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

[2017] FWC 6103

[2017] FWC 6103

FAIR WORK COMMISSION

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

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