Nilari Bamunuarachchi v Simplot Australia Pty Ltd

[2016] FWC 1823

[2016] FWC 1823

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nilari Bamunuarachchi
v
Simplot Australia Pty Ltd
(U2016/4402)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 22 MARCH 2016

Application for relief from unfair dismissal.

[1] Ms Nilari Bamunuarachchi alleged the termination of her employment by Simplot Australia Pty Ltd was unfair. In her application she advised that she commenced employment on 20 July 2015 and her employment ended 18 January 2016. She stated that she was given notice of her dismissal on 5 January 2016.

[2] In the employer response Simplot objected to Ms Bamunuarachchi’s application because she had not served the minimum period of employment.

[3] The matter was listed for a telephone conference on 22 March 2016. Ms Bamunuarachchi submitted that she was required to relocate to take up the position with Simplot. Simplot paid her relocation costs and her accommodation costs and she relocated on 18 July 2015. Consequently she submitted that she had served the minimum employment period.

[4] A copy of Ms Bamunuarachchi’s contract of employment was in evidence as was a letter giving her notice of termination which was dated 5 January 2016. Her contract of employment provided that Ms Bamunuarachchi’s employment commenced on 20 July 2015. Further, the termination letter advised that her employment would end on 18 January 2016. None of this was disputed.

[5] An employee is required to have served six months (one year if employed by a small business) employment to be protected from unfair dismissal. Section 383 of the Fair Work Act 2009 provides 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.

[6] In determining whether Ms Bamunuarachchi has served the minimum employment period, no assessment has been made about the merits of her case. The Fair Work Commission has no discretion to waive the requirements of the Act.

[7] On the evidence before the Commission, Ms Bamunuarachchi has not served the minimum employment period and therefore she is not protected from unfair dismissal.

[8] I do not accept the submission that Ms Bamunuarachchi’s employment commenced prior to 20 July 2015. That Ms Bamunuarachchi accepted the offer of employment on 23 June 2015 or moved to the location on 18 July 2015 does not change when the employment commenced, which was 20 July 2015.

[9] However, even on Ms Bamunuarachchi’s submission that she commenced employment on 18 July 2015, she had not served the minimum employment period as she was given notice of the termination of her employment on 5 January 2016. That is the relevant date for determining if she met the minimum employment period.

[10] As a consequence at the time of her dismissal Ms Bamunuarachchi was not protected from unfair dismissal and her application must be dismissed.

DEPUTY PRESIDENT

Appearances:

N. Bamunuarachchi on her own behalf.

S. King for the Respondent.

Hearing details:

2016.

Melbourne, by telephone link:

March 22.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR578266>