s.394 - Application for unfair dismissal remedy

• [1] Daniel Crighton on 6 March 2025 filed an application with the Commission pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) seeking a remedy for unfair dismissal (the application). The employer, Equity Transport Group Pty Ltd (Equity) filed a response to the application on 18 March 2025. That response raised a jurisdictional objection to the application.

• [2] For an employee to be a person protected from unfair dismissal within the meaning of s.382 of the Act they must have completed a minimum employment period (MEP). Equity is not a small business. The applicable MEP is six months.

• [3] On 14 April my chambers wrote to the parties drawing attention to the objection and inviting the Mr Crighton to submit any material in relation to Equity's objection by 24 April 2025. No material was received.

• [4] On 2 May 2025 I issued further directions for Mr Crighton to file materials in relation to Equity's objection and any materials in support of his application generally by no later than 9 May 2025. I also indicated that in the absence of additional material I would proceed to determine the matter on the material filed. Nothing was received from Mr Crighton.

• [5] On the material before me Mr Crighton did not complete the applicable MEP. Equity pointed to a number of periods of unpaid leave taken by the Applicant. Section 22(2)(b) of the Act provides that periods of unpaid leave do not count as service for the purposes of ss. 383 and 384 of the Act.

• [6] When the periods of unpaid leave are deducted from the total period of Mr Crighton's employment with Equity there is not six months continuous service.

• [7] The Applicant has been provided with ample opportunity to contest Equity's objection and the basis advanced for it. The Applicant has been placed on notice that I intended to determine the matter.

• [8] I find that the Applicant did not complete the applicable MEP and, for that reason, was not a person protected from unfair dismissal.

• [9] I therefore uphold Equity's jurisdictional objection.

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