Steve Hawkey v Honeywell Ltd

[2014] FWC 3738

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steve Hawkey
v
Honeywell Ltd
(U2014/4403)

COMMISSIONER WILLIAMS PERTH, 5 JUNE 2014

Termination of employment - minimum employment period.

[1] Mr Steve Hawkey (Mr Hawkey or the applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is Honeywell Ltd (the respondent).

[2] The parties agree that the applicant was first employed on 18 July 2013 and was dismissed on 17 January 2014 and that the dismissal took effect on that same date.

[3] Sections 382 and 383 of the Act provide that an employee is only eligible to make an application for an unfair dismissal remedy if they have completed the minimum employment period of:

• one year—where the employer employs fewer than 15 employees (a small business employer)



• six months—where the employer employs 15 or more employees.

[4] The applicable minimum employment period in this instance for the applicant is six months.

[5] The respondent has objected to the applicant’s application on the grounds that Mr Hawkey has not completed the six-month minimum employment period.

[6] The question to be determined by the Commission is given the applicant’s employment commenced on 18 July 2013, whether he had completed the six-month minimum employment period when he was dismissed on 17 January 2014?

[7] In the case of Mr Ryan Prigge v Manheim Fowles Pty Ltd 1 Senior Deputy President Richards dealt with a similar situation and considered prior authority on the calculation of a “month”. Senior Deputy President Richards explained that:

“[8] In the current circumstances, however, there is no dispute between the parties as to the relevant dates: the Applicant’s employment commenced on 26 February 2009 and was terminated by notice and given effect at the same time on 25 August 2009.

WAS THE APPLICANT TERMINATED WITHIN THE MINIMUM PERIOD OF EMPLOYMENT?

[9] The Applicant contends that the minimum period of employment was completed on 25 August 2009 (when he was terminated at 9.00am that day and paid 1 week’s salary in lieu of notice).

[10] The Full Bench in Wilkinson v Skippers Aviation Pty Ltd considered (amongst other matters) the calculation of the 3 month probationary period under the Workplace Relations Act 1996. In so considering how 3 months was to be interpreted, the Full Bench found as follows:

‘[30] Regulation 30B(1)(c)(i) says “3 months or less”. This is to be interpreted by reference to the relevant provisions of the Acts Interpretation Act 1901.

[31] Section 22(1) of the Acts Interpretation Act includes:

“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”.