Unfair dismissal minimum employment period – The Fair Work Act sets out the minimum periods of employment that an employee must satisfy to be covered by the unfair dismissal provisions of the Fair Work Act;

Unfair dismissal minimum employment period
FAIR WORK ACT 2009 (NO. 28, 2009) – SECT 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.

If an employee who has not completed the minimum employment period submits an unfair dismissal application the employer will generally raise a jurisdiction objection seeking that the application not be allowed to proceed.

Employers must note that if an employee has completed the minimum employment period at an entity associated with the employers current business or under the control of the employer, that period of employment may be taken into account as it was in the matter of haran v Meeples P/L atf The Games Shop Trust t/a The Games Shop

In this matter before the FWC on 22 November 2017 the applicant was first employed by Games Laboratory (‘GL’) for 14 months and was employed by TGS for two months. It was the case that unless period of service with GL was recognised the minimum employment period would not have been completed.

The applicant submitted period of service with GL counted as service with TGS. The respondent argued no transfer of employment occurred as the companies were not associated entities.

At the FWC, Commissioner Harper-Greenwell found the companies to be associated entities because TGS had capacity to determine the outcome of decisions of GL or vice versa.  It was found that each entity had the same two directors, that both directors had controlling interests and equal share holdings in both companies and that the directors had practical control over the financial and operating policies of both companies,  therefore there had been a transfer of applicant’s employment and applicant’s service with GL was recognised. The jurisdictional objection dismissed.

As a result the of objection being dismissed this matter was allow to proceed the outcome of which will be reported if and when it is available.  This matter may still be settled in conciliation.

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