Will Van Oyen v Gail Corp Pty Ltd

[2024] FWC 3007

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Will Van Oyen
v

Gail Corp Pty Ltd

(U2024/8576)

DEPUTY PRESIDENT DEAN

CANBERRA, 30 OCTOBER 2024

Application for an unfair dismissal remedy – minimum employment period not met.

This decision, now edited, was made in transcript at the conclusion of the hearing held on 30 October 2024.

Mr Will Van Oyen (Applicant) has made an application for a remedy pursuant to s.394 of the Fair Work Act 2009 alleging that he was unfairly dismissed from his employment with Gail Corp Pty Ltd (Respondent).

The Respondent objects to the application on a number of grounds, including that it is a small business employer and the Applicant had not served the minimum employment period of twelve months and is therefore not a person protected from unfair dismissal provisions of the Act.

There is no dispute that the Applicant’s employment commenced on 1 June 2023, and that he claimed his dismissal took effect on 3 July 2024. There is also no dispute that the Applicant took a period of unpaid leave from 28 April 2024 for an overseas trip and returned from leave on 14 June 2024.

In accordance with s.22(3) of the Act, the Applicant’s period of unpaid leave is an ‘excluded period’ which does not count towards the length of his continuous service. The Applicant had worked for the Respondent for 10 months and 28 days prior to taking the unpaid leave, and on returning he worked for a further 20 day period until his dismissal on 3 July 2024. As a result, the Applicant’s period of employment with the Respondent fell short of the 12 months minimum employment period.

For these reasons, I am satisfied and find that the Applicant had not completed the minimum employment period required to be protected from unfair dismissal, and accordingly his application is dismissed.

DEPUTY PRESIDENT

Appearances:

W Van Oyen on his own behalf.
K Santos for Gail Corp Pty Ltd.

Hearing details:
2024.
By telephone:
October 30.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Mr Will Van Oyen, has applied to the Fair Work Commission under section 394 of the Fair Work Act 2009, seeking a remedy for an unfair dismissal by his former employer, Gail Corp Pty Ltd. The applicant claims that his dismissal was unfair, as he was dismissed before completing the requisite 12-month minimum employment period. Gail Corp Pty Ltd contests the application on multiple grounds, asserting that the applicant's period of employment was insufficient to grant him protection under the Act, and additionally that the company qualifies as a small business employer.

The key legal issue before the court was whether the applicant's employment period with Gail Corp Pty Ltd was sufficient to confer protection under the unfair dismissal provisions of the Act. This hinges on whether the applicant's employment period, when accounting for an excluded period of unpaid leave, met the minimum 12-month requirement. The court considered whether the period of unpaid leave should be included in the calculation of continuous service and the implications of the Fair Work Act’s provisions regarding excluded periods.

In reaching its decision, the Deputy President examined the facts of the case, including the applicant's start date and the period of unpaid leave. The court found that the applicant's continuous service, when excluding the period of unpaid leave, was 10 months and 28 days prior to the leave, and an additional 20 days after returning from leave, totaling 11 months and 48 days. Given that the applicant did not reach the 12-month threshold, the court concluded that he did not meet the minimum employment period necessary to be protected from unfair dismissal. Consequently, the application was dismissed.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established