Paul Bruckner v Nakshatra Foods Pty Ltd

[2023] FWC 1940

[2023] FWC 1940

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Paul Bruckner
v

Nakshatra Foods Pty Ltd

(U2023/4450)

COMMISSIONER SIMPSON BRISBANE, 10 AUGUST 2023

Application for an unfair dismissal remedy – Jurisdictional objection that the Applicant does not satisfy the minimum employment period – Application dismissed.

1. During a directions hearing on 4 August 2023 I dismissed application U2023/4450 on the basis that the application did not fall within the jurisdiction of the Fair Work Commission (the Commission).  I indicated to the parties I would publish written reasons.  Below are those reasons. 

1. On 23 May 2023, Mr Paul Bruckner (Mr Bruckner /the Applicant) applied to the Commission under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging he was unfairly dismissed from his employment with Nakshatra Foods Pty Ltd (the Respondent).

1. After the filing of its Form F3 the Respondent filed a Form F4 on 23 July 2023 raising a jurisdictional objection that the Applicant did not meet the minimum employment period.  A directions hearing was listed for Friday 4 August 2023. The Applicant appeared on his own behalf and Mr James Penhall and Mr Veerraju Mada appeared for the Respondent.

1. The Respondent noted that the Applicant was employed by Nakshatra Foods (being the Respondent to this Application) from the period of 29 April 2023 to 22 May 2023 which does not meet the minimum employment period set in s.383. The Applicant was previously hired through the previous owners of the business, Sunshine Management Services, but the previous owner and the Applicant had come to an agreement for the employment to be terminated. The Applicant’s final working day with Sunshine Management Services was 18 March 2023.

1. The Applicant approached the store on the week of 25 April 2023 to 28 April 2023 about obtaining his position with the store as he had heard there was a new owner.  Mr Mada had taken ownership of the store on 17 April 2023.  The Applicant commenced on 29 April 2023 as a casual rather than part time as with the previous owner and his employment was later terminated on the 22 May 2023.

1. At the directions hearing I asked the Applicant to confirm the dates he maintained that he was employed, and he confirmed they were the dates as outlined above.  

1. It is apparent that the Applicant has been employed for less than 6 months. The Applicant does not meet the minimum employment period as defined in section 383 of the Act and is therefore not a person protected from unfair dismissal as defined in section 382. As the Applicant is not protected from unfair dismissal the Commission has no power to deal with his application and on that basis the application is dismissed. An order to that effect will be issued separately and concurrently with this decision.

COMMISSIONER

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