[2010] FWA 28 Download Word Document FAIR WORK AUSTRALIA DECISION Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Mr Brian Prigge v Manheim Fowles Pty Ltd (U2009/871) SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 7 JANUARY 2010 Termination of employment – minimum employment period – meaning of 6 months. [1] In this matter, Mr Prigge (“ the Applicant ”) made application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (“ the FW Act ”) in relation to the termination of his employment by Manheim Fowles Pty Ltd (“the Respondent”). [2] The matter was the subject of a conciliation conference, but remained unresolved. [3] The Respondent subsequently pressed a jurisdictional objection to the application proceeding. The jurisdictional objection was based on a claim that the Applicant had not completed the minimum period of employment stipulated at s.383 of the FW Act. [4] Section 383 of the FW Act reads as follows: “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) if the employer is a small business employer—one year ending at that time.” [5] In the case before me, there is no challenge that the Respondent is not a “small business employer” and that s.383(a) of the FW Act applies. [6] Item 1515 of the FW Act Explanatory Memorandum indicates that the minimum employment period is “is assessed either when the person is given notice of the dismissal, or when the dismissal actually takes effect, whichever happens first.” [7] Consequently, it may be that the point in time which is “immediately before the dismissal” (for purposes of s.383(1)(a)(ii) of the FW Act) indicates the point in time immediately before the dismissal actually took effect, though the plain words of the FW Act may not establish this nexus expressly. [8] In the current circumstances, however, there is no dispute between the parties as to the relevant dates: the Applicant’s employment commenced on 26 February 2009 and was terminated by notice and given effect at the same time on 25 August 2009. WAS THE APPLICANT TERMINATED WITHIN THE MINIMUM PERIOD OF EMPLOYMENT? [9] The Applicant contends that the minimum period of employment was completed on 25 August 2009 (when he was terminated at 9.00am that day and paid 1 week’s salary in lieu of notice). [10] 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: ... (b) `Month' shall mean calendar month; ... (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.” [11] I see no reason why the reasoning of the Full Bench should not apply to a minimum period of employment as stipulated at s.383 of the FW Act.  Section 22(1)(b) and (g) of the Acts Interpretation Act 1901 applies to the calculation of the minimum period of employment as it applies to any other similar such statutory time period, where no contrary intention is evidence. [12] On the Full Bench’s reasoning, the minimum period of employment must be completed “immediately before the beginning of” 26 August 2009, which is “immediately before the beginning of the corresponding day of the sixth month following the date on which the Applicant’s employment commenced. [13] In the case before me, the Applicant’s employment was terminated at 9.00am on 25 August 2009. [14] It cannot be found, therefore, that the Applicant had completed the minimum period of employment. This is because the Applicant, until midnight on 25 August 2009, 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” 26 August 2009. [15] Nothing turns on whether the Applicant was paid 1 week’s salary in lieu of notice. CONCLUSION [16] On the basis of the above discussion, I must dismiss the Applicant’s application under s.394 of the FW Act, as an employee who has not completed the minimum period of employment as I have found it to be does not have “access to an unfair dismissal remedy”, as Item 1512 of the Explanatory Memorandum puts it. SENIOR DEPUTY PRESIDENT 1 Richard Wilkinson v Skippers Aviation Pty Ltd [ PR903635 ] (Appeal by Richard Wilkinson against the decision of Senior Deputy President Polites in transcript of 14.12.00 and in writing of 15.12.00 (Print T4653) in matter U No.60132 of 2000 (C No. 2001/51)) Printed by authority of the Commonwealth Government Printer <Price code A, PR992316>