Whitton v Trustee for Rahul Family Trust

[2016] FWC 1334
DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Melanie Whitton
v
Trustee for Rahul Family Trust T/A United Partners Transport and
Logistics Pty Ltd
(U2015/15219)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 2 MARCH 2016
Application for relief from unfair dismissal - minimum employment period.
[1] Ms Melanie Whitton alleged the termination of her employment by the Trustee for the

Arhul Family Trust t/a United Partners Transport and Logisitics (United Partners) was unfair.
In her application she advised that she commenced employment on 29 April 2015 and her
employment ended on 1 November 2015.
[2] In its employer response the United Partners stated that Ms Whitton commenced

employment on 29 April 2015 and she was notified of her dismissal on 28 October 2015.
[3] United Partners stated it were a small business as it had three employees.
[4] Mr Rahul provided a statutory declaration in which he advised that at the relevant time

he employed four casual employees and one full time employee. He further advised that Ms
Whitton was not a transferring employee. Mr Rahul advised that there were no associated
entities.
[5] Ms Whitton was directed to file any material she had to support her claim that this was

not a small business. Ms Whitton had made reference in her application to United Partners
having a cleaning franchise. Evidence provided by Mr Rahul showed that the franchise had
been relinquished prior to Ms Whitton’s termination.
[6] An employee is required to have served six months (one year if employed by a small

business) employment 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;

[2016] FWC 1334
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.
[7] The Commission is not required to hold a hearing/conference if there are no disputed

facts. Ms Whitton makes no challenge to the material filed by United Partners that it was a
small business and therefore it is not necessary to have a hearing/conference.
[8] In determining whether Ms Whitton has served the minimum employment period, no

assessment has been made about the merits of her case. The Commission has no discretion to
waive the requirements of the Act.
[9] It is not necessary for me to determine if the email sent to Ms Whitton on 28 October

2015 was received by her on that date as I have found that United Partners is a small business
and therefore the minimum period of service required was one year.
[10] On the evidence before the Commission Ms Whitton has not served the minimum

employment period.
[11] As a consequence at the time of her dismissal Ms Whitton was not protected from

unfair dismissal and her application must be dismissed.
DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the matter of Melanie Whitton versus the Trustee for Rahul Family Trust t/a United Partners Transport and Logistics Pty Ltd, the applicant contended that her dismissal was unfair. She claimed that her employment, which began on 29 April 2015, was terminated on 1 November 2015 without just cause or reason. The employer, United Partners, confirmed the dates of employment and dismissal, asserting that the applicant had not completed the requisite minimum employment period under the Fair Work Act 2009 to be protected from unfair dismissal. This case hinged on whether the employer qualified as a small business, which would necessitate the applicant to have served one year instead of the standard six months.

The primary legal issue before the court was whether United Partners qualified as a small business, thereby affecting the minimum employment period required for protection against unfair dismissal. The Fair Work Act 2009 stipulates that a small business employer necessitates a one-year service period for protection, whereas a non-small business requires only six months. The court needed to ascertain whether United Partners met the criteria for a small business and if the applicant had fulfilled the requisite service period as dictated by the employer's classification.

The court determined that United Partners was indeed a small business as it employed fewer than 15 employees, and there were no associated entities. This classification meant that the applicant needed to have served one year of employment to be protected from unfair dismissal. The evidence indicated that the applicant had been employed for approximately six months, falling short of the required one-year period. Consequently, the court found that the applicant had not met the minimum employment period and her dismissal was not unfair. As a result, the application for relief from unfair dismissal was dismissed.

The final orders of the court were that Melanie Whitton's application for relief from unfair dismissal was dismissed. The determination was based on the finding that United Partners qualified as a small business, thereby requiring the applicant to serve one year of employment to be protected from unfair dismissal. Since the applicant had not served the requisite one-year period, the application was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established