Youssef El Ali v Turosi Pty Ltd

[2024] FWC 2861

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Youssef El Ali
v

Turosi Pty Ltd

(U2024/10418)

DEPUTY PRESIDENT O’NEILL

MELBOURNE, 15 OCTOBER 2024

Application for an unfair dismissal remedy – minimum employment period not met – Acts Interpretation Act - meaning of six months – calendar months – application dismissed.

This is an edited version of the decision delivered ex tempore and recorded in transcript on 14 October 2024.

Mr Youssef El Ali has made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act). The respondent is Turosi Pty Ltd (Respondent).

Section 396 of the FW Act states that the Commission must decide certain matters relating to an unfair dismissal application before considering the merits of the application. One of these matters, is whether the person was ‘protected from unfair dismissal’. Section 382 states that a person is protected from unfair dismissal if the person has completed a period of employment with the employer of at least the ‘minimum employment period’ and meets certain other conditions.

Section 383 states that the ‘minimum employment period’ that a person must have served with an employer in order to be able to bring an unfair dismissal application, is six months, or, where the employer is a small business employer, one year.

The Respondent is not a small business employer and, accordingly, the minimum employment period is six months.

The Applicant states (and the Respondent agrees) that he commenced employment on Monday 4 March 2024 and that the dismissal took effect on Tuesday 3 September 2024. The Respondent effected the termination at a meeting at about 2pm on 3 September 2024.

The Respondent also provided evidence that on 11 April 2024 and 8 August 2024, the Applicant was absent from work on unpaid leave and submits that these two days do not count as service, pursuant to the definition of ‘service and continuous service’ in section 22 of the FW Act.[1]

The FW Act does not include a definition of ‘months’. However, section 40A of the FW Act provides that the Acts Interpretation Act 1901 (Cth) (AIA) applies to the FW Act, as in force on 25 June 2009. The AIA “is like a dictionary and manual to use when reading and interpreting Commonwealth Acts and instruments made under Commonwealth Acts.”[2] It contains definitions of many common terms in Commonwealth legislation, which enables other legislation, including the FW Act to be shorter, less complex and more consistent in operation.

As at 25 June 2009, section 22 of the AIA provided:

(1)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 corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month;
…

Accordingly, the minimum employment period for the Applicant was six calendar months from 4 March 2024, ending at midnight on 3 September 2024. There is no indication in the FW Act of any contrary intention. However, the Applicant’s employment had been terminated prior to this time.

Further, I accept the Respondent’s evidence that the Applicant’s period of continuous service is reduced by two days of unpaid leave on 11 April and 8 August 2024.

Accordingly, the Applicant, having not served six calendar months of employment, has not satisfied the minimum employment period. The Commission has no power under the FW Act to extend or to waive this period. Mr El Ali was therefore not a person protected from unfair dismissal and the Commission has no power to determine the merits of his claim.

The application is dismissed. An order to that effect will be issued separately.

DEPUTY PRESIDENT

Appearances:

Y. El Ali, the Applicant, appearing on his own behalf.
A. Tulic, appearing on behalf of the Respondent.

Hearing details:
2024
14 October.

[1] Respondent’s Outline of Submissions, Digital Hearing Book p.20.

[2] Acts Interpretation Act 1901 (Cth), cl.1A.

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission, presided over by Deputy President O'Neill, was asked to consider whether an application for an unfair dismissal remedy could proceed in the case of Youssef El Ali versus Turosi Pty Ltd. The applicant, Mr El Ali, sought relief under section 394 of the Fair Work Act 2009, claiming that his dismissal by Turosi Pty Ltd was unfair. The central issue for the Commission was whether Mr El Ali had met the statutory requirement of completing a minimum employment period with the respondent before his dismissal. According to section 382 of the Act, an individual is protected from unfair dismissal if they have completed a minimum employment period with their employer, which is defined by section 383 as six months for employers that are not small businesses.

The Commission examined the evidence provided by both parties, which included the dates of Mr El Ali's employment and the timing of his dismissal. Mr El Ali commenced employment on 4 March 2024, and the dismissal took effect on 3 September 2024. However, the respondent provided evidence that the applicant had taken two days of unpaid leave on 11 April 2024 and 8 August 2024, which the respondent argued should not count towards the minimum employment period. The Commission agreed with the respondent, determining that these two days should not be considered as part of the applicant's continuous service. As a result, Mr El Ali did not meet the statutory requirement of six calendar months of employment with the respondent before his dismissal. The Commission concluded that Mr El Ali was not protected from unfair dismissal under the Act and therefore dismissed his application.

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