Owen v Capital Smart Repairs

[2016] FWC 1429

[2016] FWC 1429

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Melissa Owen
v
Capital Smart Repairs
(U2016/4283)
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 8 MARCH 2016

Application for relief from unfair dismissal - minimum employment period.

[1]        On 4 February 2016, Ms Melissa Owen made an application for a remedy for unfair

dismissal under section 394 of the Fair Work Act 2009.

[2]        Ms Owen advised that she commenced employment with Capital Smart Repairs on 27

July 2015 and that her dismissal took effect on 27 January 2016.

[3]        On 4 February 2016, correspondence was sent to Ms Owen pointing out that on the

basis of the information contained in the application, she had not served the minimum

employment period. The correspondence required Ms Owen to advise the Fair Work

Commission within 14 days whether she wished to proceed with her application.

[4]        On 10 February 2016, Ms Owen contacted the Commission and advised that the dates

she provided in her application were correct.

[5]        On 23 February 2016, Capital Smart Repairs responded to Ms Owen’s application and

raised a jurisdictional objection. It submitted that Ms Owen was dismissed on 25 January

2016 with immediate effect.

[6]        The matter was listed for hearing to determine the jurisdictional issue.

[7]        Prior to the hearing, the file was referred to me. Following a review of the file, I

caused correspondence to be sent to Ms Owen on 29 February 2016 and explained that based

on the material before the Commission, she had not met the minimum employment period.

She was asked to reconfirm the dates of her employment. I proposed that if the dates were

correct, I would vacate the hearing and determine the matter without a hearing as there are no

facts in dispute.

[8]        Ms Owen responded to that correspondence on 1 March 2016 and advised that she was

sent home from work on 25 January 2016 as she was unwell. She says that she was paid for

that day. That evening, outside of business hours, her employment was terminated. Ms Owen

maintains that because of the Australia Day public holiday, her dismissal took effect on 27
[2016] FWC 1429

January 2016 – which would have been her next day of work. She further states that her six

month review had already been conducted the week prior to her termination and she was not

given any indication that her employment was in danger. Following her dismissal, on 27

January 2016, she was asked by her team leader to have a face to face meeting at her home or

the workplace.

[9]        Section 382 of the Act provides that a person is protected from unfair dismissal if they

have completed a period of employment of at least the minimum employment period.

[10]      Section 383 of the Act sets out the minimum employment period:

“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.”

(my emphasis)

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[11]	S.22 of the Acts Interpretation Act 1901 as it existed at 25 June 2009	provides as
follows:
In any Act, unless the contrary intention appears:

...

(b) `Month' shall mean calendar month;

...

(g) `Calendar month' means a period commencing at the beginning of a day of

one of the 12 months of the year and ending immediately before the beginning

of the corresponding day of the next month or, if there is no such

corresponding day, ending at the expiration of the next month".

[12]      As a consequence the six months ended at midnight on 26 January 2016. As Ms Owen

employment was terminated prior to this time she was not protected from unfair dismissal.

[13] That Ms Owen’s employment was terminated outside of business hours does not alter

the effective date of dismissal Ms Owen’s employment was terminated when she was advised
[2016] FWC 1429

of the termination. That she had completed her six month review is also not relevant. The

question to be determined was whether Ms Owen had worked the minimum employment

period.

[14]      In determining whether Ms Owen has served the minimum employment period, no

assessment has been made about the merits of her case. The Commission has no discretion to

waive the requirements of the Act.

[15]      In the circumstances of this matter and in considering s.383 of the Act, I am satisfied

Ms Owen has not completed the required minimum employment period and her application

has no reasonable prospects of success.

[16]      Section 587(1) of the Act provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may

dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.”

[17]      Consequently, the application is dismissed under section 587(1)(c) of the Act. An

Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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See s.40A of the Fair Work Act 2009.