Whitton v Trustee for Rahul Family Trust

[2016] FWC 1334

[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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