Sadija Caneska v Compass Group Remote Hospitality Services Pty Ltd T/A ESS Support Services Worldwide

[2020] FWC 6044

[2020] FWC 6044

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sadija Caneska
v
Compass Group Remote Hospitality Services Pty Ltd T/A ESS Support Services Worldwide
(U2020/12667)

COMMISSIONER WILLIAMS PERTH, 11 NOVEMBER 2020

Termination of employment - jurisdiction - minimum employment period.

[1] This decision concerns an application made by Mrs Sadija Caneska (Mrs Caneska or the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The application was lodged on 21 September 2020. The respondent is Compass Group Remote Hospitality Services Pty Ltd T/A ESS Support Services Worldwide (the Respondent).

[2] The application was filed on behalf of Mrs Caneska by her representative Unfair Dismissals Australia Pty Ltd.

[3] The application states Mrs Caneska began working for the Respondent on 15 January 2020, was notified of her dismissal on 4 September 2020 and that the dismissal took effect on that same date.

[4] The Respondent’s response filed to the application however states that the Applicant began working for the Respondent on 31 May 2020 and that the date of first employment provided in the application is incorrect.

[5] The Respondent confirms that the Applicant was notified of her dismissal on 4 September 2020 and that dismissal took effect on the same date.

[6] Consequently, the Respondent has raised the jurisdictional objection that the Applicant’s employment does not meet the minimum employment period of six months required by s.383 of the Act.

[7] The Respondent’s Form F3 – Employer’s Response also attached a copy of a Contract of Employment, a Letter of Termination and a Statement of Service regarding Mrs Caneska.

[8] A telephone conciliation that had been listed for 9 October 2020 was cancelled at the Respondent’s request and the cancellation notice of listing stated that the Respondent had advised they wish for their objection to be dealt with in the first instance.

[9] In light of the Respondent’s objection the Commission wrote to the Applicant and her representative by email on 8 October 2020 explaining that the Respondent had moved for the dismissal of the application because Mrs Caneska had not completed the minimum employment period of six months and directing them to provide information in response to the jurisdictional objection raised by the Respondent in their Form F3 – Employer’s Response by Friday, 23 October 2020.

[10] That same day on 8 October 2020 the Applicant sent an email to the Commission’s chambers which stated,

“I have been employed fulltime at the same roll since 15th of January 2020. My lawyer Mackenzie had gone through the contract and informed me that it was a rollover.” (sic)

[11] The Applicant then listed a phone number for Mackenzie.

[12] This email was copied to two different email addresses of Unfair Dismissals Australia Pty Ltd.

[13] As at the date of this decision this is the only information provided by the Applicant or her representative in response to the Commission’s directions.

Consideration

[14] The Contract of Employment filed with the Respondent’s response states that Mrs Caneska’s contract of employment will commence on 31 May 2020.

[15] Clause 8 Probation Period of that contract of employment states that,

“Your employment is conditional on you satisfactorily completing a probation period of six months.”

[16] The letter titled “Re: Unsuccessful Probationary Period” filed with the Respondent’s response is dated 4 September 2020 and addressed to Mrs Caneska. The letter advises that her employment will be terminated on 4 September 2020 and she will be paid for 7 days in lieu of notice.

[17] The letter titled “Re: Statement of Service” filed with the Respondent’s response states that Mrs Caneska was employed “… from 31/05/2020 through until 4/09/2020.”

[18] The only information provided by the Applicant is her email restating that she has been employed since 15 January 2020.

[19] Section 382 of the Act, set out below, requires that for a person to be protected from unfair dismissal they have completed a period of employment with their employer of at least the minimum employment period.

“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.”

[20] Section 383 of the Act, set out below, prescribes that if the employee’s employer is not a small business the minimum employment period is six months.

“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.”

[21] In this case I am satisfied the Respondent is not a small business employer. Consequently, the minimum employment period applicable to Mrs Caneska is six months.

[22] On the balance of probabilities, I find that Mrs Caneska’s employment commenced on 31 May 2020 and that she was both given notice and the dismissal took effect on 4 September 2020.

[23] Therefore, Mrs Caneska’s period of employment was less than six months.

[24] Mrs Caneska has not completed the prerequisite minimum employment period and so is not able to make this application.

[25] I uphold the Respondent’s objection and dismiss this application for want of jurisdiction. An order [PR724448] to that effect will now be issued.

Final written submissions:

Applicant, 8 October 2020.
Respondent, 2 October 2020.

Printed by authority of the Commonwealth Government Printer

<PR724447>