Will Van Oyen v Gail Corp Pty Ltd
[2024] FWC 3007
•30 OCTOBER 2024
| [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.
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