Timothy Henderson v Hertz T/A Belcardo Pty Ltd
[2017] FWC 942
•16 FEBRUARY 2017
| [2017] FWC 942 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Timothy Henderson
v
Hertz T/A Belcardo Pty Ltd
(U2017/1037)
DEPUTY PRESIDENT CLANCY | MELBOURNE, 16 FEBRUARY 2017 |
Application for an unfair dismissal remedy.
[1] On 1 February 2017, Mr Timothy Henderson made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
[2] 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.
[3] 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.
[4] Mr Henderson advised in his application that he commenced employment with Hertz T/A Belcardo Pty Ltd on 1 August 2016 and that on 30 January 2017 he was notified of his dismissal. He also stated it took effect on 30 January 2017. Mr Henderson attached to his application a letter of termination, dated 30 January 2017, which said:
“I would like to confirm that we wish to terminate your services under your contract during your probation period as of today 31/1/2017.
Please find enclosed a copy of your final pay advice for your records.
I would like to thank you for endeavours whilst you were employed at Belcardo Pty Ltd and wish you all the best in your future endeavours.
…”
[5] On 2 February 2017, a staff member of the Fair Work Commission telephoned Mr Henderson regarding the minimum employment period requirement. Mr Henderson told the staff member that 26 weeks was six months. He was advised that further correspondence would be sent to him. Correspondence was sent to Mr Henderson on the same day, pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Henderson to file in the Commission any documents or evidence to support his claim of having served the minimum employment period within 14 days.
[6] Mr Henderson replied to the correspondence on 2 February 2017 with the following:
“Attached is my payslip which shows that I started work on the 1st August and while I was dismissed on the 30th January my records indicate I completed 26 weeks of employment therefore I believe that I completed my probation period as 26 weeks is indicative of 6 months.
I have also reattached my letter of dismissal which states I was officially dismissed on the 31st even though I was presented [sic] and dismissed on the 30th.
…”
[7] Mr Henderson has submitted that 26 weeks is 6 months for the purposes of s.383 of the Act. In the case of Prigge v Manheim Fowles Pty Ltd 1 (Prigge) Senior Deputy President Richards considered prior authority on the calculation of a “month.” Senior Deputy President Richards stated:
“[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”.
[32] Section 46(1) of the Acts Interpretation Act includes:
“Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then:
(a) unless the contrary intention appears, expressions used in any instrument so made, granted or issued shall have the same meanings as in the Act conferring the power, and this Act shall apply to any instrument so made, granted or issued as if it were an Act and as if each such rule, regulation or by-law were a section of an Act”.
[33] Accordingly, no contrary intention in our view appearing, “3 months” in reg.30B(1)(c)(i) means 3 calendar months; that is, 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 third month following.
[34] If, therefore, a period of probation which commenced on 7 January 2000 was to be of 3 months or less it had, in our view, to end no later than immediately before the beginning of 7 April 2000. If it ended later than this, it was a period of more than 3 months and, pursuant to reg.30B(1)(c)(ii), a determination would have to be made whether the period was reasonable, having regard to the nature and circumstances of the employment.’
[11] I see no reason why the reasoning of the Full Bench should not apply to a minimum period of employment as stipulated at s.383 of the FW Act. Section 22(1)(b) and (g) of the Acts Interpretation Act 1901 applies to the calculation of the minimum period of employment as it applies to any other similar such statutory time period, where no contrary intention is evidence.” [Footnote omitted]
[8] The decision in Prigge (applying Wilkinson v Skippers Aviation Pty Ltd) 2 confirms that 6 months is not 26 weeks but 6 calendar months. It also confirms that Mr Henderson must have completed the minimum period of employment “immediately before the beginning of” 1 February 2017.
[9] On the material before me, I am not satisfied Mr Henderson has completed a period of employment of at least the minimum employment period as required by s.382(a) of the Act. He was given notice of his dismissal on 30 January 2017 3 and this was before he had completed the 6-month minimum period of employment.
[10] As I am satisfied Mr Henderson has not completed the required minimum employment period in order to be protected from unfair dismissal, his application has no reasonable prospects of success. Consequently, his application is dismissed under s.587(1)(c) of the Act and an Order to this effect will be issued with this Decision.
DEPUTY PRESIDENT
1 [2010] FWA 28.
2 PR903635.
3 See Fair Work Act 2009, s.383(a)(i).
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