Pamela Thorley v Avon Community Employment Support Centre Inc T/A Essential Personnel Lifestyle Services

[2016] FWC 2005

[2016] FWC 2005

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Pamela Thorley
v
Avon Community Employment Support Centre Inc T/A Essential Personnel Lifestyle Services
(U2016/4656)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 31 MARCH 2016

Application for relief from unfair dismissal - minimum employment period - application dismissed.

[1] The following are the reasons for my decision which was handed down at the telephone hearing of this matter on 30 March 2016. At the telephone hearing I determined that Ms Pamela Thorley (the Applicant) was not protected from unfair dismissal as she had not served the minimum employment period.

[2] Ms Thorley made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that her dismissal by Avon Community Employment Support Centre Inc T/A Essential Personnel Lifestyle Services (the Respondent) on 27 January 2016 was unfair. In her application, Ms Thorley stated that her employment with the Respondent commenced in August 2015. Ms Thorley’s application was received by the Fair Work Commission (the Commission) on 18 February 2016, which is one day outside the 21 day timeframe specified in s.394(2)(a) of the Act.

[3] The Commission wrote to Ms Thorley on 25 February 2016 advising that her application indicated that she may not have been employed for the minimum employment period and requesting that she complete an Outline of Argument and Statement of Evidence to assist the Commission in determining the matter.

[4] As noted above, the matter was the subject of a telephone hearing on 30 March 2016. At the hearing Ms Thorley appeared on her own behalf, while Mr Tyler Clews of the Chamber of Commerce and Industry of Western Australian and Mr Tony Marwick appeared for the Respondent.

[5] At the hearing, the Respondent contended that Ms Thorley had been employed on 4 August 2015 and was dismissed on 28 January 2016, a period of five months and twenty four days. While Ms Thorley submitted that her termination letter was dated 27 January 2016, she acknowledged that she had been employed by the Respondent for less than six months and was therefore not protected from unfair dismissal.

[6] Section 382 of the Act provides that an employee must have completed a period of employment with his or her employer of at least the minimum employment period. Section 383 of the Act provides that”

“383 Meaning of “minimum employment period”

The minimum employment period is:
(1) 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

(2) If the employer is a small business employer – one year ending at that time.”

[7] As Ms Thorley had not served the minimum employment period with the Respondent, she is not protected from unfair dismissal. Accordingly, her application is incompetent and must be dismissed. An order to that effect will be issued with this decision.

[8] Given that Ms Thorley’s application is incompetent, it is not necessary for the Commission to hear and determine whether there were exceptional circumstances warranting the Commission granting Ms Thorley a further period to make her application.

Appearances:

P. Thorley on her own behalf.

T. Clews with T. Marwick for the Respondent.

Hearing details:

2016.

Melbourne and Perth (telephone hearing):

March 30.

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