Under the (FW Act) employees are not entitled to pursue an unfair dismissal claim where their employment has been terminated prior to the completion of the minimum employment period. The minimum employment period is usually 6 months, but in the case of small employers it is 12 months.
Mr Prigge commenced employment at Manheim Fowles (a large employer) on 26 February 2009. His employment was terminated at 9:00 am on 25 August 2009 with immediate effect on one week’s pay in lieu of notice. Mr Prigge argued that his minimum employment period was completed on 25 August 2009, the day of his termination, and accordingly he was able to pursue an unfair dismissal claim. Manheim Fowles argued he had not completed the minimum employment period and was therefore excluded from the jurisdiction.
Senior Deputy President Richards considered ssection 383 of the FW Act and the precise meaning of “6 months” in order to determine whether Mr Prigge had completed the minimum employment period.
Section 383 provides:
The minimum employment period is:
- 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 …
- if the employer is a small business employer--one year ending at that time.
SDP Richards said that although it is not expressly stated, the reference to “immediately before the dismissal” in section 383(a)(ii) indicates the point in time immediately before the dismissal took effect. In this case there was no dispute that Mr Prigge was given notice of his dismissal and it took effect simultaneously at 9:00 am on 25 August 2009. The question was whether the minimum employment period was completed immediately before that point in time.
A Full Bench had found previously that “If … a period of probation which commenced on 7 January 2000 was to be of three months or less it had, in our view, to end no later than immediately before the beginning of 7 April 2000.” On applying that reasoning to Mr Prigge, SDP Richards found that the “minimum period of employment must be completed ‘immediately before the beginning of’ 26 August 2009”. He found that Mr Prigge was still within the minimum employment period until midnight on 25 August 2009 as that is the point in time which is immediately before the beginning of 26 August 2009 and that therefore the minimum employment period had not been completed.
It appears that the minimum employment periods are going to be applied very strictly. Employers who elect to terminate an employee’s employment prior to the end of the minimum employment period should therefore take particular note of the exact day by which the minimum employment period will be deemed to have been completed. They should then ensure that either notice of termination is given prior to that date, or that the termination takes effect prior to that date.