Ms Vicky Emmanuel v Barry Plant Oakleigh

[2016] FWC 8897

[2016] FWC 8897

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Ms Vicky Emmanuel
v
Barry Plant - Oakleigh
(U2016/9972)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 12 DECEMBER 2016

Application for unfair dismissal remedy; minimum employment period; application made outside of time prescribed; application dismissed.

[1] This is an edited version of my decision given ex tempore and recorded in transcript on 9 December 2016. Ms Vicky Emmanuel (Applicant) has made an application seeking a remedy in respect of her dismissal pursuant to s.394 of the Fair Work Act 2009 (Act).

[2] The application that was lodged also raises other issues which do not, on their face, identify any proper jurisdictional basis for the Fair Work Commission (Commission) dealing with those matters, but so far as the application concerns the dismissal it has been taken to be an application pursuant to s.394 of the Act. Section 396 of the Act requires the Commission to decide certain matters before dealing with the merits of the application. Two of those matters relate first, to decide whether the application is made within the period prescribed by the Act and secondly, to decide whether the Applicant was a person protected from unfair dismissal at the time of dismissal.

[3] Barry Plant – Oakleigh (Respondent) has raised both of those matters as jurisdictional objections to my further dealing with the application and that is the purpose of the proceeding today.

[4] It is undisputed and common between the parties that the Applicant commenced employment with the Respondent on 23 November 2009. It is also common between the parties that the Applicant was dismissed from her employment on 15 March 2010. In the result, the Applicant's period of employment was for a period of less than four months.

[5] Section 382 of the Act sets out the circumstances in which a person is protected from unfair dismissal. Relevantly, that section provides that a person is protected from unfair dismissal if, at the time of the dismissal the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period. Section 383 of the Act sets out the meaning of “minimum period of employment” and relevantly, provides that if the employer is not a small business employer, the period is six months ending at the earlier of the following times; the time at which the person was given notice of the dismissal, or immediately before the dismissal.

[6] It is common ground that the Applicant had not completed the minimum employment period at the time immediately before her dismissal. In those circumstances, the Applicant is not a person who is protected from unfair dismissal and consequently, the Commission does not have jurisdiction to deal with the application. It is therefore unnecessary for me to decide the question of whether a further period should be allowed within which the application may be lodged and I dismiss the application.

[7] An order giving effect to my decision is issued separately in PR588415.

DEPUTY PRESIDENT

Appearances:

Ms V. Emmanuel, Applicant

Ms M Clarebrough, Counsel for the Respondent

Hearing details:

2016.

Melbourne.

December 9.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR588444>