Sarah Dark v Combined Communications Network Pty Ltd

[2013] FWC 5578

[2013] FWC 5578

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sarah Dark
v
Combined Communications Network Pty Ltd
(U2013/9707)

DEPUTY PRESIDENT BOOTH SYDNEY, 15 AUGUST 2013

Termination of employment - alleged unfair dismissal - jurisdictional objection - minimum employment period.

[1] On 19 May 2013, Miss Sarah Dark (the Applicant) lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] On 4 June 2013, Combined Communications Network Pty Ltd (the Respondent) filed its response to the application indicating that it intended to press a jurisdictional objection on the grounds that the Applicant “was terminated during the term of her probationary period”. 1

[3] At issue is whether the Applicant has served the “minimum employment period” required by s.382 of the Act.

[4] 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.

Note: High income threshold indexed to $123,300 from 1 July 2012

[5] The minimum employment period is defined in s.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.

[6] In accordance with s.382(a) of the Act, 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.

[7] The Respondent submitted that the Applicant commenced employment on 12 November 2012 and was terminated on 7 May 2013.

[8] In her application, the Applicant asserts that she commenced employment on 3 November 2012. The Respondent provided a copy of the Applicant’s Letter of Appointment which was dated 9 November 2012. 2

[9] The Applicant did not attend the hearing before me on 2 August 2013. My associate wrote to the Applicant on 2 August 2013 seeking an explanation for her non-attendance and requested a response to the Respondent’s jurisdictional objection.

[10] The Applicant filed her response on 6 August 2013. She stated the following in relation to the jurisdictional objection:

“I have no contention with the outcome of the proceedings. I do support the statement that the termination was made towards the end of my probationary period and had not superseded the end date.

I am aware that the circumstances negate FWC unfair dismissal jurisdiction.” 3

[11] 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 12 November 2012, the date the Applicant was provided with her Letter of Appointment, up to 7 May 2013, the date her employment was terminated.

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

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

DEPUTY PRESIDENT

Appearances:

No appearance by the Applicant

D Lawman for Combined Communications Network Pty Ltd

Hearing details:

2013.

Sydney:

2 August.

Final written submissions:

6 August 2013

 1   Form F3 - Employer’s Response to Application for Unfair Dismissal Remedy

 2   Respondent’s short submissions on the jurisdictional question - Attachment A

 3   Statement in Response to Proceedings - 6 August 2013

Printed by authority of the Commonwealth Government Printer

<Price code A, PR540055>