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.

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Ryan Watson sought relief from an unfair dismissal by Skilled Group Limited. Watson, an employee of Skilled Group, was dismissed from his position. The crux of the dispute was whether the dismissal was justified under the Fair Work Act 2009. Watson contended that the dismissal was unfair and sought reinstatement or compensation. Skilled Group argued that the dismissal was fair and justified based on Watson's misconduct.

The central legal issue before the Commission was whether the dismissal was procedurally fair and substantively justified. The procedural fairness hinged on whether Watson was given an opportunity to respond to the allegations against him and whether the process was transparent and unbiased. The substantive fairness focused on whether the misconduct warranted the dismissal. The Commission examined whether the misconduct was serious enough to justify termination without notice or pay in lieu of notice.

The Fair Work Commission determined that the dismissal was procedurally fair as Watson was given adequate notice and an opportunity to respond. However, the Commission found that the misconduct was not severe enough to warrant dismissal without notice. Consequently, the Commission ruled that the dismissal was unfair and ordered Skilled Group to pay Watson compensation equivalent to six weeks' pay, reflecting the notice period that should have been provided.

Ryan Watson v Skilled Group Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established