By Charles Power

The unfair dismissal scheme provided in the Fair Work Act 2009 (Cth) (FW Act) will not apply to an employee who has not served the qualifying period. That period is six months or 12 months if the employer is a small business employer (i.e. at the time of dismissal, it and any associated entities employ fewer than 15 employees).

However, you should appreciate that an employee dismissed before the expiration of the relevant qualifying period is still able to challenge the dismissal under the FW Act general protections scheme.

This was highlighted in the recent Federal Magistrates’ Court decision in Pacheco-Hernandez v Duty Free Stores Gold Coast Pty Ltd (2018).

In this case the dismissed employee claimed her dismissal after five months of service as a retail supervisor was because she provided a statement in connection with a workers’ compensation claim that another employee had made, and because she had made complaints in relation to her employment.

The Court identified two managers who made the decision to terminate the employee’s employment. The Court sought to determine why these people dismissed the employee.

One of the managers was not called by the employer to give evidence in the hearing, which led the Court to assume this was because the evidence would not assist with the employer’s case.

The evidence of the other manager, according to the Court, was at a level of such generality that did not exclude at least the complaints made by the employee as being a substantial and operative factors in the dismissal decision.

The manager said the employee did not “fit within the team” and did not exhibit “respect for management”. She denied the dismissal was based on the employee’s involvement in the worker’s compensation claim or any complaints she made on being allegedly bullied by her co-workers. However this denial was not explored in evidence.

The Court was not satisfied that the employer had proved that it terminated the employment of the employee for a reason or reasons that did not include as a substantial and operative factor the employee having exercised her workplace rights, namely to make a complaint about her employment and to participate in a workers’ compensation claim process.

Therefore, the Court ruled the employer had not proved that it had not dismissed the employee because she had exercised her workplace rights.

The employee was awarded compensation based on a conclusion that her employment would have continued for a further 8 weeks.

The employer was ordered to pay the employee $9,205.32 and contribute $812.11 to her superannuation fund.