s.394 - Unfair dismissal

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] Ryan Jacotine was employed by J Employment Services Pty Ltd (the Respondent) which provides services to the Leventine Hill Estate in the Yarra Valley on 16 July 2024. He was employed in the role of Grounds and Maintenance Manager.

• [2] On 14 January 2025, Mr Jacotine was given a letter of termination of his employment giving him two weeks written notice of that termination. The letter explicitly states that Mr Jacotine's employment was due to end on 28 January 2025.

• [3] The Respondent, which is not a small business employer, argues that in these circumstances Mr Jacotine 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 FW Act) are relevant to the determination of the Respondent's jurisdictional objection;

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

(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.

• [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. The relevance of the second time is that on many occasions the date on which an employee's termination took effect is the same day as when they were notified of the dismissal.

• [6] However that is not the case in this matter, with the evidence showing that Mr Jacotine was informed of the termination of his employment on 14 January 2025 but that his dismissal did not take effect until two weeks' later, on 28 January 2025.

• [7] In the context of the s.383 the phrase "immediately before the dismissal" means immediately before the dismissal took effect. Placitum (i) of s.383(a) is concerned with the time when an employee is told that their employment is to be terminated, that is they are dismissed, whereas placitum (ii) concerns itself with another event, namely the time when employment actually ends. The notice required by s.383(a)(i) is information about a forthcoming dismissal, whereas the dismissal itself is an event, not merely a decision occurring when the employment relationship comes to an end [1]

• [8] Section 40A of the FW Act provides that the Acts Interpretation Act 1901 as in force on 25 June to 2009 applies to the FW Act. The Acts Interpretation Act at the relevant date provides that the term "month" shall mean calendar month (s.22(1)(b)).

• [9] It follows in this case that the test as to the minimum employment period is a question of how long Mr Jacotine had been employed on 14 January 2025, the date that he was informed he was to be dismissed.

• [10] Self-evidently with Mr Jacotine having commenced employment on 16 July 2024, the "6 months" referred to in s.383 of the FW Act is a period ending on 16 January 2025. It is therefore the case that at the time Mr Jacotine was given notice of his dismissal he had not completed a period of employment of six months meaning that he has not completed the minimum employment period and is thus not a person protected from unfair dismissal.

• [11] In the circumstances I must dismiss Mr Jacotine's application for unfair dismissal and an order[2] to that effect is issued at the same time as the publication of this decision.

[1] See Metropolitan Fire and Emergency Services Board v Garth Duggan [2017] FWCFB 4878, [40].

[2] PR786371

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