Fair Work Act 2009_

s.394 - Application for unfair dismissal remedy

Unfair dismissal - jurisdictional objection - minimum employment period.

[1] On 31 July 2014, Mr Michael Lewis (Mr Lewis or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Altus Traffic Pty Ltd (Employer).

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] In response to the application, the Employer asserts that the Applicant is not protected from unfair dismissal of the FW Act because:

● Mr Lewis has not met the minimum employment period.

[4] To resolve the issue of whether the Applicant has met the minimum period of employment to be able to seek a remedy for alleged unfair dismissal, I issued procedural directions on 26 August 2014 advising the parties that the matter would be determined by written submissions.

[5] This is my decision and reasons for decision.

[6] There is no dispute that Mr Lewis has properly made the application in accordance with s.394(2) of the FW Act. Accordingly, the relevant statutory framework for consideration is:

"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

(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;

(1) An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

[7] The Applicant asserts in his application that he commenced employment on 27 January 2014 and his employment ceased on 30 July 2014.

[8] The Employer asserts that the Applicant commenced employment on 4 February 2014 and his employment ceased on 30 July 2014.

[9] The question for determination is, what date did the Applicant's employment commence?

[10] The Directions required the Applicant to provide any documentation to support his assertion that he commenced employment on 27 January 2014.

[11] Mr Lewis submits that he "commenced employment starting with my induction on the 27 January 2014. I was informed of job conformations (sic) for the first two weeks via phone calls..." Further, "the first payslip I received from Altus Traffic was on 19th February 2014. My first payslips for the two previous weeks were never received by me. I have filed a complaint regarding this to the Fair Work Ombudsman".

[12] The payslip provided by Mr Lewis is for the period 10-16 February 2014. In the payslip, it records that Mr Lewis worked 4 hours on 10 February 2014 and also received 1.75 hours travelling time. The total monetary amount was $130.76. That amount was deposited into Mr Lewis' financial institution on 19 February 2014.

[13] Mr Lewis states that he never received his "first payslip for the two previous weeks were never received by me".

[14] Mr Lewis may or may not have received his first payslip, but the Employer has provided a computer print out of his "Pay Details History". The print out records his first date of employment as 4 February 2014. In the pay period ending 9 February 2014, it records Mr Lewis having received a net amount of $680.48. This net amount of $680.48 was credited to his account on 12 February 2014. I note in the Bank Statement provided by the Applicant, there are no amounts credited to his account from the Employer prior to 12 February 2014.

[15] Having considered the submissions and documentation provided by both parties, I find that the Applicant commenced his employment on 4 February 2014. Accordingly, Mr Lewis has not completed the minimum period of employment to be protected from the unfair dismissal provisions contained in Part 3-2 of the FW Act. An order to this effect is issued jointly with this Decision.

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