Zhuofei Yang v Endeavour Education and Migration Pty Ltd

[2024] FWC 3369

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Zhuofei Yang
v

Endeavour Education and Migration Pty Ltd

(U2024/11969)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 4 DECEMBER 2024

Unfair dismissal application – jurisdictional objection – application dismissed

Earlier today I dismissed an application made by Zhuofei Yang under s 394 of the Fair Work Act 2009, for reasons given on transcript. In short, while I accepted Ms Yang’s contention that on 11 September 2024 she was dismissed by the respondent when she was told that she would not get any more shifts for the next few months, I concluded that she had not served the minimum employment period (s 383), which in this case was one year. In this regard, the respondent stated, and Ms Yang did not dispute, that it employed only 4 persons. There are no associated entities. I concluded that at the relevant time the respondent was a small business employer as defined in s 23 of the Act. In order to bring an unfair dismissal claim against a small business employer, a person must have served a minimum employment period of one year. There are no exceptions to this rule. Ms Yang’s period of service with the respondent, which according to her application commenced on 20 February 2024, was less than seven months. As she had not served the minimum employment period of one year, she was not a person protected from unfair dismissal (s 382). Her application was therefore dismissed.

DEPUTY PRESIDENT

Hearing details:

2024
Melbourne
4 December

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Zhuofei Yang lodged an unfair dismissal application against Endeavour Education and Migration Pty Ltd before the Fair Work Commission. Ms Yang claimed that she was dismissed on 11 September 2024 when she was informed she would not receive any more shifts for several months. The central issue before the Deputy President was whether Ms Yang had completed the minimum employment period required to bring an unfair dismissal claim against a small business employer under the Fair Work Act 2009.

The Deputy President, Colman, found that Ms Yang's employment with Endeavour Education and Migration Pty Ltd began on 20 February 2024, making her tenure less than seven months. Given the company employed only four people and had no associated entities, it qualified as a small business employer. The Act mandates that an employee must serve a minimum of one year to be protected from unfair dismissal when employed by such a small business. Ms Yang's service period did not meet this requirement, leading the Deputy President to conclude that she was not protected from unfair dismissal.

Consequently, the Deputy President dismissed Ms Yang's application on the basis that she had not fulfilled the minimum employment period necessary to claim unfair dismissal against a small business employer. The decision was made on the basis that there were no exceptions to the one-year employment requirement for small businesses, and as such, Ms Yang did not meet the statutory criteria for protection under the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established