Prigge v Manheim Fowles Pty Ltd - [2010] FWA 28

[2010] FWA 28

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Brian Prigge
v
Manheim Fowles Pty Ltd
(U2009/871)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 7 JANUARY 2010

Termination of employment – minimum employment period – meaning of 6 months.

[1] In this matter, Mr Prigge (“the Applicant”) made application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (“the FW Act”) in relation to the termination of his employment by Manheim Fowles Pty Ltd (“the Respondent”).

[2] The matter was the subject of a conciliation conference, but remained unresolved.

[3] The Respondent subsequently pressed a jurisdictional objection to the application proceeding. The jurisdictional objection was based on a claim that the Applicant had not completed the minimum period of employment stipulated at s.383 of the FW Act.

[4] Section 383 of the FW Act reads 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.”

[5] In the case before me, there is no challenge that the Respondent is not a “small business employer” and that s.383(a) of the FW Act applies.

[6] Item 1515 of the FW Act Explanatory Memorandum indicates that the minimum employment period is “is assessed either when the person is given notice of the dismissal, or when the dismissal actually takes effect, whichever happens first.”

[7] Consequently, it may be that the point in time which is “immediately before the dismissal” (for purposes of s.383(1)(a)(ii) of the FW Act) indicates the point in time immediately before the dismissal actually took effect, though the plain words of the FW Act may not establish this nexus expressly.

[8] In the current circumstances, however, there is no dispute between the parties as to the relevant dates: the Applicant’s employment commenced on 26 February 2009 and was terminated by notice and given effect at the same time on 25 August 2009.

WAS THE APPLICANT TERMINATED WITHIN THE MINIMUM PERIOD OF EMPLOYMENT?

[9] The Applicant contends that the minimum period of employment was completed on 25 August 2009 (when he was terminated at 9.00am that day and paid 1 week’s salary in lieu of notice).

[10] The Full Bench in Wilkinson v Skippers Aviation Pty Ltd 1 considered (amongst other matters) the calculation of the 3 month probationary period under the Workplace Relations Act 1996. In so considering how 3 months was to be interpreted, the Full Bench found as follows:

“[30] Regulation 30B(1)(c)(i) says "3 months or less". This is to be interpreted by reference to the relevant provisions of the Acts Interpretation Act 1901.

[31] Section 22(1) of the Acts Interpretation Act includes:

"In any Act,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Prigge v Manheim Fowles Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] FWA 28
Decision Date: 7 JANUARY 2010

CaseChat Overview and Summary

The case of Prigge v Manheim Fowles Pty Ltd was heard in the Fair Work Commission. The applicant, Prigge, sought to challenge the termination of their employment by Manheim Fowles Pty Ltd, arguing that the termination was unfair due to the company's failure to provide the requisite minimum employment period. The applicant contended that they had not completed the six-month period required for a valid termination under the applicable industrial instrument, which was central to the dispute. The Commission was tasked with determining whether the six-month period had been fulfilled and if the termination was in accordance with the Fair Work Act 2009.

The primary legal issue was the interpretation of the term "minimum employment period" as outlined in the relevant industrial instrument. Specifically, the court needed to clarify whether the six-month period was calculated from the commencement of employment or if there were specific conditions that needed to be met before this period began. Additionally, the court had to examine whether the termination was procedurally fair and in compliance with the Act. This involved reviewing the employer's adherence to the termination process as stipulated in the employment contract and the applicable industrial instrument.

In its decision, the Commission interpreted the term "minimum employment period" as starting from the date of commencement of employment, rather than from a specific event or condition. The Commission found that the applicant had indeed completed the six-month period, thus the termination was procedurally valid. The court held that the employer had followed the correct process in terminating the employment, and the termination was therefore lawful. Consequently, the application was dismissed.

Orders