Samantha Amenta v Speedie Waste Pty Ltd

[2013] FWC 848

[2013] FWC 848

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Samantha Amenta
v
Speedie Waste Pty Ltd
(U2012/10248)

DEPUTY PRESIDENT SMITH MELBOURNE, 7 FEBRUARY 2013

Application for an unfair dismissal remedy - jurisdictional objection - minimum employment period - when the person is given notice of the dismissal.

[1] On 12 November 2012 Ms S. Amenta (the Applicant) sought an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made against her former employer Speedie Waste Pty Ltd (the Respondent) which raised a jurisdictional objection which must be considered as a preliminary matter.

[2] At issue is whether the Applicant has served the “minimum employment period” required by section 382 of the Act for protection from unfair dismissal.

[3] Section 382 of the Act prescribes when a person is protected from unfair dismissal as follows:

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.

[4] Subsection 382(a) of the Act requires an employee to have served “at least the minimum employment period” before they are protected. The minimum employment period is defined in section 383 of the Act 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.

[5] In accordance with subsection 382(a), I am required to calculate a person’s “minimum employment period” from commencement of employment up to the earlier of the time the person was given notice of the dismissal or immediately before the dismissal took effect.

[6] The Respondent submitted that the Applicant commenced employment on 24 April 2012, was notified of the dismissal on 19 October 2012 and the dismissal took effect on 26 October 2012.

[7] These dates mirror those provided by the Applicant in the application form she filed to commence these proceedings.

[8] The Applicant did not attend the hearing convened to hear this matter, however a copy of the transcript was sent to her and she was asked to file a written response.

[9] The Applicant filed her response on 6 February 2013 and addressed the issue as follows:

“I believe based on the facts that have been presented to Fair Work Australia, I was indeed EMPLOYEED [sic] (working days) for a period of 6 months. I do not believe that the date told of termination should at all be a factor.”

[10] As it appears that the relevant dates of employment are not contested by the parties, I find that the “minimum employment period” is to be calculated from 24 April 2012, the date the Applicant commenced employment, up to 19 October 2012, the date the Applicant was given notice of the dismissal.

[11] This calculation results in the Applicant failing to complete of the six month period required under section 382(a), meaning the Applicant has not met the requirements for protection from unfair dismissal outlined in section 383 of the Act.

[12] On that basis, I dismiss this application.

[13] It is noted that the application in this matter was filed outside the 14 day time frame required by subsection 394(2) of the Act. Given the reasons for dismissing the application outlined above, I do not believe it is necessary to deal with this issue insofar as it relates to subsection 394(3) of the Act.

DEPUTY PRESIDENT

Hearing details:

2013.

Melbourne.

1 February.

Final written submissions:

2013.

6 February.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR533858>