Syed Ameer Bilal Bukhari v Jatenergy Limited T/A Jatenergy Limited

[2020] FWC 3776

[2020] FWC 3776

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Syed Ameer Bilal Bukhari
v
Jatenergy Limited T/A Jatenergy Limited
(U2020/5470)

DEPUTY PRESIDENT CLANCY MELBOURNE, 17 JULY 2020

Application for an unfair dismissal remedy – jurisdictional objection – minimum employment period – Applicant served minimum employment period and protected from unfair dismissal. Application for an unfair dismissal remedy.

[1] On 22 April 2020, Mr Syed Ameer Bilal Bukhari made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal.

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Bukhari advised that he commenced employment with “Jatenergy Limited trading as Jatenergy Limited” on 29 January 2019 and that his dismissal took effect 17 April 2020.

[3] On 1 June 2020, a Form F3 – Employer response to unfair dismissal application (Form F3) was filed in response. It raised the jurisdictional objections that Mr Bukhari’s employment did not meet the minimum employment period and that his dismissal was a case of genuine redundancy.

[4] I conducted a determinative conference on 17 July 2020, at which Mr Bukhari and Mr Brett Crowley, who appeared for the Respondent in his capacity as company chairman, gave evidence and made submissions.

Preliminary Procedural issue

[5] While Mr Bukhari named “Jatenergy Limited trading as Jatenergy Limited” with the Australian Business Number (ABN) 31 122 826 242 as the Respondent in his Form F2 – Unfair Dismissal Application, the Form F3records the Respondent as “Jatcorp Limited” with the Australian Company Number (ACN) 122 826 242.

[6] In the private conference before me on 17 July 2020 referred to below at [12], Mr Crowley advised that the name of the employing entity, “Jatenergy Limited trading as Jatenergy Limited”, had been changed to “Jatcorp Limited” but the ACN of the employing entity remained the same.

[7] I have therefore determined that I should amend the application for unfair dismissal remedy made by Mr Bukhari so as to record “Jatcorp Limited” as the Respondent and I consider my doing so comes within the circumstances in which it has been held this is possible pursuant to s.586 of the Act. 1

Did Mr Bukhari serve the Minimum Employment period?

[8] In the Form F3, the Respondent asserted that Mr Bukhari began working for it in November 2019, was notified of his dismissal on 24 March 2020 and that the dismissal took effect on 14 April 2020.

[9] Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.

[10] Section 383 of the Act sets out the minimum employment period:

“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.”

[11] Having had regard to the material filed by Mr Bukhari and Mr Crowley and having considered their evidence at the determinative conference, I determined that Mr Bukhari was employed by the Respondent from 26 June 2019 until 17 April 2020. As the Form F3 indicates the Respondent had 30 employees at the time Mr Bukhari’s employment was terminated, I was satisfied that Mr Bukhari had completed the required minimum employment period in order to be protected from unfair dismissal.

[12] Having made this finding, I raised with the parties the manner of the further conduct of the matter and the process for determining the question of whether or not Mr Bukhari’s termination was a case of genuine redundancy. I determined this should first be discussed with the parties in private conference. The result of the discussions in the private conference that immediately followed was a settlement agreement, which amongst other things results in Mr Bukhari discontinuing his unfair dismissal application.

[13] This being the case, the Commission file relating to Mr Bukhari’s unfair dismissal application will now be closed.

DEPUTY PRESIDENT

Appearances:

Mr Syed Ameer Bilal Bukhari for himself.
Mr Brett Crowley for the Respondent.

Hearing details:

2020.
Melbourne (by telephone):
July 17.

Printed by authority of the Commonwealth Government Printer

PR721095

 1   Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 at [28].