Paul Bruckner v Nakshatra Foods Pty Ltd

[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.

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.

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).

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.

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.

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.

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.

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for an unfair dismissal remedy by Mr Paul Bruckner against Nakshatra Foods Pty Ltd. Mr Bruckner alleged that he was unfairly dismissed from his employment with the respondent company. The respondent, however, raised a jurisdictional objection, asserting that Mr Bruckner did not satisfy the minimum employment period required to bring such an application under the Fair Work Act 2009. The central legal issue for the Commission to decide was whether Mr Bruckner's employment period with Nakshatra Foods Pty Ltd met the statutory threshold that would entitle him to seek an unfair dismissal remedy.

The Commission examined the timeline of Mr Bruckner's employment, which included periods with both the previous business owner, Sunshine Management Services, and the new owner, Nakshatra Foods Pty Ltd. Mr Bruckner's employment with Sunshine Management Services ended on 18 March 2023, followed by a brief period of employment with Nakshatra Foods Pty Ltd from 29 April 2023 to 22 May 2023. The Commission determined that the total duration of Mr Bruckner's employment, when both periods were combined, did not reach the six-month minimum required under section 383 of the Fair Work Act. Consequently, Mr Bruckner did not meet the criteria for protection against unfair dismissal, leading to the conclusion that the Commission lacked the jurisdiction to entertain his application. As a result, the application was dismissed.

The Fair Work Commission concluded that Mr Bruckner's total employment period did not meet the statutory requirement of six months, thus he was not protected under the Act. Accordingly, the Commission dismissed the application for lack of jurisdiction. The decision underscored the importance of the statutory threshold in determining the eligibility for unfair dismissal remedies. The Commission's ruling was based on the clear statutory requirement that an employee must have been continuously employed for at least six months to be protected from unfair dismissal. Given this finding, the Commission had no authority to proceed with Mr Bruckner's application. An order dismissing the application will be issued separately.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established