been employed for a period less than six months, thus falling outside the scope of protection afforded by the Act. Consequently, the dismissal did not qualify as unfair, and the application for remedy was dismissed on the basis that the statutory criteria were not met. The Commission's decision was grounded in the legislative stipulations regarding the minimum employment period necessary to invoke unfair dismissal protections.

Ms Debra Ferguson v The Westhaven Association Ltd T/A Westhaven Association

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established