Veronica Allan v Opteon (Victoria) Property Group

[2015] FWC 1799

[2015] FWC 1799

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Veronica Allan
v
Opteon (Victoria) Property Group
(U2015/652)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 16 MARCH 2015

Application for relief from unfair dismissal.

[1] Ms Veronica Allan alleged the termination of her employment by Opteon (Victoria) Property Group was unfair. In her application, she advised that she commenced employment on 6 August 2014 and her employment ended on 4 February 2015.

[2] An employee is required to have served six months employment (or 12 months if working for a small business) to be protected from unfair dismissal. Section 383 of the Fair Work Act 2009 provides 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.

[3] In determining whether Ms Allan had served the minimum employment period, no assessment has been made about the merits of Ms Allan’s case. The Fair Work Commission has no discretion to waive the requirements of the Act.

Consideration

[4] On 6 March 2015, a letter was sent by email to Ms Allan advising her that on the material provided she had not been employed for the minimum period of employment. She was directed to complete the outline of argument: minimum period of employment, which she did. Ms Allan was advised that unless she requested a hearing in person, by telephone or by video that the matter was be determined initially on the material she provided.

[5] Ms Allan submitted that she was employed for 182 days, which is 26 weeks, which she says is six months and two weeks. Ms Allan provided a copy of her letter of termination dated 4 February 2015 which advised that her employment had been terminated as at that date. That letter confirmed her start date as 6 August 2014.

[6] Section 397 of the Act provides that the Commission must conduct a hearing or a conference if there are disputed facts. In this case there are no disputed facts so I have not held a conference or a hearing.

[7] Section 22 of the Acts Interpretation Act 1901 as it existed at 25 June 2009 1 provides as follows:

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.

[8] Therefore the six month period from 6 August 2014 ends at midnight on 5 February 2015.

[9] As Ms Allan’s employment ended on 4 February 2015, she had not been employed for the minimum employment period and hence she was not protected from unfair dismissal and her application is dismissed.

DEPUTY PRESIDENT

 1 See s.40A of the Fair Work Act 2009

Printed by authority of the Commonwealth Government Printer

<Price code A, PR562057>