Application dismissed


Pharmacy staff member loses unfair dismissal application

On 30 June, a former pharmacy staff member lodged an application asserting that the termination of her employment at a Melbourne pharmacy on 15 June was unfair.

In a recent hearing before the Fair Work Commission, the pharmacy objected to the application arguing that it was a small business employer at the time of the applicant’s dismissal.

It argued that the former staff member had not completed the minimum employment period of 12 months at the time of her dismissal, as required under the Fair Work Act, and was therefore not entitled to pursue relief.

The applicant agreed that her date of commencement of employment was 19 September 2019, and there was no dispute that she ceased employment on 15 June 2020—meaning her employment period was approximately nine months.

Under the Fair Work Act the minimum employment period is six months, unless the employer is a small business, in which case it is 12 months.

Meanwhile, the definition of a small business employer is one that employs fewer than 15 employees.

The pharmacy filed materials in support of its position, including evidence such as a payroll report lodged with the ATO, a fortnightly roster and a JobKeeper application that identified 10 staff members.

However the applicant failed to file any materials in respect of the pharmacy’s jurisdictional objection. She also did not challenge the pharmacy’s evidence, nor seek to be heard further regarding whether there were any associated entities that needed to be considered for the purpose of determining the number of employees.

Deputy President of the Fair Work Commission Ian Masson was “satisfied that the respondent employed less than 15 employees at the time of the applicant’s dismissal”.

“Consequently, I am satisfied that the respondent was a small business employer at the time of the applicant’s termination of employment,” he said.

He therefore found the applicant had not completed the minimum employment period of 12 months at the time of her dismissal.

Her unfair dismissal application was dismissed.

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