s.394 - Application for unfair dismissal remedy

Application for unfair dismissal. Objection - not completed the minimum employment period.

Minimum employment period ends on the earlier two times - relevant to this matter, when the

employee is given notice of their termination. Objection upheld, and application dismissed.

• [1] Jovan Apostolovic was employed by the University Of New South Wales (the Respondent) on 14 November 2024.

• [2] On 13 May 2025, at 3.54pm, Mr Apostolovic was sent an email advising of the termination of his employment. The email stated "Your termination date will be 13 May 2025. You will be paid one week in lieu of notice".

• [3] The Respondent, which is not a small business employer, argued that in the circumstances Mr Apostolovic is not a person protected from unfair dismissal as he has not completed the minimum employment period, being one of the tests for eligibility of a person to commence an unfair dismissal application.

• [4] Sections 382 and 383 of the Fair Work Act 2009 (the Act) are relevant to the determination of the Respondent's jurisdictional objection. They provide:

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

(b) one or more of the following apply:

(i) a modern award covers the person;

(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.

(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;

(ii) immediately before the dismissal; or

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

• [5] Relevant to this matter is that as set out in s.383 the minimum employment period ends at the earlier of two times; the time when the person is given notice of the dismissal or a time immediately before the dismissal. Mr Apostolovic submitted that his ordinary hours of work were 35 hours a week ceasing at 3.30pm on each workday. As he was advised of his dismissal at 3.54pm, 24 minutes after his work for the day ceased, he had already completed a 6-month employment period.

• [6] The Full Bench in Wilkinson v Skippers Aviation Pty Ltd [1] considered (amongst other matters) the calculation of the 3-month probationary period under the Workplace Relations Act 1996. In so considering how 3 months was to be interpreted, the Full Bench found as follows:

"[30] Regulation 30B(1)(c)(i) says "3 months or less". This is to be interpreted by reference to the relevant provisions of the Acts Interpretation Act 1901.

[31] Section 22(1) of the Acts Interpretation Act includes:

"In any Act, unless the contrary intention appears:

(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".

[32] Section 46(1) of the Acts Interpretation Act includes:

"Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then:

(a) unless the contrary intention appears, expressions used in any instrument so made, granted or issued shall have the same meanings as in the Act conferring the power, and this Act shall apply to any instrument so made, granted or issued as if it were an Act and as if each such rule, regulation or by-law were a section of an Act".

[33] Accordingly, no contrary intention in our view appearing, "3 months" in reg.30B(1)(c)(i) means 3 calendar months; that is, 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 third month following.

[34] If, therefore, a period of probation which commenced on 7 January 2000 was to be of 3 months or less it had, in our view, to end no later than immediately before the beginning of 7 April 2000. If it ended later than this, it was a period of more than 3 months and, pursuant to reg.30B(1)(c)(ii), a determination would have to be made whether the period was reasonable, having regard to the nature and circumstances of the employment."

• [7] Section 22(1)(b) and (g) of the Acts Interpretation Act 1901 apply to the calculation of the minimum period of employment.

• [8] The minimum period of employment must be completed "immediately before the beginning of" 14 May 2025, which is immediately before the beginning of the corresponding day of the sixth month following the date on which the Applicant's employment commenced.

• [9] It cannot be found that the Applicant had completed the minimum period of employment. This is because the Applicant, until midnight on 13 May 2025, was still within, or was still to complete the minimum period of employment, which must be taken to be the point in time which is immediately before the beginning of 14 May 2025.

• [10] I must dismiss the Applicant's application under s.394 of the FW Act, as he was an employee who had not completed the minimum period of employment , and so did not have access to an unfair dismissal remedy.

[1] Richard Wilkinson v Skippers Aviation Pty Ltd [PR903635].

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