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Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Michael Lewis
v
Altus Traffic Pty Ltd
(U2014/11333)
COMMISSIONER CLOGHAN PERTH, 24 SEPTEMBER 2014
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.
RELEVANT LEGISLATIVE FRAMEWORK
[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
[2014] FWC 6705. Note: an appeal pursuant to s.604 (C2014/6738) was
lodged against this decision - refer to Full Bench decision dated 15 January
2015 [[2015] FWCFB 259] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB259.htm
[2014] FWC 6705
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(b) one or more of the following apply:
(i) ...
(ii) ...
(iii) ...”
“383 Meaning of minimum employment period
The minimum employment period is:
(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) ...”
“384 Period of employment
(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.
(2) ...”
RELEVANT BACKGROUND
[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?
CONSIDERATION
[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”.
[2014] FWC 6705
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[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.
CONCLUSION
[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.
COMMISSIONER
Final written submissions:
Applicant: 8 September 2014.
Respondent: 16 September 2014.
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Price code A, PR555838
