Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for unfair dismissal remedy - minimum employment period - meaning of 'month'

• [1] Ms. Jemima Jones (Applicant) commenced full-time employment with Strategic Collision Repair Group Pty Ltd (Respondent) on 8 October 2024. On the afternoon of 7 April 2025, the Applicant was called to the office of the Respondent and told that her employment was being terminated. The Applicant said that she was told by the site manager during that conversation that "today will be your last day."

• [2] A written notice of termination dated 7 April 2025 which was provided to the Applicant, included the following:

Termination of your employment during probation period

I write to confirm that SCRG has made the decision to terminate your employment consistent with your contract of employment during the probationary period.

The company has elected to make a payment to you of one week in lieu of notice. You will also be paid any accrued annual leave entitlements

• [3] On the evening of 7 April 2025, the Applicant filed an application alleging that the Respondent had unfairly dismissed her. The Applicant sought a remedy for that alleged unfair dismissal under Part 3-2 of the Fair Work Act 2009 (Cth)(Act). The Respondent objected to the application on the basis that the Applicant was not a person protected from unfair dismissal under s.382 of the Act because the Applicant had not completed a period of employment of at least the minimum employment period.[1]

• [4] Section 396(b) of the Act obliges the Commission to decide whether a person was protected from unfair dismissal before considering the merits of the application. I determined that it was appropriate to deal with the Respondent's objection as a discrete issue and made directions for the parties to file material going to that issue only. As there were no contested facts on the material filed,[2] and with the consent of the parties, the matter was determined on the papers.

• [5] The Applicant said that the Respondent had paid her for a full day of work on 7 April 2025 and then commenced payment in lieu of notice from 8 April 2025. The Applicant submitted that the written notice of termination did not specify the date or time of termination and that it was unclear from the notice whether the termination was effective immediately, at the end of the working day or following a period of notice. Further, the Applicant submitted that the effect of s.117 of the Act was that when an employer elected to provide payment in lieu of notice, the employee's termination date is the date the payment 'takes effect' not the date the employee was informed of the dismissal. The Applicant argued that the termination of her employment took effect on the day the notice payment commenced, namely 8 April 2025 and that as a result, the Applicant met the minimum employment period under s.383(a).

• [6] If a person is not protected from unfair dismissal then irrespective of the circumstances of their dismissal, they are not entitled to a remedy under Part 3-2 of the Act.[3] Section 382 sets out the circumstances that must exist for an Applicant to be protected from unfair dismissal:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

• [7] The minimum employment period is defined in s.383:

(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;

(b) if the employer is a small business employer - one year ending at that time.

• [8] It was not in issue in this case that that the Respondent was not a small business employer as defined, and that the minimum employment period here was 6 months in accordance with s.383(a). Nor was it disputed that the Applicant commenced her employment with the Respondent on 8 October 2024.

• [9] Section 40A of the Act provides that the Acts Interpretation Act 1901 as in force on 25 June 2009 (AI Act) applies to the Act. Section 22(1)(b) of the AI Act provided that unless a contrary intention appears, the word "month" in any Act means calendar month. "Calendar month" is defined, in turn in s.22(1), as:

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

• [10] The effect of these provisions is that in circumstances where it is accepted that the Applicant's employment commenced on 8 October 2024 the Applicant would not have completed the minimum employment period until midnight on 7 April 2025.[4]

• [11] The Applicant's contention that she met the minimum employment period must be rejected. The minimum employment period ended at the earlier of the time when the Applicant was given notice of the dismissal or immediately before the dismissal. On her own version of events, the Applicant was given notice of her dismissal on the afternoon of 7 April 2025. That notice was sufficient to constitute a notice of dismissal for the purposes of s.383(a). The written termination notice, while not expressly specifying the date of termination, is dated 7 April 2025 which is consistent with the verbal notice given to the Applicant on that day. It is also apparent that the Applicant herself was in no doubt that she had been given notice of the dismissal on 7 April 2025. Her application was filed later that day and specified 7 April 2025 as the date the dismissal took effect. Nor does the payment in lieu of notice at some later time alter the result. It is the time when the person is given the notice of dismissal (or the time immediately before the dismissal) that is the relevant time. Here that notice was given on the afternoon of 7 April 2025.

• [12] For completeness, even if there were non-compliance with s.117, this does not, as the Applicant submitted, have the effect of altering the relevant time for the purpose of calculating the minimum employment period to the date of the payment, or render a notice of dismissal otherwise ineffective for the purposes of s.383(a)(i).[5]

• [13] The Respondent's objection is upheld. The Applicant is not a person protected from unfair dismissal and the application is dismissed. An order to that effect will issue separately.

[3] Twomey v. Que 5 Pty Ltd [2024] FCAFC 30 at [9].

[4] Wilkinson v Skippers Aviation Pty Ltd PR903635 at [31]. And see for example Williamson v War Veterans Homes Myrtle Bank Incorporated t/as RSL Care SA [2016] FWC 7988 at [14] and Joy v. Trustee for Nethercote Balson Unit Trust [2025] FWC 731 at [15].

[5] Metropolitan Fire and Emergency Services Board v Garth Duggan [2017] FWCFB 4878 at [32]- [34].

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