Rosemary Brown v Rowe Bristol Lawyers

[2016] FWC 35

[2016] FWC 35

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rosemary Brown
v
Rowe Bristol Lawyers
(U2015/13713)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 4 JANUARY 2016

Application for relief from unfair dismissal.

[1] Ms Rosemary Brown alleged the termination of her employment by Rowe Bristol Lawyers Pty Ltd was unfair. In her application she advised that she commenced employment on 15 October 2014, she was given notice of termination on 1 October 2015 and her employment ended 8 October 2015.

[2] In its response, Rowe Bristol Lawyers objected to Ms Brown’s application on the basis that it was a small business and Ms Brown had not been employed for the minimum employment period.

[3] Ms Brown filed material in support of her application and she conceded that Rowe Bristol Lawyers employed fewer than 15 employees.

[4] As there was no factual disputes between the parties either about Ms Brown’s service or that Rowe Bristol Lawyers are a small business it is not necessary to have a hearing.

[5] An employee is required to have served six months (one year if employed by a small business) employment to be protected from unfair dismissal.

[6] Section 383 of the Fair Work Act 2009 provides 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.

[7] In determining whether Ms Brown has served the minimum employment period, no assessment has been made about the merits of her case. The Fair Work Commission has no discretion to waive the requirements of the Act.

[8] On the evidence before the Commission, Ms Brown has not served the minimum employment period, therefore she is not protected from unfair dismissal and her application must be dismissed.

DEPUTY PRESIDENT

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