Rickie Dent v Clayton Searle T/A CRM Searle

[2013] FWC 611

[2013] FWC 611

FAIR WORK COMMISSION

DECISION

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

Rickie Dent
v
Clayton Searle T/A CRM Searle
(U2012/11823)

SENIOR DEPUTY PRESIDENT HARRISON SYDNEY, 29 JANUARY 2013

Application for unfair dismissal remedy, application not made within 14 day time limit, minimum period of employment not completed, application dismissed.

[1] This decision concerns an application made by Mr Dent (the Applicant) under s.394 of the Fair Work Act 2009 (the Act). CRM Searle (the Respondent) has objected to the matter proceeding on the basis that it is a small business employer 1 and the Applicant was employed for less than the minimum employment period2. It also notes that the application was lodged out of time and opposes any extension of time being granted.

[2] The matter was listed before me on 25 January 2013. Mr Searle, the proprietor of the Respondent attended via a telephone link. The Applicant attended in person with his mother, Ms McGarrigle.

[3] The Applicant was provided with an opportunity to address me on the Respondent’s objections. He was unable to contradict the Respondent’s assertion that it was a small business employer, defined by s.23 of the Act as an employer that employs fewer than 15 employees. He was also unable to provide me with any evidence that he was employed for the minimum employment period. I should also note that on 18 January 2013, my associate sent correspondence to the Applicant outlining the relevant provisions of the Act and the facts that appeared to be established by documents filed by the Respondent.

[4] From the documents filed, I make the following findings:

● The Applicant’s employment with the Respondent commenced on 23 January 2012;

● The Applicant’s dismissal took effect on either 23 June 2012 or 25 July 2012 (according to the Applicant) or 21 June 2012 (according to the Respondent). In each case it is clear that the Applicant was employed for a period of less than 12 months; and

● The Respondent is a small business employer as defined in s.23 of the Act.

[5] Sections 382 and 383 of the Act are relevant to this matter and are in the following terms:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

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.”

[6] Having made a finding that the Respondent is a small business employer and that the Applicant was employed for a period of less than 12 months, the effect of the above provisions are that he is not a person protected from unfair dismissal. Accordingly, his s.394 application cannot proceed any further.

[7] Given these findings it is not necessary for me to deal with the Respondent’s objection to the extension of time for filing the s.394 application. Even if time was extended the application could proceed no further in light of the finding I have made in paragraph [6].

[8] The s.394 application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr Dent, Applicant

Mr Searle, Respondent

Hearing details:

2013

25 January

Sydney

 1 Fair Work Act 2009 (Cth) s.23

 2 Fair Work Act 2009 (Cth) s.383

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