Ryan Watson v Skilled Group Limited

[2015] FWC 1883

[2015] FWC 1883

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ryan Watson
v
Skilled Group Limited
(U2015/187)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 MARCH 2015

Application for relief from unfair dismissal.

[1] Mr Ryan Watson alleged the termination of his employment by Skilled Group Limited was unfair. In his application he advised that he commenced employment on 14 July 2014 and his employment ended on 13 January 2015.

[2] An employee is required to have served six months employment to be protected from unfair dismissal.

[3] 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.

[4] In determining whether Mr Watson has served the minimum employment period, no assessment has been made about the merits of his case. Parliament has said that to be protected from unfair dismissal an employee must have served for six months (or one year in the case of a small business).

[5] Mr Watson submitted that because he started work at 8.30am on 14 July 2014 and was not notified of his dismissal until 4pm on 13 January 2015, he worked exactly six months to the day.

[6] On 10 March 2015, I forwarded to Mr Ryan an extract from the Acts Interpretation Act 1901 and provided him with a link the Unfair Dismissal Benchbook which includes a section on “how to calculate the minimum period of employment”. I provided him with an opportunity to made further submissions by 17 March 2015. Mr Ryan did not provide any additional information.

[7] As there are no disputed facts it is not necessary to conduct a hearing or a conference in this matter.

[8] Section 22 of the Acts Interpretation Act 1901 as it existed at 25 June 2009 1 provides as follows:

In any Act, unless the contrary intention appears:
...
(b) `Month’ shall mean calendar month;
...
(g) `Calendar month’ means a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month”.

[9] As a consequence the six months ended at midnight on 13 January 2015. As Mr Watson’s employment was terminated prior to this time he was not protected from unfair dismissal and his application must be dismissed.

DEPUTY PRESIDENT

 1 See s.40A of the Fair Work Act 2009.

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