Ng Chong Meng v Koch Group Pty Ltd T/A Koch Cleaning

[2014] FWC 4973

[2014] FWC 4973

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ng Chong Meng
v
Koch Group Pty Ltd T/A Koch Cleaning
(U2014/7906)

DEPUTY PRESIDENT MCCARTHY PERTH, 31 JULY 2014

Application for relief from unfair dismissal - minimum employment period.

[1] An Unfair Dismissal Application (the Application) was lodged by Mr Ng Chong Meng (the Applicant) on 16 June 2014 claiming that he had been unfairly dismissed from his employment with Koch Group Pty Ltd trading as Koch Cleaning (the Respondent). There are obvious errors in the Application lodged. For example, the Application stated that the Applicant began working for the Respondent on 12 June 2014, yet his dismissal is claimed to have taken effect on 30 May 2014.

[2] The Respondent lodged an Objection to the Application (the Objection) on 3 July 2014. In that objection the Respondent states that the Applicant was employed on 12 June 2013 and that at the time immediately before the dismissal the Respondent employed four employees. The Respondent also lodged an Employer Response to the Application (the Response). In the Response the Respondent objected to the Application on the grounds that the Applicant did not satisfy the minimum employment period. Attached to the Response was documentation supporting the Respondent’s contention regarding the date of dismissal being 30 May 2014.

[3] I wrote to the Respondent on 11 July 2014 and requested that they complete a Small Business Fair Dismissal Code Checklist (the Checklist). On 14 July 2014 the Respondent provided a completed Checklist which the Respondent states was “initially” completed and signed on 26 May 2014. The Checklist states that the Applicant was employed from 12 June 2013 and the Respondent employed four employees.

[4] I wrote to the Applicant on 17 July 2014 and requested that he advise my office if he disputed either the number of employees employed or the period of his employment. I received a response on behalf of the Applicant which amongst other things confirms that he was employed from 12 June 2013 to 30 May 2014. The Applicant made no reference to the number of employees employed by the Respondent at the time of his dismissal.

[5] I therefore find that the relevant facts in this matter are not disputed. The Applicant agrees that he was employed for less than one year. The Respondent states that there were less than 15 employees employed immediately before the Applicant’s dismissal. The number of employees was not disputed by the Applicant and I therefore find that less than 15 employees were employed. Thus, I find that the Applicant has not met the minimum employment period and thus is precluded from lodging an application for Unfair Dismissal.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 20 July 2014.

Respondent, 14 July 2014.

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