Ms Lisa Croft v Crestbound Pty Ltd T/A Harvey Electrical

[2020] FWC 1339

[2020] FWC 1339

FAIR WORK COMMISSION

DECISION

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

Ms Lisa Croft
v
Crestbound Pty Ltd T/A Harvey Electrical
(U2020/343)

COMMISSIONER WILLIAMS PERTH, 16 MARCH 2020

Application for an unfair dismissal remedy.

[1] This decision concerns an application made by Ms Lisa Croft (Ms Croft) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Respondent is Crestbound Pty Ltd T/A Harvey Electrical (the Respondent).

[2] The application states Ms Croft’s period of employment was from 1 May 2019 to 27 December 2019.

[3] The Respondent filed a response to the application and therein raised two jurisdictional objections, first that the Applicant was not dismissed and second that in any event the Applicant had not completed the perquisite minimum period of employment. The response states the Respondent had six employees at the time of Ms Croft’s employment and that her period of employment was 1 May 2019 to 31 December 2019.

[4] Notwithstanding the jurisdictional objections, a conciliation conference was held however the matter was not resolved.

[5] Consequently, the application was allocated to myself for determination.

[6] Given the jurisdictional objections raised by the Respondent on 5 March 2020, I wrote to Ms Croft explaining that an employee is only eligible to make an application for an unfair dismissal remedy if they have completed the minimum employment period of one year, where the employer employs fewer than 15 employees (a small business employer) referring to the relevant provisions namely s.382 and s.383 of the Fair Work Act 2009.

[7] The letter said that in this case the Respondent points out that she was employed for less than a year and states they employed fewer than 15 employees.

[8] The letter invited Ms Croft to provide information in response to this jurisdictional objection.

[9] Ms Croft responded to the letter by email on 10 March 2020, stating her period of employment was 1 May 2019 to 27 December 2019.

[10] She also attached a statement of events that detailed her experiences during her period of employment. Ms Croft did not contest the Respondents assertion that it employed only six employees.

Consideration

[11] It is common ground between the parties that the period of Ms Crofts’ employment with the Respondent was less than one year. I find this to be the case.

[12] I further find that throughout Ms Croft’s period of employment the Respondent employed fewer than 15 employees.

[13] The relevant sections of the legislation are set out below.

“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) 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.

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.”

[14] In this case the Respondent was a small business as defined in s.23 of the Act and therefore the minimum employment period prescribed by s.383 applicable to Ms Croft was one year.

[15] Ms Croft had not completed the requisite minimum employment period and so by virtue of s.382 was not a person protected from unfair dismissal.

[16] Ms Crofts application is therefore outside the jurisdiction of the Commission and so cannot proceed further and must now be dismissed. An order to that effect will now be issued.

[17] Given this decision the Commission does not need to consider further the Respondent’s other jurisdictional objection that Ms Croft was not dismissed.

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